Johnson v. Wingert, 108,540.Released for Publication by Order of the Court of Civil Appeals of Oklahoma

• Decision Date: 27 October 2011
• Docket Number: No. 108,540.Released for Publication by Order of the Court of Civil Appeals of Oklahoma,Division No. 3.,108,540.Released for Publication by Order of the Court of Civil Appeals of Oklahoma
• Parties: Jeremy JOHNSON, Petitioner/Appellee, v. Amy WINGERT, Respondent/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2011 OK CIV APP 128

268 P.3d 145

Jeremy JOHNSON, Petitioner/Appellee,

v.Amy WINGERT, Respondent/Appellant.

No. 108,540.Released for Publication by Order of the Court of Civil Appeals of Oklahoma

Division No. 3.

Court of Civil Appeals of Oklahoma, Division No. 3.

Oct. 27, 2011.

Appeal from the District Court of Kay County, Oklahoma; Honorable D.W. Boyd, Judge.Lori L. Young, Young Law Office, Ponca City, OK, for Petitioner/Appellee.

Melissa F. Cornell, Robertson Cornell, Tulsa, OK, for Respondent/Appellant.

BAY MITCHELL, Presiding Judge.

¶ 1 In this modification of child custody proceeding, Respondent Amy Wingert (Mother) appeals from the trial court's order sustaining Petitioner Jeremy Johnson's (Father) Motion to Modify Custody. The trial court sua sponte terminated the parties' joint custody arrangement, finding joint custody was no longer viable and a permanent and material change of conditions had occurred since the entry of the original custody order. The trial court concluded it was in the best interest of SLJ to be placed in the primary custody of Father, with Mother to have visitation with SLJ pursuant to the Kay County Standard Long Distance Visitation Schedule.

¶ 2 Mother filed the present appeal arguing the original award of joint custody was void for failure to comply with 43 O.S.2001 § 109, and the trial court erred in its application of the “change of conditions” test.¹, ² ¶ 3 Mother and Father had a relationship of which one child, SLJ, was born on January 19, 2004. Mother had custody and control of SLJ from the time of the child's birth. In October 2004, the parties entered into, and the judge signed, an agreed Temporary Order Establishing Child Custody and Child Support wherein Mother had primary residential custody and Father had standard visitation. The temporary order recognized that “both parents are fit to have joint custody” of SLJ. The initial child support computation divided support 50/50 between Mother and Father.

¶ 4 The final Order Establishing Paternity, Visitation, etc. Regarding Minor Child was entered on August 1, 2005. The Order again recognized that “both parties are fit and proper to have joint custody” of SLJ with Mother being the primary custodial parent. At the time, Father was serving in the Armed Forces and was granted visitation with SLJ during periods when Father was on leave with forty-eight (48) hours notice to Mother. Child support was computed at seventy-one percent (71%) from Father and twenty-nine percent (29%) from Mother. In July 2007, the court entered a Stipulated Order Modifying Visitation and Child Support wherein it was noted Father was still serving in the military but no longer living in the barracks on base. Father was granted additional visitation with SLJ of no less than 3 months per year and his child support obligation was increased. This order also states that pursuant to the 2005 order, “the parties were awarded joint custody.”

¶ 5 Father filed a Motion to Modify Custody in February 2010 requesting the parties continue to share joint custody of SLJ but primary physical custody of SLJ be changed to Father. In support of his Motion, Father alleged Mother failed to ensure SLJ attended school regularly and was tardy on multiple occasions. Father suggested Mother failed to enforce proper discipline with SLJ, resulting in disrespectful behavior by the child. Father contended Mother was reported as “sleeping all of the time” including one incident in which the paternal grandmother had Mother's apartment unlocked by the property manager when Mother failed to answer the door or multiple telephone calls. Father complained Mother regularly transported SLJ in the front seat of the car and failed to require the child to wear a seatbelt. Finally, Father claimed Mother did not allow reasonable attempts by Father to communicate with the child by telephone.

¶ 6 The hearing on Father's Motion to Modify was set on March 4, 2010, and proof of personal service on Mother was filed on February 24, 2010. Mother failed to appear for the hearing and the trial court found Mother in default. A journal entry memorializing this order was also filed on March 4, 2010. The Order Modifying Custody contained no mention of any prior joint custody order nor did the Order contain any findings of a material change in circumstances sufficient to warrant a change in custody. The Order merely stated: “That it is in the best interest of the child, [SLJ], that Petitioner be awarded sole custody of the child.”

¶ 7 The trial court awarded Father sole custody of SLJ, terminated Father's child support obligation, and ordered that the paternal grandmother, J. Donna Jeffries (Jeffries), and the paternal uncle had the authority to obtain care and custody of SLJ and transport her to Father's home state of Virginia. By noon on March 4, 2010, SLJ was removed from school without notice to Mother and taken to Virginia.

¶ 8 Mother filed a Motion to Vacate on March 5, 2010 alleging Father on two separate occasions told Mother to disregard the Motion to Modify as he was telling his attorney not to proceed with the action. Mother further alleged Father told her she did not have to attend the hearing. Mother filed a Motion to Stay Proceedings and Enforcement of Order Modifying on March 11, 2010 pending the hearing on Mother's Motion to Vacate. Eventually, the trial court vacated the March 4 Order as a final order, but ruled it should be treated as a temporary order to remain in effect during the pendency of the action. The evidentiary hearing on Father's Motion to Modify was conducted over two days on April 30, 2010 and May 4, 2010.

¶ 9 Father testified extensively regarding the basis for filing his Motion to Modify. Father testified he began having concerns about Mother's parenting decisions regarding discipline, the child's living conditions, SLJ's school attendance in Pre–Kindergarten and Kindergarten, and three (3) separate instances in which Mother failed to pick SLJ up from school.³ Father decided to file his Motion to Modify the third and final time Mother failed to pick SLJ up from school. Father also indicated he received a phone call from a friend wherein he learned Mother on one occasion had transported SLJ in the car in an unsafe manner.⁴

¶ 10 Father described the extent of his support, visitation and communication with SLJ from 2004 until the change of custody in 2010. He reenlisted in the military in November 2004 before SLJ's first birthday and was stationed in Virginia. Due to his military service, which included a fifteen (15) month deployment to Iraq, he identified seven (7) instances in which he was able to exercise visitation with SLJ between November 2004 and August 2009. Father stated he thought he had additional visitation with SLJ during those years but could not recall any dates or other specifics. He testified he made attempts to communicate with SLJ via telephone from 2004 until the change in custody in 2010, which were hindered due to SLJ's age and attention span.

¶ 11 Mother testified that she had lived in the same apartment for seven (7) years and in the same apartment complex for ten (10) years. She admitted she occasionally allowed SLJ to ride in the front seat of her car, because she thought it was acceptable under the law. Mother stated she did not seek full-time employment from 2004 through 2009, because she was in school full-time and trying to raise her daughter. Mother obtained full-time employment after Father filed the Motion to Modify.

¶ 12 Mother discussed the three instances in which she failed to pick up SLJ from school on time. She stated the first time SLJ was not picked up Mother was ill and had taken cold medicine causing her to fall asleep. The second occasion was a miscommunication between Mother and her friend, Regina McCloud (McCloud), resulting in Mother picking SLJ up late from school.⁵ Regarding the third time SLJ was not picked up from school, Mother testified she sent multiple text messages to Jeffries asking Jeffries to pick up SLJ. Jeffries testified she did not receive text messages from Mother until after school had dismissed for the day and never responded to any of the text messages. Mother produced telephone records showing multiple text messages sent to Jeffries' telephone number, as well as a return text message from Jeffries prior to the end of the school day.

¶ 13 Mother offered the testimony of Crystal Lynn Reece (Reece), SLJ's teacher in Pre–Kindergarten and Kindergarten at Liberty Elementary in Ponca City, Oklahoma. Reece described SLJ as a very nice little girl. Reece never had any concerns about SLJ's manners or any difficulties with her conduct at school. Reece indicated SLJ was always respectful of her teachers and wanted to learn and participate in school. Reece stated SLJ progressed academically and met the benchmarks expected for her age group.

¶ 14 Reece discussed SLJ's absences with Mother and understood many of the absences in Pre–Kindergarten were due to ear problems and illnesses. Reece did not believe that SLJ's absences or tardies affected her academically. Reece did not have any concerns with SLJ during her Kindergarten year and reiterated SLJ was progressing normally. Reece rated Mother's involvement at the school as average and stated she saw Mother at the school a lot more than some other parents.

¶ 15 In announcing its ruling on Father's Motion to Modify, the trial court specifically noted the safety and welfare of SLJ was not an issue. In discussing the existence of a joint custody arrangement, the trial court recognized: “But this is not a joint custody arrangement.” The trial court then stated:

Counsel for Respondent argued that it truly wasn't a joint custody arrangement because it had not been completed by the parties submitting a joint custody plan. In a formal sense, they did not. In a formal sense, the Court did not adopt a plan, but they had a plan and that plan is no longer viable. A...