Kaiser v. Kaiser

• Decision Date: 03 April 2001
• Docket Number: No. 93,761.,93,761.
• Citation: 2001 OK 30,23 P.3d 278
• Parties: Toby Kay KAISER, Appellant, v. Darren Gene KAISER, Appellee.
• Court: Oklahoma Supreme Court

23 P.3d 278

2001 OK 30

Toby Kay KAISER, Appellant, v. Darren Gene KAISER, Appellee.

No. 93,761.

Supreme Court of Oklahoma.

April 3, 2001.

As Corrected May 14, 2001.

Catherine Holland Petersen, Salliann Parker Walker, Petersen Associates, Inc., Norman, OK, and Lauren LeBlanc Day, Oklahoma City, Attorneys for Appellant.

Bill J. English, English & Odom, Norman, OK, Attorneys for Appellee.

SUMMERS, J.

¶ 1 This is an appeal by a mother and custodial parent of her seven-year-old son, from the trial court's order which denied her permission to move from Oklahoma to a suburb of Washington, D.C. with the boy. She asked the court to modify the existing visitation schedule for father, as changes would be necessitated by her intended employment-related move. The father opposed her move, contending the changes in visitation would be detrimental to their father-son relationship. The trial court denied mother's motion, ruling that the son could not be moved away from his father. Mother declined the job offer and stayed in Oklahoma in order to retain custody. Her appeal presents this Court its first opportunity to directly address issues which have been raging in our sister states in recent years regarding the right of a custodial parent to relocate. We reverse the trial court's judgment and remand the matter with directions.

I.

¶ 2 After ten years of marriage Toby and Darren Kaiser, residents of Norman, were divorced in 1994. Mother was awarded custody of two-year-old Warren, and the father was granted standard visitation rights. The record shows that the parties had a difficult post-divorce relationship which resulted in a litigious history. Father unsuccessfully sought to modify Warren's custody, based on her decision to enroll Warren in the first grade at Casady School in Oklahoma City rather than send him back to the school in Norman where he had attended kindergarten. As a consequence of stress in the parents' relationship which was exacerbated by their protracted litigation, the trial court, with the consent of the parents, appointed a counselor for Warren. A guardian ad litem was also appointed to represent his interests in the litigation then pending. The father's motion to modify was resolved by agreement of the parties in April 1999. Under it custody remained with mother, father's visitation time was increased (to 36% of Warren's time), and mother was authorized to move to Oklahoma City with Warren and to keep him enrolled in Casady.

¶ 3 On July 30, 1999 mother filed the motion to modify at issue here. It advised the court that she had recently accepted an employment position as Program Analyst of the International Space Station at the N.A.S.A. Headquarters in Washington, D.C., and because of this intended relocation, father's visitation schedule needed to be modified.

¶ 4 Father responded by filing an objection to mother's move alleging she was attempting to "freeze" him out of Warren's life. He also filed an application seeking to have the court award temporary custody of Warren to him and to establish visitation rights for mother and order her to pay child support.

¶ 5 Trial was had on mother's motion for four partial days. Mother's testimony showed she had been a civilian employee at Tinker Air Force Base for twelve years; her grade was GS-12, step 6, with an annual salary of $55,874. She had been at the same GS-12 grade for nine years, and had been unable to get a promotion beyond that. She testified that it was very unlikely that she would ever advance above that grade at Tinker.

¶ 6 Mother testified that on July 19 she was offered this position which she had accepted, and that her job would be managing the budget for the International Space Station for the Director of NASA. She testified this job was the "opportunity of a lifetime"; it offered significant advancement for her career and many personal advantages because of the increased responsibility, significant increases in income and retirement, and better marketability if she quit or retired from the government. She stated the NASA budget is ten times larger than the one she currently manages, and the job is a GS-13, target 15. That means that she would enter the position as a GS-13 at an annual salary of $61,895, that after one year's service she would receive an automatic promotion to a GS-14 at $68,570, and that after one year at that grade she would be promoted to a GS-15 at $80,658. Mother testified that because Warren was more important to her than any job, she would not move if she could not take him with her.

¶ 7 She stated that she was familiar with the Alexandria, Virginia area and knew that an appropriate apartment would be affordable with her salary; that she had not yet decided whether she would rent or purchase a home, but that NASA would provide her and Warren with two months free temporary housing, as well as all the costs of selling her current home and those of purchasing a new one. Mother testified that the two private schools she was considering for Warren were similar to Casady; one school had already admitted him and offered financial aid, and she could drive Warren to school in ten minutes. She stated that the educational and cultural opportunities which would be available to Warren in the Washington area are unrivaled anywhere in the country, and that the increase in her salary from this position would help her pay for his college. ¶ 8 Mother asked the court to modify father's visitation schedule to facilitate less frequent but longer periods of visitation which would be appropriate to Warren's school schedule and the availability of travel arrangements. She stated that she agreed to Warren visiting his father for eight continuous weeks in the summer, two spring breaks out of every three, a week every Christmas, alternating Thanksgivings, and alternating fall breaks. By extending one long weekend in every month, his father could see Warren on the average of five to six days per school month and his visitation would work out to be 30% of Warren's total time. Mother testified that there were good airline connections between Oklahoma City and Washington D.C., that she and her mother were prepared to fly with Warren, and if Warren flew into Dallas her mother was willing to bring him from there to Oklahoma City. Mother proposed an equal split of transportation costs. She also anticipated furnishing Warren with video conferencing equipment so he and his father could communicate in that way.

¶ 9 An employee of the Inspector General's Office at Tinker testified for mother, and confirmed that GS-12's at Tinker stayed at that grade "forever," and that she could not reasonably expect to be promoted there. He himself was a GS-12 and had been one for ten years. He also testified that there is no such thing as a GS-13, target 15, job at Tinker.

¶ 10 The psychologist who had been asked by the court in 1998 to monitor Warren's adjustment during the continuing litigation between his parents, testified as a witness for mother that he had met with Warren sixteen or seventeen times, and had visited with mother briefly almost as many times. He testified that he had recommended to mother that she should accept this opportunity. He acknowledged that the move would be a difficult adjustment for Warren because he has a positive relationship with his father and step-mother, and he would miss them and his friends, but he believed that the move would be a positive step for Warren and his mother. He stated that Warren was a remarkably healthy, resilient and socially adroit child, and he would adjust quickly to the move and do very well in Washington, D.C. He also testified that he could miss a day or two of school each month for expanded visitation without experiencing academic problems. He stated that Warren told him that although he would miss his dad at sports practices, he wanted to go to Washington.

¶ 11 Father called an expert who testified generally about "parent alienation syndrome" and "disaffecting parent process," which are syndromes alleged to develop in some children as a result of negative speech or action by one parent about the other. He stated that he had never interviewed Warren or his mother and had only limited contact with father. He acknowledged that children do not usually suffer long term psychological problems as a result of moving, and that an extended visitation schedule that provided more intensive time with a parent can be good for a child.

¶ 12 Father's testimony showed that he and Warren had a close relationship; he fully exercised all his visitation rights and he was very involved in Warren's life and his activities, particularly sports. He testified that he was concerned that Warren would not get to play sports in Virginia, and that he would not be able to participate in Warren's school activities and watch him play sports as he does now.

¶ 13 At the conclusion of the hearing, the guardian ad litem advised the court that she believed the move was not in Warren's best interests because father's visitation would be significantly reduced. She did not believe the advantages to Warren or his mother which might result from the were move were "as important as time with both parents."

¶ 14 The trial court ruled against mother's move, concurring with the guardian ad litem that it would be detrimental to the child to lose out on the existing relationship with his father. The judge acknowledged that mother was a fit parent who could care well for Warren in Washington, D.C., or anywhere else, but she thought it would be a "big detriment" to Warren if she were to "sustain the motion and allow him to move to Washington because his relationship with his father will be different."

II.

¶ 15 As a preliminary matter we address concerns expressed by the parties as to the finality of the judgment and mootness of the issues. We find the order of the trial court is final and appealable and the issues are not moot. Mother...