King v. King, 99248

• Court: Supreme Court of Oklahoma
• Writing for the Court: KAUGER, J.
• Citation: 107 P.3d 570,2005 OK 4
• Parties: BARBARA KING, Defendant/Appellant, v. ANTHONY KING, Plaintiff/Appellee.
• Docket Number: No. 99248,99248
• Decision Date: 01 February 2005

2005 OK 4
107 P.3d 570

BARBARA KING, Defendant/Appellant,
v.
ANTHONY KING, Plaintiff/Appellee

No. 99248

Supreme Court of Oklahoma.

February 1, 2005.

Charles L. Hill, Norman, Oklahoma, for Plaintiff/Appellee.

Spencer Ford Shroeder, Chickasha, Oklahoma, for Defendant/Appellant.

KAUGER, J.:

¶1 We granted certiorari to consider a single first impression issue: whether a prevailing parent, demonstrating good cause for withholding court-ordered visitation, is entitled to appeal-related attorney fees pursuant to 43 O.S. Supp. 2003 §112(D)(2).¹ We determine that the statute supports an award of appeal-related attorney fees. Furthermore, the defendant/appellant, Barbara King (mother) is entitled to recover such fees because: 1) she demonstrated good cause for withholding visitation — the possibility of the child's sexual abuse by others while in the custody of the plaintiff/appellee, Anthony King (father) — and the threat of termination of parental rights should she allow the visitation to continue; 2) 43 O.S. Supp. 2003 §112(D)(2)² provides in clear, explicit, mandatory and unmistakable terms that when an action is brought under the statute which is contrary to the best interests of the child, the prevailing party shall³ be entitled to recover court costs, attorney fees and any other costs and expenses incurred in the action. The father brought the action, the mother presented evidence of good cause for denying the visitation and presented sufficient evidence to rebut the argument that a change of custody was in the child's best interest. She is a prevailing party entitled to recover under the statute, and appeal-related attorney fees are recoverable if statutory authority exists for their award in the trial court.⁴ Section 112(D)(2) provides specific statutory authority for such an award. The mother is entitled to recover attorney fees on appeal. Finally, even if statutory authority for the award of attorney fees did not exist, the equities support an award to the mother who was forced either to discontinue visitation pending an investigation of the sexual abuse allegations or face the possible loss of her child to Kansas child welfare authorities. Therefore, we leave the Court of Civil Appeals opinion undisturbed.

FACTS

¶2 Neither parent is accused of abusing their child. Rather, the abuse allegations are directed at the child's uncle⁵ who acted as a part-time minister in the congregation where the family attended services before the divorce.

¶3 The parties were married in 1998, and the only child of the marriage was born the same year. The mother moved to Kansas in December of 2000. The father filed for divorce the next March and the matter was tried in May and July of 2002. It appears that the divorce was granted on July 31, 2002. However, the decree was not filed until October 8, 2002. During the proceedings and before the filing of the decree, the mother accused the uncle of child abuse. Although we do not have the record associated with the divorce action, it is apparent that the trial court gave some credence to the mother's concerns. The decree specifically provides that the child is not to be around the uncle even in a worship setting.⁶ Custody was placed with the mother and the father was afforded standard visitation.

¶4 Because of the mother's failure to provide the child for court-ordered visitation and her unfounded abuse contentions, the father filed a motion to modify on September 9, 2002, asserting that it would be in the best interests of his son to change the custodial arrangement. Here, the specific allegations arose following a visit with the father in November of 2002.

¶5 After picking up the child, the mother stopped at her niece's home. Although the father testified that the child was never in his uncle's presence,⁷ the mother stated that during this rest stop the child was visiting with his cousin when the cousin came into the living room and told his mother that the child had pulled down his pants and was playing with his private parts. When the mother asked her son why he was misbehaving, the child allegedly told her that his uncle "stretches his pee pee".⁸ These allegations were corroborated by the niece⁹ who testified that she believed the child was talking about a recent incident.¹⁰

¶6 The mother filed a child abuse report with the Kansas police which listed the abuse as occurring on November 23rd. On December 16, 2002, the mother took the child to counseling with Glenda Rodgers (Rodgers/counselor) who had treated the child after the initial abuse allegations. In this session, Rodgers engaged the child in play therapy where he revealed that the uncle had pulled on his pee pee.¹¹ Rodgers not only concluded that the child had been with the uncle, but that the visit occurred while the child was in the father's custody, perhaps while at worship service, and that it was recent.¹²

¶7 Rodgers was concerned enough about the child having been abused that she wrote the mother a letter the day of the counseling session. In that letter, she told the mother that she was reporting the abuse to SRS — evidently the Kansas agency equivalent to Oklahoma's Department of Human Services which subsequently determined the claim was substantiated.¹³ She also told the mother that if visitations continued, she would file a child in need of care petition to protect the child from the uncle. The counselor also stated that if the petition were filed, the child could be removed from the mother's home and placed in SRS custody. The mother was also told that her parental rights could be terminated if the investigation found that she failed to protect her child.¹⁴

¶8 The Chickasha police received a documentation report from the Kansas police and a referral from the Oklahoma Department of Human Services on December 18, 2002.¹⁵ Officer Doug Mabry (officer) interviewed a member of the father's church, the uncle, the father and the child. He also spoke with a member of the Kansas Police Department who received the initial report and advised the mother to file a formal complaint.

¶9 The church member indicated that the child had not attended services in over a year. The uncle stated that he had not seen the child since October of 2001, but that he was not surprised by the mother's allegations. He told the officer that he believed the mother had never liked him because of his race and because of a conflict which arose when the mother broke a lease and failed to pay rent money in a complex he managed.¹⁶ The father reported that his son had not been around the uncle.

¶10 Initially, the officer made several attempts to contact the mother but he was unable to do so. On January 16, 2003, he was notified by a Kansas police officer that the mother had complained to the chief of police that, when he phoned her, the officer had been rude. Up to this point, the officer said he had never spoken with the mother but that he did reach her by phone following the notification from Kansas. In this conversation, he reported that the mother was belligerent and that she yelled and cussed at him until he just hung up on her.¹⁷

¶11 In an interview held on February 3, 2003, when the officer asked the child if he knew the uncle, he responded, "that's the man that touches my pee pee."¹⁸ The child also told the officer and others present that when his uncle was touching his pee pee, he touched his own posterior, and that all this happened at the church.¹⁹

¶12 There is no question that the evidence presented at the hearing on March 28, 2003, was highly contested. The father insisted that the incident in November never occurred because his son did not see the uncle.²⁰ The uncle denied the abuse and stated that he had not seen his nephew since the divorce was granted. The mother testified the child detailed the incident at her niece's home and the mother's and the niece's stories were consistent.²¹ The child's step-sister also reported that the child had told her that the uncle had put his hands in his pants and touched his pee pee at church.²² The counselor was so convinced that the incident occurred and that it was recent that she filed a complaint with the Kansas SRS. The Kansas SRS found the report to be "substantiated". The counselor wrote to the mother advising her that if she didn't protect the child, her neglect would be reported, the child would be removed from her home, and that her custodial rights would be terminated.²³ Despite the child's indications in the interview, the officer testified that he believed neither that the child had been around the uncle nor that any inappropriate activity had occurred.²⁴ It appears that this conclusion was based, in part, on the fact that the child couldn't identify the uncle from a photo line-up.²⁵

¶13 It is also apparent that, from the time of the divorce through the hearings involving the abuse allegations, the trial judge's patience had been stretched. He called the cause one of his "thorn-in-the-side cases"²⁶ and told the attorney for the mother that he was "bored" with hearsay evidence offered by the mother sustaining his own, sua sponte, objection to it.²⁷ At the end of the hearing on March 28, 2003, the trial judge changed custody from the mother to the father, granting the mother standard visitation and ordering her to pay child support. Although he stated that he believed the child had been coached and that the mother had unduly influenced the police and social workers, out of an abundance of caution and to assuage the mother's concerns, the trial judge ordered — just as had he had done in the divorce decree — that the child was not to be around the uncle at any time.

¶14 On May 14, 2003, the mother appealed. A year later, the Court of Civil Appeals reversed stating that the mother had good cause for the temporary failure to allow paternal visitation during the course of the investigations in Kansas and Oklahoma and that there was no evidentiary support for the...