Morgan v. Morgan

• Decision Date: 13 December 2018
• Docket Number: Case No. 116,503
• Citation: 438 P.3d 837
• Parties: In re the Marriage of: Heather Marie MORGAN, now Gruenberg, Petitioner/Appellee, v. Mark Ray MORGAN, Respondent/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

438 P.3d 837

In re the Marriage of: Heather Marie MORGAN, now Gruenberg, Petitioner/Appellee,

v.Mark Ray MORGAN, Respondent/Appellant.

Case No. 116,503

Court of Civil Appeals of Oklahoma, Division No. 4.

FILED DECEMBER 13, 2018

Mandate Issued: January 30, 2019

Nancy K. Anderson, Oklahoma City, Oklahoma, for Petitioner/Appellee

Patrick H. McCord, N. SCOTT JOHNSON & ASSOCIATES, P.L.L.C., Tulsa, Oklahoma, for Respondent/Appellant

OPINION BY KEITH RAPP, JUDGE:

¶1 Trial court respondent, Mark Ray Morgan, (Father) appeals the trial court's Order for Parental Support of a Disabled Adult Child ordering Father to pay support for his disabled adult son. Father also appeals the trial court's order awarding attorney's fees to Heather Marie Morgan, now Gruenberg (Mother).

BACKGROUND

¶2 Father and Mother were married on June 11, 1994, and had one child, SCM, born August 22, 1998. SCM was born with autism

spectrum disorder with speech delay and intellectual disability. The parties divorced on April 12, 2004, and the trial court awarded custody of SCM to Mother, with reasonable visitation to Father. The trial court ordered Father to pay $630.09 per month, which included $557.30 in child support calculated pursuant to the Child Support Guidelines and $72.79 as Father's contribution toward the cost of speech therapy for SCM. The trial court also ordered that Mother would be responsible for 42% and Father 58% of SCM's uncovered medical expenses.

¶3 Father lives out-of-state and has limited interaction with his son, SCM.

¶4 SCM graduated, with accommodations, from Inola High School in Inola, Oklahoma, in May 2016. He turned 18 later that year, on August 22, 2016.

¶5 Prior to SCM's 18th birthday, on May 16, 2016, Mother filed a Motion for Parental Support of a Disabled Child. Mother alleged SCM requires "substantial care and personal supervision and will never be capable of self-support" and that as a result of the care and expenses due to his preexisting disability, the trial court should order Father to pay financial support for SCM pursuant to Title 43 O.S.2011 § 112.1A. Mother requested child support calculated according to the Oklahoma Child Support Guidelines through August 2016, and, beginning in September 2016, support for SCM calculated based on the factors set forth in Title 43 O.S.2001 § 112.1A(E).

¶6 Father filed a Motion to Determine Overpayment on January 30, 2017. Father argued that, under the Decree of Divorce, his child support included an amount of $72.79 per month for speech therapy for SCM. Father alleged SCM ceased receiving speech therapy although Father continued to pay for the therapy. Father also alleged he paid for medical expenses that Mother did not incur. Father asked the trial court to determine the amount of overpayment and to enter a judgment against Mother and in favor of Father in the amount of the alleged overpayment. Father also requested an award of attorney fees and costs.

¶7 In response to Father's request for overpayment, Mother denied Father was entitled to an award for overpayment of child support or medical expenses. Mother alleged the parties mutually agreed that SCM would attend a private reading tutor instead of speech therapy and that Father never complained about contributing to payment for the reading tutor. Mother also alleged SCM quit seeing a reading tutor while in high school, which she also discussed with Father. Father did not request overpayment nor did he ask to recalculate the child support. Mother stated she paid medical expenses for SCM and did not ask Father to contribute payment for those expenses. Mother alleged there was an "understanding between the parties that the [child] support amount would stay the same." Mother also argued that, even after she filed her Motion for Parental Support for a Disabled Child, Father did not complain about the alleged overpayment or request to be reimbursed. Mother asked the trial court to deny Father's request for overpayment and an award of attorney's fees.

¶8 After several continuances, the trial court set this matter for trial on May 15, 2017.

¶9 On April 28, 2017, Father filed a Motion to Dismiss, arguing the trial court should dismiss Mother's Motion for Parental Support for a Disabled Child as there was no cognizable legal theory on which she could prevail. Father argued SCM was "capable of the minimum level of financial self-support." Father also alleged the trial court must consider all the resources available to support SCM, including government financial assistance.

¶10 Father also filed a Motion to Recuse on April 28, 2017, asking the trial court to order Mother's counsel to disqualify himself from representation of Mother because he represented Father's current wife in an unrelated matter approximately ten years previously.

¶11 The trial court entered a Minute Order on May 4, 2017, denying Father's Motion to Dismiss and Motion to Recuse. The trial court stated the trial remained set for May 15, 2017.

¶12 Father subsequently issued a subpoena to SCM at his current place of employment, Rogers State University. Mother filed a Motion to Quash Subpoena, arguing SCM was not subject to service of process or subpoena because he was the subject of a guardianship proceeding.

¶13 The trial court conducted a two-day trial beginning on May 15, 2017, and concluding on July 31, 2017. At trial, Mother presented several physicians and developmental experts to testify concerning SCM's cognitive limitations. Dr. Pamela A. Jarrett, SCM's pediatrician, testified SCM was diagnosed with Autistic Spectrum Disorder

with Aspergers Characteristics and ADHD when he was eight years old, in May 2006. She stated that SCM has limited cognitive abilities and that the diagnosis is permanent and not expected to change. She also testified that SCM has an IQ of a third or fourth grader. She stated SCM needs a limited legal guardian to help with certain decisions and a job coach to assist with employment. Concerning employment, Dr. Jarrett testified SCM would require close supervision and he would require a limited job scope. She also stated he would not be able to solely provide for his daily living cost and care. In addition, she testified that SCM suffers from anxiety and should not be alone at home for more than one to two hours a day. She also stated that he should not drive.

¶14 Stefani L. Northcutt, a psychometrist that specializes in special education testing, such as IQ and achievement testing, testified SCM tested at below to well below average.

¶15 Dr. Cynthia Jean Fuller, a developmental pediatrician and one of SCM's previous pediatricians, also testified concerning SCM's cognitive disabilities and ability to be employed. Dr. Fuller testified that SCM needs financial assistance because the type of job he is able to perform will not pay a livable wage. She stated SCM currently cleans tables at the cafeteria at Rogers State University and needs assistance to keep him on task. She opined that his overall function is that of a seven or eight year old. She also opined he was unable to function independently for activities of everyday life and currently functions at the level of a fourth grader.

¶16 Mother also presented the testimony of Pamela Meyer, SCM's supervisor at Rogers State University. Ms. Meyer testified SCM's job responsibilities include cleaning the tables and wiping down and refilling salt/pepper shakers. SCM needs constant supervision and needs a job coach to keep him on task. She said she had to move SCM to six hours a day because he was unable to handle working eight hours a day. Ms. Meyer testified SCM is paid $8.75 per hour, but is not paid during breaks, such as spring break, fall break, or summer break.

¶17 Mother also testified at the trial. Mother testified SCM made $4,000 in income in 2016 and introduced supporting documentation. Mother testified SCM might make approximately $10,000 in 2017. She stated SCM's income is used to pay for his I-pad, Disney channel, and other entertainment expenses, but does not pay for the essential overhead costs. She also stated she does not seek unemployment for SCM when he is laid off during the summer because SCM is unable to look for employment, which is a requirement to obtain unemployment. Mother also testified that she has not applied for government financial assistance because she was told it would probably be denied. She also testified she believes SCM is her and Father's responsibility, not the government's responsibility. Mother stated SCM is unable to live independently.

¶18 In addition, Mother testified she covers SCM on her insurance so she has not looked into Sooner Care. She stated SCM turned eighteen on August 22, 2016, and Father's last support payment was on August 15, 2016. Concerning the speech therapist costs that ceased, Mother testified she and Father agreed that SCM would meet with a reading tutor after he quit seeing the speech therapist and that Father's $72.79 payment would be applied to the reading tutor. She said that, after SCM quit seeing the reading tutor, the parents verbally decided child support would be increased if they returned to court so they left the child support as originally ordered.

¶19 After the close of Mother's case, the trial court heard argument on Mother's Motion to Quash Subpoena. SCM was represented by an attorney during this argument. The trial court ruled that he would conduct an in-camera interview of SCM and then rule on the Motion to Quash Subpoena after talking with SCM. After the in-camera interview, the trial court sustained Mother's Motion to Quash Subpoena. The trial court stated:

My interview indicates that [SCM] would not be able to be sworn, would not be able to understand what we are doing here and accurately answer questions. [SCM] was extremely nervous shaking, holding onto stuffed animals that he brought for support, was very scattered in his thoughts. For those reasons the subpoena is hereby quashed and we will proceed with testimony.¹

¶20 In support...