Plumlee v. Plumlee

Citation271 P.3d 807,2012 OK CIV APP 10
Decision Date30 December 2011
Docket NumberNo. 107922.Released for Publication by Order of the Court of Civil Appeals of Oklahoma,Division No. 2.,107922.Released for Publication by Order of the Court of Civil Appeals of Oklahoma
PartiesIn re the Marriage of Joan PLUMLEE, Petitioner/Appellee, v. Phillip PLUMLEE, Respondent/Appellant.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

OPINION TEXT STARTS HERE

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Donald L. Deason, Trial Judge.AFFIRMED.

Joan M. Blood (f/k/a Plumlee), Jefferson City, Missouri, Pro Se.

Jay F. McCown, Tamra A. Spradlin, Quick, McCown & Spradlin, Oklahoma City, Oklahoma, for Respondent/Appellant.

JOHN F. FISCHER, Vice–Chief Judge.

¶ 1 Phillip Plumlee (Father), appeals the district court's order granting Joan Plumlee's (Mother), motion to dismiss his objection to her notice of relocation of their child. Father's objection was filed out of time. Therefore, the district court did not err in granting Mother's motion and we affirm.

BACKGROUND

¶ 2 On August 8, 2008, the district court granted the parties a divorce and awarded Mother custody of their minor child. On August 20, 2008, Mother filed her first notice of relocation and mailed a copy to Father pursuant to 43 O.S.2011 § 112.3.1 The district court sustained Father's timely objection after a hearing conducted on October 8, 2008. On April 10, 2009, Mother mailed a second notice of relocation, properly addressed to Father, by certified mail. After a second attempt to deliver the letter on April 17, 2009, the United States Postal Service (USPS) returned the letter to Mother marked “Refused.” Mother filed a third notice on June 14, 2009, notifying Father that she was delaying the date of her move by approximately one month. After a second delivery attempt on June 15, 2009, the USPS returned this certified letter, also marked “Refused,” to Mother.

¶ 3 Mother relocated in July. On August 4, 2009, Father filed an objection to Mother's relocation. He also sought a permanent order preventing Mother's relocation or in the alternative, modification of custody to award him primary custody. Mother filed a motion to dismiss Father's objection, and following a hearing on August 20, 2009, the district court granted Mother's motion and dismissed Father's objection to Mother's relocation. Father appeals.2

STANDARD OF REVIEW

¶ 4 This appeal requires review of the district court's application of 43 O.S.2011 § 112.3. “A legal question involving statutory interpretation is subject to de novo review, i.e., a non-deferential, plenary and independent review of the trial court's legal ruling.” Heffron v. Dist. Ct. of Okla. County, 2003 OK 75, ¶ 15, 77 P.3d 1069, 1076 (citing Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, n. 5, 33 P.3d 302, 305 n. 5).

ANALYSIS

¶ 5 Father argues that the district court erred in permitting Mother to relocate. This argument takes two forms. First, Father argues that his objection was timely and, therefore, the district court was required by section 112.3 to hold an evidentiary hearing. Second, he contends that the district court's denial of Mother's first attempt to relocate is determinative of her second notice based on the doctrine of claim preclusion.

¶ 6 Two statutes govern the relocation of a minor child by a custodial parent. Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶ 2, 160 P.3d 951, 952. The first statute provides:

A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child.

10 O.S.2001 § 19 (renumbered as 43 O.S.2011 § 112.2A). The second, 43 O.S.2011 § 112.3, provides in pertinent part:

B. 1. Except as otherwise provided by this section, a person who has the right to establish the principal residence of the child shall notify every other person entitled to visitation with the child of a proposed relocation of the child's principal residence as required by this section.

....

C. 1. Except as provided by this section, notice of a proposed relocation of the principal residence of a child or notice of an intended change of the primary residence address of an adult must be given:

a. by mail to the last-known address of the person to be notified,

....

G. 1. The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provided by this section unless a parent entitled to notice files a proceeding seeking a temporary or permanent order to prevent the relocation within thirty (30) days after receipt of the notice.

....

2. A parent entitled by court order or written agreement to visitation with a child may file a proceeding objecting to a proposed relocation of the principal residence of a child and seek a temporary or permanent order to prevent the relocation.

....

4. A proceeding filed pursuant to this subsection must be filed within thirty (30) days of receipt of notice of a proposed relocation.

....

K. The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child.

¶ 7 The first statute gives the custodial parent a “presumptive right” to relocate. Kaiser v. Kaiser, 2001 OK 30, ¶ 18, 23 P.3d 278, 282. The second statute requires notice of intent to relocate and provides for a hearing procedure if the non-custodial parent objects to relocation. Other than in Harrison v. Morgan, 2008 OK CIV APP 68, ¶ 15, 191 P.3d 617, 621 (holding that section 112.3 did not repeal 10 O.S.2011 § 19), there has been no effort to construe the effect of or to reconcile the two statutes. See Mahmoodjanloo, 2007 OK 32, ¶ 12, 160 P.3d at 955 (declining to resolve the issue of potential conflict because it had not been addressed by the trial court). And, it is unnecessary to do so in this case, except to the extent that we find a parent's right to relocate a child provided in section 112.2A is limited by the notice and hearing requirements of section 112.3, if the child is to be moved more than seventy-five miles from the child's principal residence for a period of time exceeding sixty days. See Galarza v. Galarza, 2010 OK CIV APP 19, ¶ 13, 231 P.3d 694, 698. It is necessary, however, to decide whether Mother's certified mailing satisfies the notice provision of section 112.3.3

¶ 8 Section 112.3 does not specifically require certified mail, as used by Mother in this case, nor does it address how the requirement of notification may be satisfied beyond the specification that notice must be given “by mail to the last-known address of the person to be notified.” Section 112.3 (C)(1)(a). The most stringent form of notice required in this State is for service of process. Title 12 O.S. Supp.2009 § 2004(C)(2) authorizes service by mail and provides, in part:

a. At the election of the plaintiff, a summons and petition may be served by mail.... Service by mail shall be effective on the date of receipt or if refused, on the date of refusal of the summons and petition by the defendant.

b. Service by mail shall be accomplished by mailing a copy of the summons and petition by certified mail, return receipt requested and delivery restricted to the addressee....

¶ 9 Because of the fundamental family and due process issues involved in relocating a child, we find that a party required to satisfy the notification by mail provision of section 112.3 must meet the requirements of section 2004(C)(2) of the Oklahoma Pleading Code. See In re Adoption of D.T.H., 1980 OK 119, ¶ 19, 615 P.2d 287, 290 (holding that a parent's right “to the care, custody, companionship and management of his or her child is a fundamental right protected by the federal and state constitutions”)(overruled on other grounds); In re C.S., 1978 OK 94, ¶ 12, 580 P.2d 983, 985 (“The fundamental nature of parental rights requires that the full panoply of procedural safeguards must be applied to child deprivation hearings.”). Although this is not a termination proceeding, relocation may substantially affect Father's visitation with his child.

¶ 10 Father argues Mother's mailing was insufficient for two reasons. First, he contends that Mother was required by the parties' divorce decree to use email. Second, he argues that, even if mailing were permitted, he was not provided the notice prior to relocation required by section 112.3, because he claims he did not personally receive the mailing sent by Mother.

I. Father's Email Argument

¶ 11 We find Father's argument that Mother was required by the parties' divorce decree to communicate her notice of relocation by email unpersuasive and disingenuous. First, absent a finding of unconstitutionality, courts are required to apply and enforce clear and unambiguous legislative enactments like the mailing requirement of section 112.3. See In re City of Durant, 2002 OK 52, ¶ 13, 50 P.3d 218, 221.

¶ 12 Second, the provision in the divorce decree Father relies on is not, as Father argues, conclusive on the issue. That provision states that “the parties shall further use e-mail as the primary mode of communication unless the particular circumstances of the need for communication make use of e-mail unreasonable or impracticable. (Emphasis added). Here, the particular circumstances and the directives of section 112.3 required a form of communication other than email. Further, the divorce decree cannot be construed in a manner that would excuse compliance with mandatory statutory requirements. [T]he general rule is that nothing may be read into a statute which was not within the manifest intention of the legislature as gathered from the language of the act.” Stemmons, Inc. v. Universal C.I.T. Credit Corp., 1956 OK 221 ¶ 19, 301 P.2d 212, 216.

¶ 13 Finally, this Court notes that the divorce decree specifically addresses this issue, a fact not called to our attention by Father or his counsel, even though that...

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  • In re Hart v. Bertsch
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • April 25, 2013
    ...statutes: 10 O.S.2001 § 19 and 43 O.S. Supp.2002 § 112.3.” Mahmoodjanloo, 2007 OK 32, ¶ 2, 160 P.3d at 952.Accord, Plumlee v. Plumlee, 2012 OK CIV APP 10, 271 P.3d 807. Consequently, we find the Supreme Court's pre-Relocation Statute decisions interpreting a custodial parent's right to relo......

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