Redmond v. Cauthen

Decision Date10 April 2009
Docket NumberNo. 105,923.,105,923.
Citation2009 OK CIV APP 46,211 P.3d 233
PartiesIn re the Marriage of Kathleen REDMOND, Petitioner/Appellee, v. Brett CAUTHEN, Respondent/Appellant.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

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

AFFIRMED

Nicholle Jones Edwards, Robert K. Campbell, Mullins, Hirsch & Jones, P.C., Oklahoma City, OK, for Petitioner/Appellee.

Laura McConnell-Corbyn, Hartzog Conger Cason & Neville, Oklahoma City, OK, for Respondent/Appellant.

CAROL M. HANSEN, Presiding Judge.

¶ 1 In October 2000, Petitioner, Kathleen Redmond [Mother], and Respondent, Brett Cauthen [Father], were married. Mother filed for divorce in August 2006. At the time of trial their daughter was 3 years old and their son was two years old. The trial court awarded Mother temporary sole custody of Children, and awarded Father modified standard visitation. During the temporary order hearing, the trial court ordered both parties to submit to an anger assessment. Upon completion of an anger assessment, Father filed a motion to modify the temporary order. The trial court granted Father equal time with Children pursuant to 43 O.S.2001 § 110.1, while Mother remained the temporary sole custodian of Children.

¶ 2 At trial, Father requested joint custody and equal time with Children, and Mother sought sole custody. In the Decree of Dissolution of Marriage, among other things, the trial court awarded sole custody of Children to Mother and awarded Father modified standard visitation, every other weekend, and also every Wednesday evening from after school or work until 7:30 p.m. Additionally, the trial court found Father's student loans are his separate debt and that he "shall receive no offset against the marital assets." Father appeals.

¶ 3 In a divorce action the trial court is vested with discretion in awarding custody and visitation. Daniel v. Daniel, 2001 OK 117, 42 P.3d 863. The best interest of the child must be a paramount consideration of the trial court when determining custody and visitation. On issues regarding the best interest of the child, the standard of review is whether the decision of the trial court is against the clear weight of the evidence or an abuse of discretion. Wood v. Redwine, 2001 OK CIV APP 115, 33 P.3d 53.

¶ 4 Father contends the trial court abused its discretion in failing, pursuant to 43 O.S.2001 § 110.1 to provide him equal time with the parties' minor children. Section 110.1 provides:

It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. To effectuate this policy, if requested by a parent, the court shall provide substantially equal access to the minor children to both parents at a temporary order hearing, unless the court finds that such shared parenting would be detrimental to such child. The burden of proof that such shared parenting would be detrimental to such child shall be upon the parent requesting sole custody and the reason for such determination shall be documented in the court record.

Father claims this action is one of first impression regarding the application of public policy articulated in § 110.1 because there are no cases in Oklahoma which discuss the impact of that public policy on decree ordered visitation schedules. He urges the public policy set out in the statute is not limited to the temporary order proceeding. It is by its terms applicable both after the parties have separated and after their marriage has been dissolved.1

¶ 5 We disagree. The fundamental rule of statutory construction is to ascertain and give effect to legislative intent, and that intent is first sought in the language of the statute. Fanning v. Brown, 2004 OK 7, 85 P.3d 841. Courts will give the words of the statute their plain and ordinary meaning, unless a contrary intention plainly appears. When the words of a statute are plain and unambiguous, no occasion exists to employ the rules of construction. City of Durant v. Cicio, 2002 OK 52, 50 P.3d 218. The courts must give the statute its plain and definite meaning. Sysco Food Serv. of Oklahoma LLC v. Cunningham, 2007 OK CIV APP 52, 162 P.3d 973.

¶ 6 Although the plain language of § 110.1 provides it is the policy of the State of Oklahoma to assure minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children, the "substantially equal access" language unambiguously applies only to the temporary order hearing phase of a case. It is clear the Legislature intended to provide both parents "substantially equal access" during only the temporary order hearing, if requested by a party. Thus, the trial court was not constrained to award Father "equal access" to Children in its final custody-visitation...

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2 cases
  • Broyles v. Okla. Emp't Sec. Comm'n
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • May 6, 2014
    ...“Courts will give the words of the statute their plain and ordinary meaning, unless a contrary intention plainly appears.” Redmond v. Cauthen, 2009 OK CIV APP 46, ¶ 5, 211 P.3d 233. “When the words of a statute are plain and unambiguous, no occasion exists to employ the rules of constructio......
  • Robinson v. Robinson
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • December 2, 2020
    ...their children after the parents have separated or dissolved their marriage.Although Division III of this Court held, in Redmond v. Cauthen , 2009 OK CIV APP 46, ¶ 6, 211 P.3d 233, that later language in this statute encouraging "substantially equal access" applies only to the temporary ord......

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