Robinson v. Robinson

Decision Date02 December 2020
Docket Number Companion to Case No. 119,021,Case No. 117,759
Citation480 P.3d 924
Parties In re the Marriage of: Amanda ROBINSON, Petitioner/Appellee, v. Steven ROBINSON, Respondent/Appellant.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Craig L. Box, Julia C. Rieman, GUNGOLL, JACKSON, BOX & DEVOLL, P.C., Enid, Oklahoma, for Petitioner/Appellee

Russell N. Singleton, Enid, Oklahoma, for Respondent/Appellant

OPINION BY P. THOMAS THORNBRUGH, PRESIDING JUDGE:

¶1 Steven Robinson (Father) appeals a decision of the district court denying his application to modify his visitation schedule with his minor children. On review, we find that the court incorrectly applied the Gibbons test in these circumstances, and reverse. Because the trial court has since crafted a new visitation order that is under appeal in the companion case, we find no further action is necessary at this time.

BACKGROUND

¶2 Mother and Father were divorced in 2017. As part of the divorce, Mother was granted physical custody, and the couple reached an agreed visitation schedule. At that time, Mother lived in Enid, Oklahoma, and Father was a reservist stationed on active duty at Vance Air Force Base in Enid. After Father's duty at Vance ended, he moved to Dallas, where he works as a pilot for Southwest Airlines. He sought a modification of the current visitation schedule on grounds that his location and work timetable had changed. Father did not attempt to require the children to travel to Dallas for visitation but proposed instead that he fly to Enid in a private aircraft he had purchased to facilitate visitation at a house Father had retained for that purpose. Because of these circumstances, Father requested 10 days of consecutive visitation each month as opposed to the "every other weekend and two evenings a week" schedule provided by the parties' divorce decree. Mother opposed Father's request. The trial court granted Mother's demurrer at the close of Father's evidence; ruled that Father must satisfy the test set forth in Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482, to justify a change in the visitation schedule and found that, although Father had shown a "material change in circumstances," he had not proven that it would be in the best interests of the children to change the visitation schedule.

¶3 Father appealed this decision, and the matter was assigned Case No. 117,759. During the pendency of the appeal, the trial court conducted another hearing and changed the visitation schedule. Mother has appealed the latter decision (and others), in an appeal assigned Case No. 119,021 that has been made a companion to this case.

STANDARD OF REVIEW

¶4 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. In this case, the primary issue is one of the applicability of a common-law test in particular circumstances. This is a question of law that is reviewed de novo.

ANALYSIS

I. APPLICABILITY OF THE GIBBONS TEST TO A REQUESTED CHANGE IN VISITATION SCHEDULE

¶5 In Gibbons , the Supreme Court held that modification of a custody order requires an applicant parent to demonstrate "a permanent, substantial and material change of conditions which directly affect the best interests of the minor child," and that because of the change in conditions, "the minor child would be substantially better off, with respect to its temporal and its mental and moral welfare, if the requested change in custody be ordered." Id. at ¶ 12.

¶6 The question of the use of the Gibbons test to determine if a court should grant modification of a visitation schedule is raised here. Before investigating this question further, we first note that the decree in question was a consent decree. While the decree does not appear to provide any procedures directly addressing modification of a visitation schedule, it does set out procedures to be followed if either party "relocates," as occurred in the instant action. This procedure, agreed to by the parties and approved by the court as a consent decree, makes no apparent use of the Gibbons test in resolving a relocation or visitation schedule question. We find no indication whatsoever that, having voluntarily requested that this agreement be rendered as a binding order of the court in the form of a decree, the parties made any attempt to follow these provisions. However, we will assume that, since both parties joined in the litigation here without demanding that this clause be followed, they waived any procedure or right under the decree and instead consented to submit the matter to immediate judicial interpretation.1

¶7 The application of Gibbons to the question of a change of custody is well established. As noted above, "[u]nder Gibbons , a custody order may not be modified unless the applicant parent demonstrates a permanent, substantial and material change of circumstances which directly and adversely affects a child in such a material way that as a result the child would be substantially better off if custody were changed to the other parent." Abbott v. Abbott , 2001 OK 31, ¶ 8, 25 P.3d 291 (citation omitted). The singular question of law before us is whether these criteria must also be satisfied before a court may change a visitation schedule .

A. Visitation Criteria Pursuant to 43 O.S. § 112(A)

¶8 Title 43 O.S.2011 § 112(A) provides in pertinent part that a court:

(2) Unless not in the best interests of the children, may provide for the visitation of the noncustodial parent with any of the children of the noncustodial parent; and
(3) May modify or change any order whenever circumstances render the change proper either before or after final judgment in the action; .... (Emphasis added).

¶9 The statute does not explicitly require the use of the Gibbons criteria in a modification of visitation. Indeed, the statute deals with visitation separately from the issue of custody, indicating that the Legislature did not consider the procedures and criteria to be identical. We agree with Father that no statute or case law appears to immediately apply the Gibbons test to questions of modifying a visitation schedule.

¶10 Mother argues, however, that the courts have modified these § 112(A) criteria and that Gibbons requires that a visitation schedule should not be changed absent a permanent, substantial, and material change of circumstances which adversely affects a child in such a way that the child would be substantially better off if the visitation schedule were changed. We find no evident adoption by the Supreme Court of the Gibbons criteria in questions of modification of a parental visitation schedule. Mother cites Ingram v. Knippers , 2003 OK 58, 72 P.3d 17, and Scott v. Scott , 2001 OK 9, 19 P.3d 273, as doing so. Her reliance is misplaced. Both cases deal with the issue of grandparental visitation, a separate statutory section governed by substantially different principles.

B. Non-parental Visitation Criteria Pursuant to 43 O.S. § 109.4

¶11 A public policy of encouraging parental visitation is stated in 43 O.S.2011 § 112(A)(2), as providing for visitation "[u]nless not in the best interests of the children,"2 i.e. , that a party opposing visitation has the burden of showing visitation is against the best interests of the child. By comparison, 43 O.S. Supp. 2016 § 109.4(A)(1) does not encourage or allow court-ordered grandparental visitation unless:

b. there is a showing of parental unfitness, or the grandparent has rebutted, by clear and convincing evidence, the presumption that the fit parent is acting in the best interests of the child by showing that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child, and
c. the intact nuclear family has been disrupted ...

¶12 The two statutes embody quite different and opposing principles regarding parental and non-parental visitation, and we think it unlikely that the Supreme Court would have used the occasion of an analysis of § 109.4 to effect a substantial change in the statutory criteria of § 112(A). The requirement of § 109.4 that an applicant show that the child "would suffer harm or potential harm without the granting of (grandparental) visitation rights" fits reasonably well with the Gibbons requirement that the moving party show that the child would be "substantially better off" if a change were made. The same Gibbons criteria are contrary, however, to the visitation policy embodied in § 112(A).

¶13 In Ingram, a parent sought to terminate a grandparental visitation order . The argument that Gibbons applies to changes in a parent-parent visitation schedule arises from the following passages of Ingram:

While a fit parent contesting grandparental visitation is entitled to a presumption that the parent will act in the best interest of the child, Neal , 2000 OK 90, 14 P.3d 547, a court will not modify a valid visitation order without the moving party first showing a substantial change of circumstances. Scott , 2001 OK 9 at ¶ 5, 19 P.3d at 275.3 Having agreed to the initial grant of visitation with Grandfather, Mother cannot in this subsequent proceeding litigate the issue of harm without showing a change in circumstances and Child's best interest will be served by terminating the visitation.

Ingram , 2003 OK 58, at ¶ 19, 72 P.3d 17.

¶14 Unlike the situation presented here, the question in Ingram was not a simple change in a parental visitation schedule; rather, the mother in that case had filed a motion to terminate grandparental visitation. Nonetheless, here, Mother argues that ¶ 21 of ...

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1 cases
  • Swiney v. Villanueva
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 30 July 2021
    ...be satisfied in order to justify modification of visitation. That question was recently addressed by the Court in Robinson v. Robinson , 2020 OK CIV APP 68, 480 P.3d 924. Robinson involved an attempted modification of visitation by the father. The parties were divorced in 2017 and both live......

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