Sicking v. Sicking, 91490.
| Citation | 2000 OK CIV APP 32,996 P.2d 471 |
| Decision Date | 27 August 1999 |
| Docket Number | No. 91490.,91490. |
| Parties | Erica SICKING, Plaintiff/Appellee/Counter-Appellant, v. James D. SICKING, Jr., Defendant/Appellee/Counter-Appellee, and James D. Sicking and Gloria J. Sicking, Intervenors/Appellants/Counter-Appellees. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Jack R. Givens and Blake R. Givens, Jones, Givens, Gotcher & Bogan, P.C., Tulsa, Oklahoma, and Sam P. Daniel and Ron W. Little, Doener, Saunders, Daniel & Anderson, L.L.P., For Plaintiff/Appellee/Tulsa, Oklahoma, Counter-Appellant.
Michael E. Staggs, Howard, Widdows, Bufogle & Vaughn, P.C., Tulsa, Oklahoma, For Defendant/Appellee/ Counter-Appellee.
Sharon L. Corbitt, Corbitt, Rineer & Johnson, P.C., Tulsa, Oklahoma, and Brian S. Gaskill, Sneed Lang, P.C., Tulsa, Oklahoma, For intervenors/Appellants/Counter-Appellees.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
¶ 1 Erica Sicking, now Erica Dorwart, (Mother) and James D. Sicking, Jr., (Father) married on April 30, 1996. Mother filed for divorce approximately three months later, and an agreed divorce was entered in November of 1996. At the time of the divorce, Mother was pregnant. The divorce decree reserved the issue of paternity and other child-related issues for future resolution. Animosity between Mother and Father continued after their daughter, C, was born the following February, and visitation became a point of contention. Father's parents, James D. Sicking and Gloria J. Sicking (Grandparents, or, as appropriate, Grandmother or Grandfather) also filed a petition to intervene in the divorce and asked for visitation with their granddaughter.
¶ 2 Following hearings held on five days over a three month period, the trial court entered a series of orders placing primary custody of C with Mother, ordering Father to pay child support, and giving Father visitation for two hours on Tuesday and Thursday of each week and an additional two hours on alternating Saturdays. The trial court also ordered that Grandparents would be allowed to visit C once every two weeks in conjunction with Father's visitation or without Father if Father was unable to exercise his visitation time. However, the trial court also ordered that C could not be a passenger in a vehicle being driven by Grandmother, and that Grandmother could visit with C only in the presence of Father or Grandfather.
¶ 3 Mother, Father, and Grandparents filed separate applications for attorney fees and costs. After hearing, the trial court ordered Father to pay a portion of Mother's attorney fees, ordered Mother to pay a portion of Father's attorney fees, and denied Grandparents' request to have Mother pay all or part of their attorney fees, concluding such an award was not authorized.
¶ 4 Grandparents appealed the order denying their request for attorney fees. Mother filed a counter-appeal seeking reversal of the order allowing Grandparents to have visitation with C and the order requiring her to pay a portion of Father's attorney fees.
¶ 5 As noted in Walden v. Hughes, 1990 OK 105, ¶ 2-3, 799 P.2d 619, "Oklahoma follows the general rule that attorney fees are generally not recoverable unless so provided by statute or enforceable contract . . . This court, creating an exception to the general rule, has held that a court has the equitable power to award attorney fees in cases where `an opponent has acted in bad faith, vexatiously, wantonly or for oppressive reason.'" (Citations omitted.) This equitable exception was first recognized in City National Bank & Trust Company v. Owens, 1977 OK 86, 565 P.2d 4.1
¶ 6 Grandparents first argue that the trial court was authorized to award attorney fees by 43 O.S.Supp.1997 § 110(C). Mother contends § 110 does not authorize an attorney fee award to an intervenor in a divorce case. Our resolution of this dispute must be found in the language of the section. The governing principle in statutory construction is legislative intent. City of Chandler v. State ex rel. Department of Human Services, 1992 OK 137, 839 P.2d 1352. Words or phrases are to be understood in the context of all of the statute. Matter of Estate of Little Bear, 1995 OK 134, 909 P.2d 42. Statutory construction is not necessary if the legislative intent is clearly expressed, Matter of Estate of Flowers, 1993 OK 19, 848 P.2d 1146. If legislative intent is clearly expressed, the ordinary meaning of the statutory language will control, Oklahoma Association for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, 901 P.2d 800, cert. denied, 516 U.S. 1029, 116 S.Ct. 674, 133 L.Ed.2d 523.
¶ 7 Such clarity exists here. Section 110(C) provides, in pertinent part, that the trial court "may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances." (Emphasis added.) Grandparents' interpretation of § 110(C) would require us to substitute the word "any" for "either" and the phrase "of any other party" for "of the other." It is apparent § 110(C) contemplates but two parties, the divorcing husband and wife, and does not provide for an award of attorney fees and costs under the circumstances at hand.
¶ 8 Citing only Blackwell Livestock Auction, Inc. v. Community Bank of Shidler, Oklahoma, 1993 OK CIV APP 161, 864 P.2d 1297, Grandparents argue that "[a] court has the authority to award attorney fees in an action in equity." Blackwell was an action to enforce an equitable lien, and attorney fees are allowed by statute to "the party for whom judgment is rendered" in actions to enforce "any lien." 42 O.S.1991 § 176. Blackwell does not stand for the proposition urged by Grandparents, i.e., that a court sitting in equity may always award attorney fees to a party. Such a holding would be in direct conflict with Walden, an equitable action, where the Court concluded the prevailing party could not be awarded attorney fees. Under the circumstances of this case, Grandparents were not entitled to attorney fees on any ground urged by them in this appeal.
Grandparental Visitation
¶ 9 Relying on In the Matter of Herbst, 1998 OK 100, 971 P.2d 395, Mother contends 10 0.S.Supp.1996 § 5 may not be constitutionally applied to afford Grandparents "independent" visitation because they did not show a harm, or threat of harm, to C if Grandparents do not have such "independent" visitation.2 In addressing this argument it is critical to recognize the important differences between the facts of this case and Herbst.
¶ 10 This case does not involve an intact nuclear family where both parents object to visitation by the grandparent. It does not even involve a divorce where both parents object to visitation by the grandparent, and it does not involve a divorce where a grandparent is given visitation in addition to that given to the non-custodial parent, thus invading time that would otherwise be available for the child to be with the custodial parent. Herbst has already decided that in the first circumstance, § 5 cannot be constitutionally applied absent harm or the threat of harm. We need not, and do not, decide in this case whether § 5 may be constitutionally applied in the latter two circumstances.
¶ 11 The narrow issue presented here is whether § 5 is unconstitutionally applied when the parents of a non-custodial parent involved in a divorce case are given "independent" rights to visit with their grandchild, with the support and the approval of the non-custodial parent, during the time which would otherwise be used by the non-custodial parent for visitation with the child and the non-custodial parent is unable to exercise that visitation.3 We conclude that it is not.
¶ 12 According to Mother, Herbst, 1998 OK 100, ¶ 18, 971 P.2d at 398, prohibits court-imposed grandparental visitation in this case because "[a]bsent a showing of harm, (or threat thereof) it is not for the state to choose which associations a family must maintain and which the family is permitted to abandon." Mother's reliance dismisses language immediately preceding that quotation that requires a "showing of harm, or threat of harm, to bring the issue before the court or some instance of death or divorce which brings the child's domestic situation within the provence of the court." (Emphasis added.) Mother says this is appropriate because the emphasized language "implies only the legal context in which the questions of harm or threat to the child's well being arises." According to Mother, even where the parents of the child are divorced, some threatened harm is necessary before the court may require a parent to allow a grandparent to visit with the child. We disagree.
¶ 13 The language chosen by the Court makes it clear that its decision does not impact the application of § 5 in cases involving divorced or divorcing parents. Moreover, one of the principal decisions relied upon in Herbst explicitly recognized "the termination of the relationship between the child's parents" as being an instance where "state interference with parental rights to custody and control of children is permissible" because "the health or welfare of a child is threatened." Brooks v. Parkerson, 265 Ga. 189, 193, 454 S.E.2d 769, 772 (1995).
¶ 14 Father supported Grandparents' request for visitation, and it is "his" time which Grandparents will use to foster a relationship with their grandchild. Mother has not presented us with any authority which would give her the unilateral veto she seeks over the relationships which C will be allowed to enjoy. The right protected in Herbst is a right enjoyed by both parents. If Father chooses to foster a relationship between his parents and C by allowing them to visit with C, either with or without Father, during times when Father would ordinarily visit with C exclusively and...
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