Stephen v. Stephen
| Decision Date | 22 April 1997 |
| Docket Number | No. 86560,86560 |
| Citation | 937 P.2d 92,1997 OK 53 |
| Parties | Lynn STEPHEN, now Martin, Appellant, v. Mark STEPHEN, Appellee. |
| Court | Oklahoma Supreme Court |
William D. (Bill) Graves, Oklahoma City, for Appellant.
Frank W. Davis, Guthrie, Michael P. Farris and David E. Gordon, Home School Legal Defense Association, Paeonian Springs, Virginia, for Amici Curiae, Home School Legal Defense Association, Oklahoma Central Home Educators Consociation, Christian Home Educators Fellowship of Oklahoma.
Marcie James, Oklahoma City, for Appellee.
Lynn Stephen, now Martin, appellant, was granted an uncontested divorce from Mark Stephen, appellee, on March 29, 1989. Martin was granted custody of their two boys, born in August 1982, and June 1987. During the 1994-1995 school year Martin quit her job to educate the boys at home. In response, Stephen filed a motion to modify custody alleging that Martin was not qualified to serve as their teacher, and that a home-school education was not in their best interests. After a five-day hearing, the court concluded that the children were probably better off with Martin, but that she was not qualified to educate her children at home. The court ordered a change in custody from Martin to Stephen unless the children were placed in public school. Martin appealed, and her motion to retain was granted.
The dispositive issue is whether the evidence supports the trial court's determination that home schooling had a direct and adverse effect on the children. We find the evidence does not establish that Lynn Martin's home schooling of her two boys adversely affected their best interests. We hold that when the trial court found this home schooling was not in the best interest of the children, and ordered a change of custody unless the children were returned to public school, such change was against the clear weight of the evidence, and was an abuse of discretion. Accordingly, we reverse the order.
Before reaching the evidentiary issue, we address two preliminary issues: 1) whether the change of custody is an appealable order; and 2) whether the appellant has accepted the benefits of the order. The modification order appears to be conditional, rather than a final order. However, the conditional aspect of the judgment was removed after October 10, 1995, the time limitation for Martin to enroll the two boys in public school. 1 When an order embodies a conditional judgment and the conditional nature of the judgment has been removed by the passing of the time limits set by the trial court, the order is final and appealable. 2 Generally, a court of equity may render such judgment as will meet all the exigencies of the litigation and equitably settle all conflicting rights. In granting the necessary and proper relief the court may attach to such grant any reasonable conditions that to it seem proper. 3 In this case, whether the boys would continue to live in the familiar and suitable home provided by the mother was conditioned upon the mother's behavior, and the condition was intended to coerce the mother's behavior. 4 Early in the custody dispute, the mother heeded the trial court's warnings and re-enrolled her older son in public school. Having already placed the older child in public school, when the trial court pronounced its custody order, Martin advised the trial judge that she would comply by enrolling her younger son in public school. Coerced compliance with the conditions in the custody order is not tantamount to acceptance of the benefit of a judgment that waives the right of appeal. 5
Title 43 O.S.Supp.1994, § 112(A)(3) authorizes a trial court to modify a child custody order "whenever circumstances render such change proper...." 6 This language has remained unchanged since Gibbons v. Gibbons. 7 Gibbons held that parents requesting modification must establish (1) a permanent, substantial and material change in circumstances; (2) the change in circumstances must adversely affect the best interests of the child; and, (3) the temporal, moral and mental welfare of the child would be better off if custody is changed. 8 In a hearing upon a motion to modify, the burden is upon the applicant to show a substantial change in conditions since the entry of the last order or decree which bears directly upon the welfare and best interest of the child. 9 On appeal, a trial court order modifying child custody will be affirmed if the evidence supports a finding that the child is directly and adversely affected by the substantial change of circumstances. 10 Before the trial court, Mark Stephens took the position that Lynn Martin was not qualified to home school the boys because she had no formal education beyond high school, and therefore, the home schooling adversely affected the boys. The testimony and exhibits, however, do not support a finding that Lynn Martin's home schooling directly and adversely affected the best interests of her children.
The five days of hearings were spread from July 11, 1995, to October 6, 1995. The evidence shows that before Martin decided to start educating the boys at home, Stephen did not follow any pattern of regular visitation. Although he attempted to explain this, the proof was that until Stephen filed his motion to modify custody, visitation with his older son was sporadic, and visitation with his younger son was almost nonexistent. Stephen admitted on cross-examination that Martin was "a great mother," and that he filed his motion because he "didn't feel she was giving them a quality education in teaching them herself at home."
The trial court appointed its own expert for psychoeducational-psychological evaluation. Her tests revealed that the older boy was "bright to superior" in intelligence, and the younger boy "high average to bright." At the beginning of the 1994-1995 school year, both boys were behind a grade level for their ages. The older boy would have started the sixth grade and the younger boy would have started the first grade in the public school system. After one year of home schooling, the Iowa Tests of Basic Skills given in June of 1995, revealed that the older boy had earned a composite grade equivalent of 8.5, meaning that his test performance was approximately the same as that made by a typical student in the eighth grade at the end of the fifth month. As a comparison, at the end of his fifth grade year in public school, the Iowa Test of Basic Skills stated that his overall achievement was about average for his grade. The younger boy's composite score grade equivalent was 2.4, that is, second grade, fourth month. The report of the court's expert indicated that the older boy was capable of achieving at the tenth grade level. The court's expert reported that the younger boy is achieving between second and third grade in all basic academic areas, which findings are consistent with the Iowa Test scores. The expert observed that the younger boy had made good academic progress even though his achievement is not at expectancy for his age and ability. The court's expert concluded that both boys could handle whatever decision the court made.
Dr. Raymond Moore, a witness for Martin, and whose doctorate was in teacher education and developmental psychology, was offered as an expert witness in home education, developmental psychology and teacher education. The court accepted him as an expert without an objection from Stephen's counsel. Dr. Moore described Martin as a very attentive, devoted and pensive mother. He concluded that she was doing an excellent job of teaching her boys. Although Dr. Moore preferred his home school program to the one being used by Martin because his program involved "study, work, and service," he observed that both boys were doing above the national norm based on the 1995 Iowa Test scores. Those tests were taken after the 1994-1995 year of home schooling. Dr. Moore observed that only in one or two areas were they below the national norm. He testified that on several of the skill levels, both boys had scored 100 percent correct. Although there were areas in which she could improve, Dr. Moore testified that the test results indicated that great credit must be given to Martin as a home schoolteacher. He observed that with proper coaching she could do very, very well. When asked if the mother would be disqualified as a home schoolteacher because she overlooked some misspelled words on spelling tests, Dr. Moore replied that the main concern of the mother was building character and ability to deal with life, so, putting first things first, the boys were really very well educated. They had manners, were industrious, and helped around the house. He concluded that she did an outstanding job that would not be done in any classroom.
Another of Martin's witnesses was Glenn Kastner, Director of Special Services for Putnam City Public Schools. He had not met either of the boys, nor the parties until the day of the hearing. He evaluated the older boy's Iowa Tests. Kastner testified that the older boy had shown a dramatic growth in his reading ability and that he was ready for the seventh grade. At the time of the hearing, as noted above, the older boy was back in public school for the 1995-1996 school year, in the seventh grade. Kastner had checked with the boy's counselor and found that he had an A in science, a B in social studies, a B in English, and was enrolled in Honors Mathematics where he was maintaining a B. For the younger boy, Kastner did not have the benefit of being able to compare Iowa Tests taken before and after one year of home schooling, like Kastner did with the older boy. But Kastner testified that the younger boy's scores were all in the average to above-average range and that placing him in the second grade at Putnam City would not be a problem.
Lynn Martin testified that the course material she orders to teach her boys...
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