SW v. Duncan

• Decision Date: 08 May 2001
• Docket Number: No. 94,358.,94,358.
• Citation: 2001 OK 39,24 P.3d 846
• Parties: S.W., D.W. and D.W. Petitioners, v. The Honorable Jacqueline DUNCAN, Judge of the District Court of Custer County, Respondent, and S.R.G. and T.G., Real Parties In Interest.
• Court: Oklahoma Supreme Court

24 P.3d 846

2001 OK 39

S.W., D.W. and D.W. Petitioners, v. The Honorable Jacqueline DUNCAN, Judge of the District Court of Custer County, Respondent, and S.R.G. and T.G., Real Parties In Interest.

No. 94,358.

Supreme Court of Oklahoma.

May 8, 2001.

M. Eileen Echols, C. Thomas Kite, David W. Echols and Associates, Oklahoma City, OK, for Petitioners.

Douglas Loudenback, Loudenback Associates, Oklahoma City, OK, for Real Parties in Interest.

SUMMERS, J.

¶ 1 Here we have a child custody dispute between a divorced father and the family of the divorced, but now deceased mother. The primary questions are whether the state which granted the divorce, Oklahoma, retains child custody jurisdiction after the death of the custodial parent, and whether the Oklahoma modification proceeding properly continued to exercise jurisdiction although a simultaneous Kansas modification proceeding had been commenced before the Oklahoma one. We conclude that the Oklahoma court making the initial custody determination in a divorce proceeding retains jurisdiction to modify custody after the death of the custodial parent, and that the Oklahoma modification proceeding was proper.

¶ 2 The facts are that the mother (V.W.) and father (S.W.) resided in Custer County, Oklahoma. On October 21, 1999 the decree of divorce gave custody of the little girl, J.P.W., to Mother. Father was awarded "restricted visitation," specifically "[s]aid restricted visitation shall be a maximum of three afternoon visitations per week, each being a maximum of 3 hours in length. . . ." On January 11, 2000, Mother died as a result of a car accident.

¶ 3 On January 23, 2000, the child was in Weatherford, Custer County, Oklahoma, and being cared for by G.G., the maternal grandmother, and S.G. and T.G., the maternal uncle and aunt. The maternal grandmother resides in Weatherford. On that day, the maternal aunt took the child to her father's home in Weatherford for visitation pursuant to the divorce decree. When she returned at 6:00 p.m. she found the home locked and Father's note taped to the door. The note stated in its entirety: "I'm exercising my right to custody and moving J . . . to Norton to live with [paternal uncle and aunt D.W. and D.W.] Will call when I get to Norton. [S. W.]" At approximately 6:45 p.m. she was informed by telephone that the child was in Norton, Kansas.

¶ 4 Father's brother and sister-in-law, D.W. and D. W., reside in Norton, Kansas, and they had arranged for a private plane to fly Father and child to Norton on January 23rd during the scheduled visitation. The next day, January 24th, in the District Court of Norton, Kansas, Father petitioned to have the paternal uncle and aunt named "guardians and conservators" of the minor child. On that day the Kansas court determined that: 1. the child was 5 years old, 2. she was present in Norton Kansas, 3. the child was in need of the appointment of a guardian, and 4. the petitioner was the surviving natural parent of the child and, as a surviving parent he had named the paternal uncle and aunt to be guardians. The Kansas court named the paternal aunt and uncle as guardians. Father returned to his residence in Weatherford some time later.

¶ 5 Two days later, on January 26th, the maternal uncle and aunt, S.G. and T. G., filed in the District Court of Custer County a petition for custody and guardianship of the child. Attached to the petition was the Last Will and Testament of Mother wherein the maternal uncle and aunt were designated as both guardians of the person of her child and trustees of the estate left to the child. Probate was commenced in a separate proceeding. The maternal uncle and aunt had not received notice of the proceeding in Kansas.

¶ 6 Upon presentation of the application for an emergency ex parte order the Oklahoma District Court heard testimony from the maternal aunt. She testified as to finding the Father's note, where the Father resided, and why, in her view, Father's visitations with the child were restricted by the divorce decree. She testified that the maternal grandmother had been a primary care giver for the child when Mother was working. She stated that J.P.W. was in Kansas with the paternal relatives, that the Kansas relatives had seen J.P.W. approximately once per year, and that she and her husband had more contact with the child and the deceased mother. She also testified that the child was five years old and attended kindergarten in Weatherford,

¶ 7 The Oklahoma court made findings that: 1. The child had been removed from the State by a non-custodial party; 2. Harm could result to the child unless custody was awarded to the maternal grandmother (G.G.); 3. The best interests of the child required giving the maternal grandmother temporary custody; 4. Oklahoma was the home state of the child; and 5. The District Court had jurisdiction "over this situation". The court ordered that the child should not be removed from Oklahoma until the child's best interests could be determined. The court appointed independent counsel for the child.

¶ 8 After the hearing was held and order issued on January 26th, the District Court judge learned of the Kansas proceeding. The Oklahoma judge arranged a telephone conference with the Kansas judge on January 31st. The transcript of that conference reveals that the Kansas judge stated that she did not know certain facts of the child's family as related by the Oklahoma judge. The Kansas judge declined at that time to give an opinion as to which court should proceed, or what would occur in the Kansas proceeding.

¶ 9 The Oklahoma court then held its scheduled hearing on the application for temporary custody/guardianship on February 3rd. Father and Kansas relatives were notified of the proceeding but declined to personally appear or bring the child to the court. They made a special appearance through counsel, and moved to dismiss the Oklahoma proceeding because of the pending Kansas proceeding. The Oklahoma court overruled the motion to dismiss, determined that Father and Kansas relatives were "served", found that Oklahoma was still the home state of the child, ordered the physical custody of the child to be placed with the maternal grandmother "until further order of the Court", appointed maternal grandmother, maternal uncle, and maternal aunt as co-guardians, and ordered the Kansas relatives to immediately return the child to the grandmother. The court further found that Father was "not a fit and proper person to have custody or control of the minor child, . . . ." The court further ordered future visitation with Father to be supervised. Father and the paternal uncle and aunt filed a petition in error herein attempting to appeal from that order.

¶ 10 The first issue we must examine is whether the order of the District Court is immediately appealable to this Court. The District Court's jurisdiction was invoked to modify the custody/guardianship of the child. The judge construed the application as requesting a modification of the divorce decree. The District Court proceeded on an application for temporary custody. The notice of the hearing stated that it was for the purpose of hearing the application requesting "temporary Custody/Guardianship" of the child. The District Court did not make a final adjudication on the application for custody/guardianship. The order awarding custody was temporary in that it serves to name custodians of the child pending the final adjudication of the application to modify custody.

¶ 11 Generally, temporary orders are interlocutory orders and not immediately appealable, unless made so by statute. Renbarger v. Renbarger, 1994 OK 140, 889 P.2d 1250, 1251; Kantor v. Kantor, 1994 OK 132, 886 P.2d 480; Elliott v. Elliott, 1954 OK 356, 279 P.2d 328. No statute creating such appellate jurisdiction is cited by the parties. Interlocutory orders may be reviewed on appeal from the judgment or final order in the case, LCR, Inc. v. Linwood Properties, 1996 OK 73, n. 19, 918 P.2d 1388, 1393, and temporary custody orders are no exception to this rule.¹ We conclude that no appellate jurisdiction has been invoked by the petition in error.²

¶ 12 This Court has, in limited circumstances, recast a petition in error to an application to assume original jurisdiction and request for extraordinary relief. F.D.I.C. v. Tidwell, 1991 OK 119, 820 P.2d 1338, 1342; In the Matter of B.C., 1988 OK 4, 749 P.2d 542, 544. It is well known that temporary custody orders occur with great frequency, that they may be modified during a divorce proceeding, and that the final adjudication of custody may, or may not, be awarded to the party exercising temporary custody.³ The primary function of this Court is appellate review, Keating v. Johnson, 1996 OK 61, 918 P.2d 51, 56, and this Court's original jurisdiction cannot serve as a vehicle to review the multitude of temporary custody orders issued in this State. Our assumption of jurisdiction today is not based upon the fact that a temporary custody order was made.

¶ 13 When deciding to recast a proceeding we have considered whether the issue before us is one of first impression. Ellison v. Ellison, 1996 OK 64, 919 P.2d 1, 2. The first impression issue presented is whether our prior opinions have been modified by the Uniform Child Custody Jurisdiction and Enforcement Act (U.C.C.J.E.A.), 43 O.S.Supp. 1998 §§ 551-101 to 551-402, inclusive. When deciding to recast we have also considered whether the content of the petition, i.e., the issue presented, is one that has been historically recognized by this Court as proper for extraordinary relief. In the Matter of B.C., supra. One party to this dispute challenges the jurisdiction and authority of an Oklahoma court to hear a child custody dispute because of a pending child custody proceeding in a different state involving the same child. This Court has assumed original jurisdiction in circumstances where child custody proceedings were pending in two states....