Swiney v. Villanueva
| Decision Date | 30 July 2021 |
| Docket Number | Case No. 119,050 |
| Citation | 499 P.3d 1244 |
| Parties | In re the Marriage of: Norah Marie SWINEY, Petitioner/Appellee, v. Alfredo VILLANUEVA, Respondent/Appellant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Keith A. Jones, Anastasia Mahoney, KAJones Law, PLLC, Tulsa, Oklahoma, for Petitioner/Appellee.
Brad K. Cunningham, CONNER & WINTERS, Tulsa, Oklahoma, for Respondent/Appellant.
OPINION BY THOMAS E. PRINCE, JUDGE:
¶1 Respondent/Appellant, Alfredo Villanueva ("father") and Petitioner/Appellee, Norah Marie Swiney ("mother") are the parents of one minor child, R.S.V., born July 17, 2013. Father has had supervised visitation of the parties' child since the divorce trial, which took place during 2016. Father sought a modification of child support and visitation in the trial court and, after a two day trial, the trial court denied the majority of father's requested relief. The trial court modified child support in accordance with a stipulation entered by the parties, found father guilty of contempt for his willful failure to pay child support, and denied the request to allow unsupervised visitation. The finding of guilt for contempt is affirmed. The order modifying child support is affirmed. The order denying father's motion to modify visitation is reversed and the matter is remanded for a hearing on modification of visitation.
BACKGROUND
¶2 The parties were married and living in the State of Texas until they separated. While pregnant, mother moved to the Tulsa, Oklahoma area and ultimately sought a dissolution of marriage in Oklahoma. After a three day trial, the trial court awarded mother full custody of the parties' child and made extensive findings regarding father's behavior and living conditions. The trial court held:
The Court denies Father's request for unsupervised visitation in Dallas at this time. Through his own actions, he has not established the trust needed for the Court to believe that he would make appropriate decisions and that he would change his pattern of abusive behavior. He needs to prove this before he has unsupervised visitation and before the child is sent to Dallas for visitation. He needs to have serious psychological therapy in which he resolves his issues. Until that happens, he is not a good candidate for unsupervised visitation and the child shall not be sent to Dallas.
R. at 8. The parties' Decree of Dissolution of Marriage was filed on September 28, 2016. Father filed his first Motion to Modify Visitation and Child Support the following month, on October 13, 2016.1 Before the matter proceeded to trial on the motion to modify filed by father and the contempt action filed by mother, father was sanctioned by the trial court for failure to cooperate in discovery. On May 29, 2019, the trial court granted mother's request for sanctions and dismissed father's motion to modify as to child support. On August 16, 2019, the trial court granted a judgment for sanctions in favor of mother against father in the amount of $10,000.00. In addition, the trial court awarded mother attorney fees in the amount of $11,650.00 for fees incurred during the discovery process, which resulted in sanctions. The matter proceeded to trial on February 26, 2020, and February 28, 2020. At trial the parties' Parenting Coordinator testified and when asked about the findings made by the trial court after the first divorce trial, the following exchange occurred:
The Parenting Coordinator testified that as long as father attends events with his family north of Tulsa, he did not feel like supervised visitation was necessary. The father testified that he had been attending therapy since 2012 with David Terpstra.
¶3 During trial the parties stipulated to the income numbers for the child support computation and that the child support obligation would be modified effective May 1, 2019. R. at 389, Tr. of 2/26/20 at page 128; R. at 390, Tr. of 2/28/20 at pages 41-43. The parties submitted closing arguments during May of 2020, and the trial court issued its orders on August 18, 2020.
¶4 Regarding the issue of visitation, the trial court stated that:
Respondent's Motion to Modify, as it relates to visitation is denied. A permanent, material and substantial change of circumstances (the Gibbons standard) was not proven by a preponderance of the evidence. The conditions detailed by Judge Bruce, in the Decision of Separate Maintenance, which Respondent must meet before his visitation is normalized have not been met.
R. at 226-227. Notwithstanding that finding by the trial court, the court did modify the supervised visitation order in two respects. First, the trial court no longer required visitation to be supervised by the paternal grandmother. Second, supervised visitation could take place in Tulsa or Kansas City. The trial court also found father guilty of contempt for failure to pay child support and entered a judgment in the amount of $31,229.25 against him. The trial court modified child support but did not require mother to share in visitation expenses.2 This appeal follows.
STANDARD OF REVIEW
¶5 Child custody and visitation matters are matters of equitable cognizance. Acox v. Acox , 2000 OK CIV APP 136, ¶2, 18 P.3d 363, 363-364. The Court reviews custody decisions for an abuse of discretion. Wilson v. Franek , 2015 OK CIV APP 67, ¶11, 355 P.3d 863, 865. In this matter, however, the issue raised by father is whether the trial court appropriately applied the Gibbons standard for modification of custody to his request for modification of visitation. The authority granted to the trial court to modify child custody or visitation orders is set forth in 43 O.S. § 112. Questions of statutory interpretation and implementation are reviewed de novo . Bank of Oklahoma, N.A. v. Miller , 2017 OK CIV APP 48, ¶4, 403 P.3d 389, 391. "De novo review involves a plenary, independent, and non-deferential examination of the district court's rulings of law." Independent School Dist. No. 2 Tulsa County v. Oklahoma Tax Commissioner , 2018 OK CIV APP 49, ¶4, 419 P.3d 1281, 1283-1284.
¶6 In a contempt proceeding questions of fact will not be reviewed. Kerr v. Clary , 2001 OK 90, ¶18, 37 P.3d 841, 845. Child support matters are addressed to the legal discretion of the trial court and will not be reversed absent a showing of abuse of discretion. In re the Marriage of Morgan , 2019 OK CIV APP 5, ¶28, 438 P.3d 837, 839-840. An abuse of discretion is "discretion employed on untenable grounds or for untenable reasons, or a discretionary act which is manifestly unreasonable." Patel v. OMH Medical Center, Inc. , 1999 OK 33, ¶20, 987 P.2d 1185, 1194.
ANALYSIS
Standard for modification of visitation
¶7 The trial court denied father's motion to modify visitation because, according to the trial court, father did not sustain his burden of proof under the Gibbons standard. In Gibbons v. Gibbons , 1968 OK 77, 442 P.2d 482, the Court, after reviewing numerous decisions, articulated the burden of proof required when a parent seeks to modify a child custody order. The Court stated that:
the burden of proof is upon the parent asking that custody be changed from the other parent to make it appear: (a) that, since the making of the order sought to be modified, there has been a permanent, substantial and material change of conditions which directly affect the best interests of the minor child, and (b) that, as a result of such 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 485. In Gibbons , the mother relied on a change in her circumstances to justify modification of custody from the father to her. Id. at 487. However, the Court disagreed that a change in her circumstances alone would satisfy the test. The Court recognized that "this boy would be at least as well off, insofar as his temporal welfare and his mental and moral welfare are concerned, in the custody of his father as he would be in the custody of his mother, even in her changed situation." Id. at 487. It is clear that under Gibbons , all things are not equal and the burden of proof to overcome in order to justify modification of custody from one parent to the other is a high one. In Boatsman v. Boatsman , 1984 OK 74, 697 P.2d 516, the Court stated, with regard to modification of child custody, that: Id. at 519.
¶8 The question here, raised by father, is whether the Gibbons standard must 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 lived in Enid, Oklahoma at the time of their divorce. Id. at 925. After the divorce, the father moved to Dallas, Texas and worked for Southwest Airlines. He sought a modification of visitation due to his change in location and work schedule. Id. at 925. The Court recognized that the Gibbons test is well established when the issue involved is a change of custody from one parent to the other. Id. at 926. However, the Court stated that:
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