Wood v. Redwine

Decision Date24 August 2001
Docket NumberNo. 94,366.,94,366.
Citation2001 OK CIV APP 115,33 P.3d 53
PartiesEvan WOOD, Plaintiff/Appellee, v. Marilyn REDWINE, Defendant/Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Charles O. Schem, Oklahoma City, OK, for Appellant.

Virginia Henson, Shawnee, OK, for Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1. JOPLIN, Judge:

¶ 1 Marilyn Darlene Redwine (Mother) seeks review of the trial court's order granting custody of the parties' minor child (Child) to Evan Dean Wood (Father). In this appeal, Mother challenges the trial court's assumption of jurisdiction as improper, and its determination of custody as affected by an abuse of discretion. Finding no reversible error in the trial court's assumption of jurisdiction, but finding the trial court abused its discretion in granting custody to Father, we hold the order of the trial court should be reversed.

¶ 2 From the record, it appears that while Mother and Father cohabited in Colorado, Child was born in 1992. In 1996, when Child was approximately 3½ years old, Father moved to Oklahoma; Mother remained in Colorado, living with or near her mother.

¶ 3 For about the next 3 years, Father had little contact with Child and paid—what can only be charitably termed—less than bare minimum child support. Mother consequently sought child support assistance from the State of Colorado. Colorado provided some assistance and apparently sought reimbursement from Father.

¶ 4 In June 1998, Child visited Father in Oklahoma for the first time. Sometime in 1999, Mother moved to Utah, and sought child support assistance from that state. That same year, Father again sought and obtained from Mother agreed-to summer visitation with Child.

¶ 5 In August 1999, Father refused to return Child to Mother at the end of his summer visitation. Instead, Father commenced the instant action, seeking to establish paternity, and to obtain custody of Child and child support, on the allegation that Child was a resident of this state. Mother entered a special appearance and objected to jurisdiction, arguing Oklahoma was not Child's "home state."

¶ 6 The trial court overruled Mother's jurisdictional challenge, but allowed Child to return with Mother to Utah pending further proceedings with provisions for Father's visitation with Child on request and notice to Mother. Father apparently attempted to visit Child in October 1999, but—apparently on advice of her then-counsel-Mother refused to allow visitation for Father's failure to give the notice prescribed by the trial court.

¶ 7 After a hearing on the merits in early December 1999, the trial court awarded custody of Child to Father, ordered Mother to pay child support, and directed Mother to relinquish physical custody of Child to Father on Christmas day. Mother appeals.

¶ 8 As our Supreme Court has duly noted, "The question of whether jurisdiction exists and the question of who should have custody are two entirely different matters." Holt v. District Court for the Twentieth Judicial District, Ardmore, Carter County, 1981 OK 39, ¶ 23, 626 P.2d 1336, 1343. In this regard, the statutory jurisdictional scheme of the Uniform Child Custody Jurisdiction and Enforcement Act, 43 O.S. Supp. 1998 §§ 551-101 et seq., provides in pertinent part:

A. Except as otherwise provided in [§ 551_204], a court of this state has jurisdiction to make an initial child custody determination only if:
1. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state, but a parent or person acting as a parent continues to live in this state;
2. A court of another state does not have jurisdiction under paragraph 1 of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum on the ground that this state is the more appropriate forum under [§ 551_207 or § 551_208, i.e., because of inconvenient forum or "unjustifiable conduct" by the party seeking to invoke jurisdiction], and
a. the child and the child's parents, or the child and at least one parent ... have a significant connection with this state other than mere physical presence, and
b. substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
3. All courts having jurisdiction under paragraph 1 or 2 of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under [§ 551_207 or § 551_208, i.e., because of inconvenient forum or "unjustifiable conduct" by the party seeking to invoke jurisdiction]; or
4. No court of any other state would have jurisdiction under the criteria specified in paragraph 1, 2, or 3 of this subsection.

43 O.S. 551-201. (Emphasis added.)

¶ 9 Applying these provisions to the present case, it is clear from the outset that Oklahoma is not the home state of Child for purposes of jurisdiction under (A)(1), as "home state" is defined by § 551-102. In the present case, Mother and Child lived in Colorado for substantially all of Child's life preceding Mother's move to Utah in 1999. Mother lived in Utah over five months prior to commencement of the Oklahoma proceedings, Child attended Utah schools, and Mother sought child support assistance from Utah. Child visited Father in Oklahoma only during the previous two summers for a limited period of time which did not—even in combination—amount to six months in duration. The Oklahoma courts consequently have no (A)(1) "home state" jurisdiction.

¶ 10 Subsection (A)(2) permits the exercise of jurisdiction only if (1) a court of another state does not have "home state" jurisdiction or has declined to exercise jurisdiction; and (2) the child has significant connections with Oklahoma; and (3) there is available in Oklahoma substantial evidence concerning the child's welfare. Having reviewed the record submitted, we find no evidence whatsoever to establish either Child's significant connection with Oklahoma beyond Child's limited presence during two visitation periods, or the availability of substantial evidence concerning Child's past and future care, education, and safety in Oklahoma, Child having lived with Mother in Colorado or Utah since birth. See, Joliff v. Joliff, 1992 OK 38, ¶ 9, 829 P.2d 34, 37-381; Matter of Guardianship of Walling, 1986 OK 50, ¶ 14, 727 P.2d 586, 591.2

¶ 11 In the present case, Mother moved from Colorado to Utah in 1999. Child was returned to Mother in Utah and attended school in that state before the trial court entered its order assuming jurisdiction and awarding Father custody. Considering Mother and Child's significant connections with Utah and Colorado, and lack of connections to Oklahoma, we consequently find no Oklahoma jurisdiction under (A)(2).

¶ 12 Under (A)(3), the Oklahoma courts may exercise jurisdiction only if another court having jurisdiction under provisions substantially similar to (A)(1) or (2) has declined to exercise jurisdiction under inconvenient forum or unreasonable conduct provisions similar to § 551-207 and § 551-208.3 In the present case, no other state with jurisdiction has declined to exercise jurisdiction, and the failure of the parties to seek the jurisdiction of another state's courts is not dispositive. See, Joliff, 1992 OK 38, ¶ 11, 829 P.2d 34, 38 ("The fact ... that no proceeding had been initiated in [the child's `home state'] does not in itself accord Oklahoma the right to assume jurisdiction.") Therefore, we find no Oklahoma jurisdiction conferred under (A)(3).

¶ 13 Finally, the Oklahoma courts may exercise jurisdiction under (A)(4) only if no other state has jurisdiction under (A)(1), (2), or (3). Uniform Child Custody Jurisdiction Act (1968), § 3, comment4; Uniform Child Custody Jurisdiction and Enforcement Act (1997), § 201, comment.5 On the specific record tendered for our review, inasmuch as it appears neither Oklahoma, Colorado nor Utah6 could properly exercise jurisdiction under any of the first three jurisdictional requisites of the UCCJEA, the trial court in the present case must have assumed jurisdiction under the (A)(4) default provision.7

¶ 14 The jurisdictional provisions of the UCCJA—and by implication, the successor provisions of the UCCJEA—seek to assure that litigation regarding custody of a child take place in the state with which the child and his family have the closest connection and where significant evidence concerning care and protection is readily available in order to provide a continuing stable environment for children. See, Joliff, 1992 OK 38, ¶ 9, 829 P.2d at 37; Matter of Guardianship of Walling, 1986 OK 50, ¶ 14, 727 P.2d at 591. Thus, while we cannot say the trial court erred in assuming jurisdiction, we remain mindful of the spirit and intent of the UCCJA and the UCCJEA in reviewing the trial court's grant of custody to Father.

¶ 15 An award of custody of a minor child may be reversed on appeal if either contrary to the clear weight of the evidence concerning the child's best interest, or affected by an abuse of discretion. Manhart v. Manhart, 1986 OK 12, 725 P.2d 1234 (weight of the evidence); Davis v. Davis, 1960 OK 196, 355 P.2d 572 (abuse of discretion). In an initial custody determination, the trial court must take into consideration, among other factors, which parent is most likely to facilitate contact between the child and the non-custodial parent, but the paramount consideration in determining custody is the best interest of the child. 43 O.S. 112; Frankovich v. Frankovich, 1969 OK 151, 459 P.2d 583.

¶ 16 In the present case, the uncontroverted evidence showed that Child was raised by Mother in Colorado since Child's birth and for the approximately...

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