P. THOMAS THORNBRUGH, JUDGE:
¶1 Shyla Bilyeu (Mother) appeals a divorce decree awarding primary physical
custody to Joseph Bilyeu (Father) with joint custody. On review, we find that
the district court did not abuse its discretion in decreeing joint custody. We
affirm.
BACKGROUND
¶2 The parties were married in 2006. Father filed for divorce in June 2011.
They have two minor children, aged nine and five at the time of the decree.
Father requested joint custody "unless it was untenable," and Mother requested
sole custody. The district court held trial for approximately five days on the
issues, and made the following findings/orders as part of the decree:
13. Joint Custody - In the above styled cause of action the
Petitioner [Father] has pled for joint custody. The court finds that both
parents are fit custodians for the minor children; the parties are able to
cooperate with each other the majority of the time concerning the children.
The minor children are well cared for when in the custody of either parent
and it is patently evident that each parent deeply cares for these children.
The parties do not live far apart from each other. The physical environments
of the two homes of the parties are not extremely different. This Court
believes the parties have a current and functional joint custody plan and
the visitation schedule is adopted. The Court further states the belief that
conflict between the parties has arisen over lack of specificity with the
Plan and therefore adopts the Cleveland County Standard Visitation Plan
regarding holidays, school breaks, and summer visitation. The Court hereby
vests the parties with joint custody of the minor children.
14. Primary Custodian - The Petitioner is hereby deemed to be the
primary custodian of the minor children. The primary custodian has the final
decision making authority in matters regarding the children such as what
school the children attend, medical providers and extracurricular [sic]. The
Petitioner shall only exercise his final decision making authority after
reasonable discussions with Respondent and due consideration of her input
and goals for the minor children as to the issue being considered. The minor
children have more stability in their lives; far greater familial, friends,
extracurricular and school contacts with Dibble area with the Petitioner
than that of the Respondent's home. There is a greater support group in
their current location from both the paternal and maternal sides of the
failed marriage.
Mother now appeals this custody decision, arguing that awarding joint custody
was an abuse of discretion, and requesting that she be awarded sole custody.
STANDARD OF REVIEW
¶3 Custody contests are of equitable cognizance, and although an appellate
court may examine and weigh the evidence, the findings and decree of the trial
court cannot be disturbed unless found to be against the clear weight of the
evidence or an abuse of discretion. Manhart v. Manhart, 1986 OK 12, ¶ 14, 725 P.2d 1234 (weight of the
evidence); Davis v. Davis, 1960 OK 196, ¶ 0, 355 P.2d 572 (Syllabus 1) (abuse of
discretion). This formulation, although commonly cited, becomes problematical if
it is interpreted as stating two different decisional standards.
¶4 An abuse of discretion occurs when a decision is based on an
erroneous conclusion of law or where there is no rational basis in evidence for
the ruling. Spencer v. Okla. Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890. We find no generally
accepted definition of the "clear weight of the evidence." It has further become
a familiar form of decision for the appellate courts to find that a domestic
decision was "neither against the clear weight of the evidence nor
an abuse of discretion" implying that the two standards are in some way
different, and have separate elements that must be met.1
¶5 However, in Williamson v. Williamson, 2005 OK 6, ¶ 5, 107 P.3d 589, the Supreme Court
noted in a custody case that "unless we determine that the trial court's
decision is clearly against the weight of the evidence so as to constitute an
abuse of discretion, it will not be disturbed" (emphasis added). This
principle was previously stated in Miles v. Young, 1991 OK CIV APP 101, ¶ 29, 818 P.2d 1258 (citing Gorham v.
Gorham, 1984 OK 90, 692 P.2d 1375): "In an action of
equitable cognizance, such as this, we will weigh the evidence, but will not
disturb the trial court's judgment in the absence of abuse of discretion." Hence
we conclude that the "clear weight of the evidence" inquiry is part of the abuse
of discretion standard, and the generally accepted definition of an abuse of
discretion applies in custody cases. In custody cases, we will ordinarily give
deference to the trial court, who observes the demeanor of the witnesses. See
Fast v. Fast, 1989 OK CIV APP
31, 787 P.2d 1288; Miles
v. Young, 1991 OK CIV APP
101, 818 P.2d 1258;
Kilpatrick v. Kilpatrick, 2008 OK CIV APP 94, 198 P.3d 406.
ANALYSIS
¶6 Mother raises the following allegations of error and pleas for relief:
1. The trial court erred as a matter of law in awarding the parties joint
custody of the children given Mother's opposition and the weight of the
evidence showing immense hostility between the parties and their inability
to communicate, set aside differences, or engage in any joint
decision-making for the best interests of the children.
2. The District Court erred in failing to award sole custody to Mother
and by designating Father primary custodian given the weight of the evidence
of Father's misconduct throughout the proceedings and evidence showing
Mother was best able to provide a stable environment mentally, physically,
and financially for the children, she was primarily involved in their daily
activities, and tended to the children's medical and education needs.
3. The District Court showed arbitrariness and prejudice toward Mother
and undue bias toward Father by its decisions such that a remand to that
court for any part of this determination would be fundamentally unjust to
Mother. Therefore, Mother requests this equitable Court to exercise its
powers to render such judgment which the trial court should have by (1)
reversing the joint custody award and (2) awarding sole custody to Mother
based on the evidence before this Court.
I. HOSTILITY, COOPERATION AND JOINT CUSTODY
¶7 There are numerous statements by the Supreme Court and Court of Civil
Appeals on this subject, and harmonizing them all is difficult. It is made more
difficult by the fact that much of this case law involves modification of joint
custody post-decree, after the joint arrangement had been tested, away
from the immediate stress and hostility of a custody trial, and found
unworkable, rather than according to the standards for an initial custody
determination.
¶8 The lodestar by which a trial court must judge a custody contest is the
best interests of the child. We emphasize this language because this Court
has periodically observed divorce appeals based on the argument that a court is
legally barred by Supreme Court precedent from initially awarding joint custody
solely because the parents are hostile to each other.
¶9 These arguments are often based on "modification" cases, such as Foshee
v. Foshee, 2010 OK 85, 247 P.3d 1162, wherein the Supreme
Court noted: "When it becomes apparent to the court that joint custody is not
working and it is not serving the child's best interest, then a material and
substantial change of circumstance has occurred and the joint custody
arrangement must be vacated." Id., ¶ 15. We do not read Foshee
as indicating that mere conflict or personal dislike alone mandates that a
court award sole custody. Only when the situation between the parents has become
so bad that the child would be better off without input from both parents
regarding important life decisions is sole custody required.
¶10 We find it clear that some degree of opposition to joint custody by one
party does not alone render an initial joint custody decision an automatic abuse
of discretion. Hornbeck v. Hornbeck, 1985 OK 48, 702 P.2d 42, is clear that the trial
court's power to consider the alternative of joint custody when such an
arrangement clearly furthers the best interests of a child is not entirely
removed because one parent does not wish for joint custody.2 This view is consistent with
Foshee, and with 43 O.S. 2011
§ 109(c).3
The case of Rice v. Rice, 1979
OK 161, 603 P.2d 1125, notes,
"The question of custody, joint or otherwise, must be decided by reference to
the consequences for the particular child in each case." Id., ¶ 10. "The
primary contemplation must always be the welfare and best interests of the
child." Id. These cases indicate that the decisional factor is not the
immediate quality of the parents' relationship, but the long-term
effect that the relationship may have on a child in a joint custody
situation.
¶11 However, Hornbeck also states that certain circumstances are
necessary for joint custody: "These circumstances boil down to the presence of
factors showing the likelihood of parental cooperation in matters affecting the
child . . . ." 1985 OK 48, ¶ 19.
Certain decisions of the Court of Civil Appeals have gone further, implying that
joint custody is automatically an abuse of discretion if one party opposes it.
See, e.g., Dunham v. Dunham, 1989 OK CIV APP 44, 777 P.2d 403; Anderson v.
Anderson, 1990 OK CIV APP 23,
791 P.2d 116. However, the
Supreme Court does not appear to have adopted this view. Rather, it appears to
have stated a somewhat flexible standard rather than drawing a bright line,
invoking the best interest of the child as a primary concern, but noting that
joint custody requires some degree of cooperation.
¶12 Trial judges are traditionally given wide latitude in custody decisions.
The Supreme Court has consistently noted in many other cases that we should
"consider the better position of the trial court who observes first hand the
parties and their witnesses as they testify." Hoog v. Hoog, 1969 OK 174, ¶ 12, 460 P.2d 46.
"There are many things which do not appear in the printed record, but which
undoubtedly have their impact upon the determination of a question . . . ."
Id. "We refer to the mannerisms of the parties; to their attitude toward
the child, toward each other and to other people . . . ." Id. A rigid
rule forbidding joint custody in stated circumstances is contrary to this
established tradition, and to 43 O.S.
2011 § 109. Further, a rule that all that is needed to destroy a joint
custody arrangement is a deliberate decision not to cooperate creates an
incentive for a party who wants sole custody to obstruct peaceful cooperation,
even if peaceful joint custody would be in the best interests of the child.
¶13 The trial court in this case noted some hostility between the parents,
but expressed a belief that this could be overcome if the parties were given
more precise instruction and removed from the immediate stress and hostility of
a custody battle. We do not find that the court was barred, as a matter of law,
from ordering joint custody, with Father as primary physical custodian, by the
parties' lapses in common courtesy or outbursts of hostility.
II. FATHER'S ALLEGED MISCONDUCT THROUGHOUT THE PROCEEDINGS
¶14 The district court vested primary physical custody in Father. Mother
complains of numerous acts by Father that she argues render Father unfit for
custody, including alleged "misconduct" during the proceedings. The record shows
that Mother filed seven applications for contempt citations during the
proceedings, requesting in each case that Father, the primary custodial parent,
be sentenced to six months in jail.4 The court appears to have granted only one of these,
and imposed no jail time. The court noted both Father's apparent "derogation of
agreed court orders," and Mother's apparent "demand for strict adherence to the
letter thereof without regard to the need for reasonable alterations due to
illness or changing circumstances." The record demonstrates both that Father can
be impulsive, quick to anger, and speak intemperately, and that Mother and her
new "significant other" sometimes attempt to strategically provoke that anger.5
¶15 "The trial court should [neither] award nor change custody of a child to
punish one parent for contemptuous conduct; the court, however, may consider
such conduct in determining the welfare of the child." Young v. Young, 1963 OK 14, ¶ 19, 383 P.2d 211. As noted by Gorham
v. Gorham, 1984 OK 90, ¶¶
13-14, 692 P.2d 1375 (footnotes
omitted):
While the moral transgressions of the parties are to be considered in the
trial court's determination of what is in the best interest of the child in
a custody determination, the best interests of the child are of paramount
concern. . . .
. . . . The determinative factor in this case, as in all such cases, must
be the effect of the questioned behavior on the welfare of the child. To
establish an abuse of the trial court's discretion, there must be a showing
that this requisite nexus is present and that the effect of the behavior is
detrimental to the best interests of the child.
¶16 The trial court found that both parents are fit custodians for the minor
children and that the parties are able to cooperate with each other the
majority of the time concerning the children. It further found that "the
minor children are well cared for when in the custody of either parent and it is
patently evident that each parent deeply cares for these children." "The trial
court is confronted with the parties themselves and the witnesses," and is in a
much better position to assess the credibility of those witnesses than is this
Court from "the dry, printed words appearing in the record." Perry v.
Perry, 1965 OK 160, ¶ 5, 408 P.2d 285. We find nothing in the
record that could cause us to doubt these findings or require us to substitute
our own judgment for that of the trial judge. We do not concur with Mother's
argument that the trial court failed to properly consider Father's alleged
"misconduct throughout the proceedings"
III. ALLEGED ARBITRARINESS AND PREJUDICE AGAINST MOTHER AND
UNDUE BIAS TOWARD FATHER
¶17 Due process entitles a person to an impartial and disinterested tribunal
in both civil and criminal cases. "Every litigant is entitled to nothing less
than the cold neutrality of an impartial judge." Miller Dollarhide, P.C. v.
Tal, 2007 OK 58, ¶ 16, 163 P.3d 548. "[T]his Court has the
power to correct the error in refusing to disqualify, even as late as on the
appeal, and will use that power if necessary to promote justice or insure
popular respect for the courts." Casey v. Casey, 2011 OK 46, ¶ 14, 270 P.3d 109. However we find no
request that the judge in this case disqualify, and no particular facts of
this case indicating the trial judge was obligated to recuse himself. Our
impression of the written record is that of a judge attempting to act
impartially between the adversarial demands of two aggressive and competent
counsel and two frustrated parents. We find no evidence of the improper bias
claimed by Mother.
IV. BEST INTERESTS
¶18 The district court found that that "both parents are fit custodians for
the minor children"; that "the minor children are well cared for when in the
custody of either parent"; and that "it is patently evident that each parent
deeply cares for these children." Overall, the court found that physical custody
by Father was in the children's best interests, stating, "The minor children
have more stability in their lives; far greater familial, friends,
extracurricular and school contacts with Dibble area with the Petitioner than
that of the Respondent's home. There is a greater support group in their current
location from both the paternal and maternal sides of the failed marriage."
Contrary to Mother's brief, the court clearly did not base its decisions solely
on these geographic factors, but made a careful assessment of the numerous
allegations and arguments presented over five days of trial. We find the court's
custody decision to be within the range of discretion granted to a trial judge
in such matters. We therefore affirm its order.
CONCLUSION
¶19 We note especially that much of the case law on this issue involves
motions to change custody arrangements based on a material change of
circumstances post-decree. It is inherent in that scenario that joint custody
has been tested in a situation free of the stresses and adversarial posture
created by a custody contest and still found to be against a child's best
interests. The record shows some hostility and a refusal to cooperate between
the parents at the time of the divorce. It also shows, as the trial court found,
that "it is patently evident that each parent deeply cares for these children."
It does not show that they are incapable of overcoming this hostility in the
longer term and acting in the best interests of their children. If the latter
eventually proves to be the case, the established modification process is open
to the parties. We therefore affirm the decision of the district court.
RAPP, P.J., and BARNES, J., concur.