Marriage of Doan-Uyen Thi Le v. Thang Q. Nguyen

2010 OK CIV APP 104, 241 P.3d 647, 2010 Okla. Civ. App. LEXIS 87
CourtCourt of Civil Appeals of Oklahoma
DecidedJanuary 22, 2010
Docket105,919. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3
StatusPublished
Cited by1 cases

This text of 2010 OK CIV APP 104 (Marriage of Doan-Uyen Thi Le v. Thang Q. Nguyen) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of Doan-Uyen Thi Le v. Thang Q. Nguyen, 2010 OK CIV APP 104, 241 P.3d 647, 2010 Okla. Civ. App. LEXIS 87 (Okla. Ct. App. 2010).

Opinions

CAROL M. HANSEN, Presiding Judge.

1 In this post-divorce proceeding, Appellant/Father, Thang Q. Nguyen (Father), seeks review of the trial court's order [1] granting the relocation request of Appel-lee/Mother, Doan-Uyen Thi Le (Mother), allowing her to move with the couple's two children from Oklahoma to New York, and [2] denying the requests of both Mother and Father that joint custody be terminated.

12 Mother and Father were divorced in September 2005. The couple had two children during the marriage, a son born in 1999 and a daughter born in 2000. The consent divorce decree implemented the Joint Child Custody Plan submitted by the parties, with Mother serving as the primary custodial parent, while Father exercised generous visitation, seeing his children as much as four times per week.

13 On August 28, 2007, Mother filed a notice of relocation due to her engagement and planned second marriage to a man living in New York. Mother requested to move with the children to New York, which would necessitate changes in the existing visitation format. Father filed his objection to the relocation on September 4, 2007.

T4 Shortly thereafter, Father filed a motion to terminate joint custody and to award him sole custody of the children, which would allow the children to remain with him in Oklahoma. Mother responded with her own motion to terminate joint custody, citing several instances of the parents' failure to get along and communicate. Mother's second marriage took place on November 19, 2007, though neither she nor the children had moved at the time of the hearing.

T5 On February 15, 2008, the trial court held a hearing on Mother's relocation notice and the corresponding objections and respon[649]*649sive motions to terminate joint custody. The court heard testimony from the parties, as well as several other witnesses, including the children's soccer coach and aunt. The trial court granted Mother's motion to relocate, denied both parents' requests for termination of the joint custody arrangement, and set out Father's visitation. The trial court's written order of May 1, 2008 memorialized the ruling the court made at the conclusion of the February 15, 2008 hearing. From this order granting Mother's relocation motion and denying all other motions, Father appeals.

16 We will not disturb the trial court's custody decision unless we find an abuse of discretion or that the decision is clearly contrary to the weight of the evidence. Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871. The trial court's decision which allowed Mother's request to relocate with the children to New York is also reviewed by the Damiel standard. Moore v. Moore, 2009 OK CIV APP 27, ¶7, 209 P.3d 318, 320 (citing Daniel v. Daniel, 42 P.3d 863, 871). The burden is upon Father, as the appealing party, to demonstrate the trial court's decision was erroneous and contrary to the children's best interests. Daniel, 42 P.3d at 871.

17 As a procedural matter, Father contends the trial court considered the issues of this case in an improper order. He claims the court should not have made the decision about Mother's relocation notice prior to terminating the joint custody arrangement and awarding him custody of the two children.

T8 Neither 43 0.8.2001 § 109, which provides the authority for joint custody, nor 48 O.S. Supp.2002 § 112.3, which provides for relocation notification and approval, expressly directs the trial court in terms of which issue to address first. Nor does Father offer legal authority dictating custody decisions must precede relocation decisions. Section 112.3(I), which provides, "[a] proposed relocation of a child may be a factor in considering a change of custody," seems to indicate the two issues should be considered in conjunction with one another. The Court of Civil Appeals, in Moore v. Moore, 2009 OK CIV APP 27, 209 P.3d 318, reached a similar conclusion. There, the appellant argued the relocation issue should be tried first pursuant to § 112.3(K), but the Court, finding no authority for that position, held there was no abuse of discretion in joining the issues for trial.

T9 In any event, there is nothing in the trial court's decision to suggest the order in which the court considered the two issues. While the court, speaking from the bench, first granted the relocation motion, and then denied the parties' motions to terminate joint custody, we cannot assume anything about the order in which the court cognitively considered the two matters. We further note there is nothing in the record indicating Father requested the termination of joint custody motions be considered separately or in any particular order, nor a request or objection asking for clarification of the order in which the court considered the issues. We find no merit in this proposition of error.

$10 Father also asserts granting the relocation request should be reversed and remanded because he should have been awarded full custody. This is essentially a best interests argument on Father's part. Under § 112.3(K)-"The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child."

11 Father does not claim Mother's move is made in bad faith. Mother's new husband lives and works in New York. There was no evidence presented to indicate there was any effort on Mother's part to remove the children to New York for any purpose other than to be with her husband. There was even some evidence Mother and her new spouse explored the possibility of living in Oklahoma, but the husband's opportunities and employment were better served by his staying in New York, where he had existing employment and a home.

112 With Mother making a prima facie case relocation was in good faith, the burden of proof then shifted to Father to show the move with Mother to New York would not be in the children's best interests. The court [650]*650has a statutory non-exhaustive list of considerations to address in determining whether relocation serves the children's best interests:

1. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
a. the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life,
b. the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child,
c. the feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation arrangements, considering the logistics and financial cireumstances of the parties,
d. the child's preference, taking into consideration the age and maturity of the child,
e. whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the nonrelo-cating person,
f.

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Marriage of Doan-Uyen Thi Le v. Thang Q. Nguyen
2010 OK CIV APP 104 (Court of Civil Appeals of Oklahoma, 2010)

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Bluebook (online)
2010 OK CIV APP 104, 241 P.3d 647, 2010 Okla. Civ. App. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-doan-uyen-thi-le-v-thang-q-nguyen-oklacivapp-2010.