KENNETH L. BUETTNER, Judge.
T1 Plaintiff/Appellant Bradley Lathrop Moore (Father) appeals from the trial court's Order Modifying Custody, in which the trial court terminated joint custody and awarded custody to Defendant/Appellee Angelia Kay Moore (Mother). The trial court's order is not against the clear weight of the evidence or an abuse of discretion and we affirm.
T 2 In the parties' 2001 Decree of Divorcee, the trial court awarded joint custody of the parties' three minor children. Father had primary physical custody. The terms of the Joint Custody Plan were modified in 2008, but the parties retained joint custody.
T3 The instant dispute arose in August 2006, when Father informed Mother he planned to move with the children from Tuttle to Collinsville, Oklahoma, a week later. Father did not give the "notice of a proposed relocation of the principal residence of a child" required by 48 O.S.Supp.2002 § 112.3(C).
14 Mother filed her Objection to Relocation of Children and Motion to Modify Custody, Visitation and Support August 16, 2006. Mother asserted Father gave oral notice August 8, 2006 that he planned to move the children August 14, 2006. Mother noted Father had moved the children from Moore to Tuttle in 2004, with only two days' notice, and that Mother had maintained her visitation schedule despite the added 25 miles distance between Mother's Moore home and Tuttle. Mother further contended that the proposed move to Collinsville would reduce Mother's visitation time by 60% and would take the children from their friends, daycare, and school activities in Moore and Tuttle. Mother asserted, therefore, that the move was not in the children's best interests.
€ 5 Mother also sought to have joint custody terminated and sole custody awarded to her. Mother asserted Father had developed a kidney disease which required him to receive dialysis three times a week and impacted his ability to work and care for the children. Mother noted that instead of relying more on her for help, Father elected to move the children farther away from Mother's home.
T6 Trial on the issues of relocation and modification of custody was held March 18, 2007.
The court issued its Order Modifying Custody November 5, 2007.
The trial court sustained Mother's objection to relocation.
The trial court further found there had been a substantial, material, and permanent change in conditions such that it was in the best interests of the children to terminate joint custody. The court awarded sole custody to Mother.
¶ 7 We will not disturb the trial court's custody ruling "absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence." Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871. We give deference to the trial court in-reviewing custody decisions because it "is better able to determine controversial evidence by its observation of the parties, the witnesses and their demeanor." Hoedebeck, now Shaw, v. Hoedebeck, 1997 OK CIV APP 69, ¶ 10, 948 P.2d 1240, 1243.
18 Title 48 O.S.Supp.2002 § 112.3 establishes the procedure for court approval of relocating children of divorced parents. The pertinent provisions of that section state (emphasis added):
G. 1. The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provided by this section unless a parent entitled to notice files a proceeding seeking a temporary or permanent order to prevent the relocation within thirty (30) days after receipt of the notice.
2. A parent entitled by court order or written agreement to visitation with a child may file a proceeding objecting to a proposed relocation of the principal residence of a child and seek a temporary or permanent order to prevent the relocation.
***
I. A proposed relocation of a child may be a factor in considering a change of custody.
***
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 non-relocating person to show that the proposed relocation is not in the best interest of the child. |
On appeal, Father argues that the trial court erred in finding that the proposed relocation was not in good faith; the court erred by requiring Father to prove both that the relocation was in good faith and that it was in the best interests of the children; and finally, that Mother failed to prove a substantial change in conditions warranting a change in custody.
¶ 9 We find no support for Father's claim that the court erred in finding the relocation was not in good faith. The trial court explained its decision at the conclusion of the hearing:
The testimony indicates to me that there's a serious question about what the primary motivation for the move is to northeast Oklahoma. Listening to everybody's testimony there's a lot of conflict about that. Was it so (Father) could live closer to his mother? Was it so that his spouse could get another job? I mean, because the job she ultimately ended up with isn't the one she transferred up there for. I mean, that's the bottom line. It feels like subterfuge to the Court.
We have reviewed the transcript. The trial court's finding that the motivation for the relocation was unclear and that the stated reasons may have been subterfuge is not against the clear weight of the evidence.
¶ 10 Father next argues that the trial court required him to prove both that the relocation was in good faith and that it was in the children's best interests.
We have quoted above the trial court's explanation of its decision at the conclusion of the hearing, in which it effectively found the relocation was not made in good faith (or that Father had failed to meet his burden of proof on this issue). In Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶ 7, 160 P.3d 951, the Supreme Court explained:
If a timely objection is filed, the custodial parent has the initial burden of showing that the proposed relocation is made in good faith. If that is shown, the burden of proof then shifts to the noneustodial parent to show the proposed move is not in the best interest of the child.
160 P.3d at 954. Conversely, if the custodial parent does not meet the burden of showing good faith, then the burden of proving the relocation is in the best interests of the children remains with the custodial parent. Accordingly, to the extent the trial court's statement at the beginning of the hearing suggested the court misunderstood the statutory burden of proof, such an error is bharmless in this case because the trial court found Father had not met his burden of showing good faith. As a result, the objection could be sustained based on a finding Father did not prove the move was in the children's best interests.
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KENNETH L. BUETTNER, Judge.
T1 Plaintiff/Appellant Bradley Lathrop Moore (Father) appeals from the trial court's Order Modifying Custody, in which the trial court terminated joint custody and awarded custody to Defendant/Appellee Angelia Kay Moore (Mother). The trial court's order is not against the clear weight of the evidence or an abuse of discretion and we affirm.
T 2 In the parties' 2001 Decree of Divorcee, the trial court awarded joint custody of the parties' three minor children. Father had primary physical custody. The terms of the Joint Custody Plan were modified in 2008, but the parties retained joint custody.
T3 The instant dispute arose in August 2006, when Father informed Mother he planned to move with the children from Tuttle to Collinsville, Oklahoma, a week later. Father did not give the "notice of a proposed relocation of the principal residence of a child" required by 48 O.S.Supp.2002 § 112.3(C).
14 Mother filed her Objection to Relocation of Children and Motion to Modify Custody, Visitation and Support August 16, 2006. Mother asserted Father gave oral notice August 8, 2006 that he planned to move the children August 14, 2006. Mother noted Father had moved the children from Moore to Tuttle in 2004, with only two days' notice, and that Mother had maintained her visitation schedule despite the added 25 miles distance between Mother's Moore home and Tuttle. Mother further contended that the proposed move to Collinsville would reduce Mother's visitation time by 60% and would take the children from their friends, daycare, and school activities in Moore and Tuttle. Mother asserted, therefore, that the move was not in the children's best interests.
€ 5 Mother also sought to have joint custody terminated and sole custody awarded to her. Mother asserted Father had developed a kidney disease which required him to receive dialysis three times a week and impacted his ability to work and care for the children. Mother noted that instead of relying more on her for help, Father elected to move the children farther away from Mother's home.
T6 Trial on the issues of relocation and modification of custody was held March 18, 2007.
The court issued its Order Modifying Custody November 5, 2007.
The trial court sustained Mother's objection to relocation.
The trial court further found there had been a substantial, material, and permanent change in conditions such that it was in the best interests of the children to terminate joint custody. The court awarded sole custody to Mother.
¶ 7 We will not disturb the trial court's custody ruling "absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence." Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871. We give deference to the trial court in-reviewing custody decisions because it "is better able to determine controversial evidence by its observation of the parties, the witnesses and their demeanor." Hoedebeck, now Shaw, v. Hoedebeck, 1997 OK CIV APP 69, ¶ 10, 948 P.2d 1240, 1243.
18 Title 48 O.S.Supp.2002 § 112.3 establishes the procedure for court approval of relocating children of divorced parents. The pertinent provisions of that section state (emphasis added):
G. 1. The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provided by this section unless a parent entitled to notice files a proceeding seeking a temporary or permanent order to prevent the relocation within thirty (30) days after receipt of the notice.
2. A parent entitled by court order or written agreement to visitation with a child may file a proceeding objecting to a proposed relocation of the principal residence of a child and seek a temporary or permanent order to prevent the relocation.
***
I. A proposed relocation of a child may be a factor in considering a change of custody.
***
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 non-relocating person to show that the proposed relocation is not in the best interest of the child. |
On appeal, Father argues that the trial court erred in finding that the proposed relocation was not in good faith; the court erred by requiring Father to prove both that the relocation was in good faith and that it was in the best interests of the children; and finally, that Mother failed to prove a substantial change in conditions warranting a change in custody.
¶ 9 We find no support for Father's claim that the court erred in finding the relocation was not in good faith. The trial court explained its decision at the conclusion of the hearing:
The testimony indicates to me that there's a serious question about what the primary motivation for the move is to northeast Oklahoma. Listening to everybody's testimony there's a lot of conflict about that. Was it so (Father) could live closer to his mother? Was it so that his spouse could get another job? I mean, because the job she ultimately ended up with isn't the one she transferred up there for. I mean, that's the bottom line. It feels like subterfuge to the Court.
We have reviewed the transcript. The trial court's finding that the motivation for the relocation was unclear and that the stated reasons may have been subterfuge is not against the clear weight of the evidence.
¶ 10 Father next argues that the trial court required him to prove both that the relocation was in good faith and that it was in the children's best interests.
We have quoted above the trial court's explanation of its decision at the conclusion of the hearing, in which it effectively found the relocation was not made in good faith (or that Father had failed to meet his burden of proof on this issue). In Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶ 7, 160 P.3d 951, the Supreme Court explained:
If a timely objection is filed, the custodial parent has the initial burden of showing that the proposed relocation is made in good faith. If that is shown, the burden of proof then shifts to the noneustodial parent to show the proposed move is not in the best interest of the child.
160 P.3d at 954. Conversely, if the custodial parent does not meet the burden of showing good faith, then the burden of proving the relocation is in the best interests of the children remains with the custodial parent. Accordingly, to the extent the trial court's statement at the beginning of the hearing suggested the court misunderstood the statutory burden of proof, such an error is bharmless in this case because the trial court found Father had not met his burden of showing good faith. As a result, the objection could be sustained based on a finding Father did not prove the move was in the children's best interests. The Order relates that the "Motion to Relocate of Plaintiff should be denied and the objection thereto should be sustained." It appears that the trial court properly applied the § 112.3(K) burdens of proof, and the decision is not against the clear weight of the evidence, nor an abuse of discretion.
¶ 11 Lastly, we address Father's claim that the court erred in terminating
joint custody and awarding sole custody to Mother. The trial court explained its reasoning at length on the record.
Joint custody is not proper where the parents are not able to cooperate. Damiel, supro at ¶ 20. When it becomes apparent to the court that joint custody is not working and it is not serving the children's best interests, then a material and substantial change of cireum-stances has occurred and the trial court may terminate joint custody. Damiel, supra. The clear weight of the evidence in this case showed that the parties were not able to cooperate in parenting their children.
¶ 12 Upon terminating joint custody, the trial court must proceed as if making the original custody determination in the divoree.
Daniel, supra at T21. The paramount consideration in a custody order is the best interests of the children. Id. at ¶ 19. The evidence in the hearing showed that Father may have been physically abusive, and that he acted arbitrarily and unreasonably in disciplining the children. Father also sought to remove the children without notice from the school and town where they had established connections. Father had previously moved the children to a new school which required Mother to drive 25 miles each way to exercise her visitation rights. The move to Collinsville would drastically reduce Mother's visitation time. We find the trial court's award of sole custody to Mother was not against the clear weight of the evidence nor an abuse of discretion.
AFFIRMED.
BELL, P.J., and ADAMS, J., concur.