Nazworth v. Nazworth

1996 OK CIV APP 134, 931 P.2d 86, 68 O.B.A.J. 73, 1996 Okla. Civ. App. LEXIS 122, 1996 WL 753930
CourtCourt of Civil Appeals of Oklahoma
DecidedNovember 19, 1996
Docket86066
StatusPublished
Cited by17 cases

This text of 1996 OK CIV APP 134 (Nazworth v. Nazworth) 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
Nazworth v. Nazworth, 1996 OK CIV APP 134, 931 P.2d 86, 68 O.B.A.J. 73, 1996 Okla. Civ. App. LEXIS 122, 1996 WL 753930 (Okla. Ct. App. 1996).

Opinion

RE IF, Judge.

This appeal arises from a proceeding brought by Barry Nazworth seeking to change custody of the parties’ thirteen-year-old son and to receive a credit on his child support obligation for social security benefits paid directly to his son and daughter. Mr. Nazworth testified that he sought the change of custody of his son because: “He’s requested to come live with me.” He asked the trial court to interview his son and counsel for mother agreed to make the child available if the court chose to talk with him. However, counsel for mother also argued that the child’s preference was not a permanent, substantial, and material change of conditions to warrant a change of custody. Without interviewing the child, the trial court agreed with counsel for mother and entered a directed verdict denying the motion to change custody. As to the credit for the social security benefits, the trial court did not give a direct credit toward the current support obligation. Instead, the trial court added the benefits paid directly to the children to mother’s income for purposes of recomputing the parties’ respective support obligations. The trial court also indicated that it would entertain a motion for attorney fees from mother’s counsel, because the trial court felt the motion to change custody was frivolous. Mr. Nazworth seeks review of these decisions. For the reasons that follow, we reverse.

Mr. Nazworth’s testimony that his son requested the change of custody was “proof [that] called for in-depth judicial assessment of the [existing custodial arrangement].” Wells v. Wells, 648 P.2d 1223, 1224 (Okla.1982). Therefore, it was error for the trial court to dispose of the motion for change of custody without taking and considering evidence from the child and custodial mother, if she desired to present it.

Mother has argued that the trial court’s denial of the motion for change of custody is supported by the rule in Davis v. Davis, 355 P.2d 572, 575 (Okla.1960), that “the whims, wants and desires of a minor child are not the criteria for determining which parent should be granted custody.” See also Duncan v. Duncan, 449 P.2d 267, 269 (Okla.1969). Additionally, there is authority that an ex *88 pression of preference alone is not sufficient to constitute a change of circumstances to support a change of custody. Marriage of Padbury, 46 Or.App. 533, 612 P.2d 321, 323 (1980); Merrill v. Merrill, 82 N.M. 458, 483 P.2d 932, 933-34 (1971).

However, where the preference is explained by the child and good reasons for the preference are disclosed, the preference and supporting reasons will justify a change of custody. Yates v. Yates, 702 P.2d 1252, 1254 (Wyo.1985). It is almost a “universal rule that ... when a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment as to its future welfare, based upon facts and not mere whims, its wishes are one factor which may be considered by the court in determining custody ... because the consideration of such wishes unll aid the court in making a custodial [decision] which is for the best interests and welfare of the child.” Annotation, Child’s Wishes as Factor in Awarding Custody, 4 A.L.R.3d 1396, 1402 (1965) (emphasis added) (footnotes omitted).

Oklahoma case law and statutory law mirror this “universal rule.” In the case of Ex parte Hudspeth, 271 P.2d 371, 373 (Okla.1954), the supreme court upheld the trial court’s custody determination because the child in question “was of the age and intelligence to give mature consideration to his own problems, and his discussion with the court was a factor which received serious consideration in settling the matter of his custody.” Significantly, one of the earliest eases to consider this issue held that the “trial court erred in not taking into consideration the wishes of these children [ages 14, 12 and 10] in determining their custody,” and reversed with directions that the trial court hold a hearing for the purpose of “taking into consideration the wishes of the children.” Bishop v. Benear, 132 Okla. 116, 270 P. 569, 571-72 (1928). Even Davis and Duncan recognize that the court may consider the preference of a child who is of sufficient age to form an intelligent preference. This was also the statutory rule in Oklahoma for just over sixty years. See 30 O.S.1981 § 11 (repealed in 1983).

The current statutory authority governing a child’s expression of a custodial preference is codified as 43 O.S.1991 § 113. The current statute does allow the trial court to determine “whether the best interest of the child will be served by the child’s expression of preference.” This is a good rule in cases involving an initial custody decision. However, where a change of custody is sought because a child has asked for the change, the child’s interests are best served by “serious consideration” of the preference and the reasons for it, Hudspeth, 271 P.2d at 373, and “in-depth judicial assessment” of the current custodial arrangement. Wells, 648 P.2d at 1224. It may well turn out that the change of custody is not in the child’s best interests, but such a determination cannot be made fairly and reasonably without hearing from the child.

The issue of crediting government dependency benefits toward child support payments “has given rise to an increasing amount of litigation in recent years.” Michael A. DiSabatino, Annotation, Right to Credit on Child Support Payments for Social Security or Other Government Dependency Payments Made for Benefit of Child, 34 A.L.R.5th 447, 463 (1996). “On the whole, the courts have shown a willingness to allow such a credit, albeit with varying degrees of procedural difficulty, if the benefits to the child can be said in some sense to have been generated by the efforts or qualifications of the obligor parent.” Id.

The “procedural difficulty” encountered by the three Oklahoma eases to address this issue have included concern over (1) the intent of the divorce decree that the child support obligation be satisfied from social security disability payments that were being made at the time of the divorce, Nibs v. Nibs, 625 P.2d 1256, 1257 (Okla.1981); (2) equitable considerations that would affect whether social security disability benefits should be credited toward an unadjudicated support obligation to prevent adoption without the consent of the obligor parent, Matter of Adoption of B.R.H., 823 P.2d 383, 387 (Okla.Ct.App.1991); and (3) how the credit should be applied under the statutory child support guidelines, Wilson v. Stenwall, 868 P.2d 1317, 1319 (Okla.Ct.App.1992).

*89 In Wilson, 868 P.2d at 1319, the obligor father was allowed credit for the social security retirement dependent benefit being paid the child where the obligor father’s retirement occurred after the original child support order was entered.

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Cite This Page — Counsel Stack

Bluebook (online)
1996 OK CIV APP 134, 931 P.2d 86, 68 O.B.A.J. 73, 1996 Okla. Civ. App. LEXIS 122, 1996 WL 753930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nazworth-v-nazworth-oklacivapp-1996.