IN RE THE MARRIAGE OF AMANDA MARIA VARBEL, NOW PATTISON, AND
BRICE DUANE VARBEL:
Wm. C. Hetherington, Jr., Vice-Chief Judge:
¶1 Brice Varbel (Father) appeals an order modifying previously entered terms
of a Decree regarding custody and his visitation with JV (Child). Father alleges
the trial court's custody modification is contrary to the best interest of Child
and violates statute by expressing a preference for public schooling. At the
outset, we must establish the nature of the matter before us.
¶2 Amanda Varbel (Mother) and Father wed on December 1, 2005, and Child was
born in September of 2006. On June 4, 2007, Mother filed a Petition for
Dissolution of Marriage and the marital union was dissolved in a Decree filed on
March 12, 2008.1 Mother was restored to her maiden name, child
support calculations were made, and the parties' debts and property were
divided. The Decree provides Mother is "to remain as the primary custodian of
the minor child subject to [Father's] frequent and liberal visitation" pursuant
to an attached Kay County Standard Visitation Schedule and, when Child reaches
24 months of age, "a plan of shared parenting shall be initiated whereby each
party shall enjoy alternating weeks of visitation with the minor child with the
parties meeting in Stillwater, Oklahoma for the purpose of child exchange" and
no extended summer visitation is to occur "so long as the shared custody plan is
in place." In his Brief in Chief, Father states: "Both parties were found fit
and awarded joint custody," and the parties appear to have treated the schedule
of alternating visitation as a kind of joint custody.
¶3 The Decree contains provisions generally encouraging cooperation but does
not contain provisions addressing any form of shared decision making. Although
the above-quoted language refers to "shared parenting" and "shared custody,"
there is no joint custody plan as described in 43 O.S.Supp.2009 § 1092 in the
appellate record. Consequently, we conclude the record does not support an
assertion the Decree established joint custody. Instead, it appears the Decree
provides for primary custody of Child with Mother, and what began as standard
visitation for Father became more extended visitation once Child attained age 2.
This distinction is important because it affects both what the parties needed to
demonstrate for a change in the Decree's original provisions and it affects our
review.3
STANDARD OF REVIEW
¶4 Custody and visitation are matters of equity and are left to the sound
discretion of the trial court. Kahre v. Kahre, 1995 OK 133, ¶ 19, 916 P.2d 1355, 1360. "Accordingly,
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. Boatsman v. Boatsman, 1984 OK 74, 697 P.2d 516." Williamson v.
Williamson, 2005 OK 6, ¶ 5,
107 P.3d 589, 591. "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." In the Matter
of BTW, 2008 OK 80, ¶ 20, 195 P.3d 896, 908.
¶5 As stated Fox v. Fox, 1995 OK 87, ¶ 7, 904 P.2d 66, 69:
The evidentiary requirements for a change of a permanent custody order
are well established. In Gibbons v. Gibbons, [1968 OK 77], 442 P.2d 482 (Okla.1968), we
held that the parent asking for modification must establish: 1) a permanent,
substantial and material change in circumstances; 2) the change in
circumstances must adversely affect the best interests of the child; and, 3)
the temporal, moral and mental welfare of the child would be better off if
custody is changed. Finding that the paramount consideration in awarding
custody on a motion to modify is what appears to be in the best interests of
the child in respect to its temporal, mental and moral welfare, and the
entire determination must be in light of what is in the child's best
interest, Gibbons was reaffirmed in David v. David, [1969 OK 164], 460 P.2d 116 (Okla.1969). In
David v. David, [1969 OK164, ¶ 8], 460 P.2d 116, 117 (Okla.1969),
we said, "The law is clear that in a hearing upon a motion to modify, the
burden is upon the applicant to show a substantial change in conditions
since the entry of the last order or decree which bears directly upon the
welfare and best interest of the child." And more recently in Gorham v.
Gorham, [1984 OK 90], 692 P.2d 1375 (Okla.1984), we
emphasized the necessity to show a direct and adverse effect on the child's
best interests.
¶6 "One who alleges error in the trial court's determination on visitation
must put forth the evidence upon which he relies and must affirmatively show how
the determination is contrary to the best interest of the child." K.R. v.
B.M.H., 1999 OK 40, ¶ 18, 982 P.2d 521, 524. (Citation
omitted.) "The trial court is entitled to choose which testimony to believe as
the judge has the advantage over this Court in observing the behavior and
demeanor of the witnesses." Mueggenborg v. Walling, 1992 OK 121, ¶ 7, 836 P.2d 112, 114.
FACTS
¶7 The parties' current dispute began over Child's schooling. Mother, a
public school graduate, favors a public school education for Child. Father was
home schooled to an eighth grade equivalency and then was advanced enough to
enter public school at grade nine. He favors home schooling.
¶8 In April of 2011, Mother informed Father she wanted Child to attend a
Ponca City Public School System Pre-K program. Father opposed the enrollment,
told her he thought home schooling was best, and claimed it would cause his
visitation to be limited to weekends. Mother testified he became "a little
irate," she discontinued the conversation, and she told him, "Okay, well,
obviously we can't come to an agreement, so I'll just file a motion and bring it
to court." Father testified that when he tried to discuss public schooling
versus home schooling with Mother, she told him she would take him to court and
hung up on him. On the day after the April telephone conversation, Mother
enrolled Child in the Pre-K program which was to begin on August 10, 2011.
¶9 On June 13, 2011, Mother filed a Motion to Modify Decree of Divorce,
claiming a permanent, substantial and material change of circumstances affecting
the best interest of Child required a change in custody and visitation, namely,
Child's attainment of school age. In her motion, she seeks "full physical
custody" of Child and asks that Father be awarded visitation according to the
Kay County Standard Visitation Schedule provisions and in conjunction with
Child's educational enrollment in the Ponca City public school system.
¶10 In his response to Mother's motion, Father also claims there had been a
permanent, substantial, and material change of circumstances. He asserts Child
would be "unquestionably better off" if placed in his "full legal custody."
Father alleges Mother has "made every effort" to minimize his involvement in
Child's life and claims "[t]here are no factors that would justify" Mother being
"granted legal custody."4
¶11 In a "Counterclaim For Legal Custody" filed on July 25, 2011, Father
alleges various reasons5 Mother's custody of Child should be disfavored.
Father argues Child was enrolled in a public school Pre-K program by Mother so
as to minimize his involvement and that he and Child's paternal grandmother have
initiated an education plan for Child's transition to school. He also cites
efforts by Child's paternal grandparents (including their relocation near him
and the alteration of his father's work participation) which allow them to
provide care and educational assistance, the presence of other family members
near his location, how child has only been cared for by family members (as
opposed to day care) when with him, and his flexibility at work as factors
favoring his own primary custody of Child. He contends Child has thrived with
the current visitation schedule, he should have "full legal custody," and Mother
should be granted liberal visitation.
¶12 On August 9, 2011, the trial court conducted a scheduling hearing and
entered an interim order. A minute order for that date provides Father would
have visitation with Child every other weekend from Friday at 6 p.m. until
Sunday at 6 p.m.
¶13 Hearings on Mother's motion to modify began on August 30, 2011, and were
completed on October 6, 2011. At completion of the first phase of hearing,
following a request by Father's counsel and without any objection by Mother, the
trial court appointed a guardian ad litem. Father's counsel then noted the
parties were off record at the time of entry of the August 9, 2011 interim order
and renewed an objection to the interim order, claiming it had allowed Mother to
"unilaterally" change the visitation schedule. When stating the objection,
counsel also claimed Father had offered a solution on August 9, 2011, which
would allow Child to keep on track with home schooling which had been overruled
by the trial court. At the close of the first phase of hearing, the trial court
ordered Father to have visitation every weekend.
¶14 During hearings, the trial court heard testimony about the parties'
handling of issues such as social interactions, activities, and nutrition/meal
habits. The trial court also heard testimony about the parties' respective
educations, employment, and work schedules. The trial court heard other evidence
relative to the issues raised in the counter motions for modification.
¶15 Since age one, Child has attended day care when Mother was at work. After
the marital dissolution, Mother lived with her parents until April of 2010, when
they relocated to Louisiana due to her Father's job. For two years prior to that
time Mother dated Ted Rains (Rains), and when her parents moved, she and Child
began to live with Rains. She and Rains were not engaged or married. She takes
Child to school in the morning. Rains acts as a step parent and sometimes
transports Child for visitation exchanges in Stillwater, Oklahoma when Mother's
work schedule conflicts with the visitation schedule. He also picks child up
from day care after his work time when Mother's schedule prevents her from doing
so. Mother testified Child receives Sooner Care coverage for medical insurance
but had no other state assistance enrollment. Mother cited socialization as one
factor in favor of public school attendance. She provided as exhibits several
photographs of Child with other children, who Mother described some as "cousins,
[Rains's] side of the family, nieces and nephews." One photograph label
identifies the person with Child as "Grandma Lisa ([Rains's] Mom)."
¶16 Child's maternal grandmother, Debra S. Pattison (Pattison), testified she
moved in April of 2010 because the facility where her husband worked closed.
Since relocating, she had visited Mother and Child three to five times, most
recently in May of 2011. She felt Rains was "a good guy," trusted him, and did
not feel there was anything inappropriate about the way he related to Child.
Pattison reported Mother and Rains started dating when Child was about 18 months
to two years old. She did not know Child was being home schooled. From the time
of the Decree in 2008 until the early part of 2010, Pattison stated Mother had
used day care for Child only when she worked, and she sometimes had watched
Child when Mother worked or if she had to run an errand. Mother then rested.
¶17 Father testified that either he or his mother care for Child when she is
with him. Father previously trained for and obtained certification as a teacher
for grades 6 through 12, but he allowed the certification to lapse due to his
current employment. Father has had custody of another child, KV, who is about
two and a half years older than Child, since KV was about two years old. KV, who
has medical problems, is home schooled. Father describes KV and Child as "very
close." Father cites his work flexibility as allowing him to participate in
activities with Child and allowing him to promote Child's contact with
Mother.
¶18 Father put on fairly extensive evidence of the type of materials used for
the home schooling, which included materials from an accredited system, and
privately accumulated resources such as computer learning programs, flash cards,
books, and similar items. Father's mother, Elizabeth Varbel, a lawyer by
training, home schooled Father and his sister. She and Father provide home
schooling for KV and Child. She described various educational resources she uses
for home schooling. Child was age three and a half when she began teaching
letters and numbers. Father and his mother both testified they thought Child had
regressed educationally and they felt the Pre-K program was below Child's skill
level. Father's parents, his sister, and her husband and children live near him.
KV's grandmother and her husband are active in both KV and Child's lives.
¶19 The Guardian Ad Litem, Chris Landes (GAL), filed a report on October 6,
2011, the day hearing on Mother's motion reconvened. In his report he discounts,
contradicts, or finds irrelevant several factors Father cited in his opposition
to Mother's motion, finds both parties fit, states both have support systems to
help with caring for Child, and has no concerns about their respective homes.
GAL notes Child has thrived in the alternating visitation plan and recommends it
be continued. The GAL also testified, and he was questioned about his
observations and conclusions. GAL felt Child should be placed in Father's
primary care if the alternating visitation schedule was not used and the
placement would be in Child's best interest. He cited Father's ability to
provide additional visitation as situations arose.
¶20 Following hearing, the trial court modified the Decree6 by placing primary custody
with Mother and providing for visitation by Father every weekend from 6 p.m. on
Friday until 6 p.m. on Sunday, any Federal or State Monday holidays are
considered part of the weekend with a 6 p.m. Tuesday return time, and the entire
summer vacation excepting two weeks in June and two weeks in July. Mother is
ordered to provide Father at least thirty days' notice of which two weeks she
has chosen and she may not choose consecutive two week periods such as last two
weeks in June and the first two in July. An attached Holiday Visitation Schedule
governs all other visitation7 and sets up a summer visitation schedule if notice
is not given timely.
THE APPEAL
¶21 Father appeals, arguing the trial court's modification of the Decree
fails to make a determination in Child's best interest and it expresses a bias
or preference in favor of public schooling. He alleges Mother unilaterally
discontinued the system of alternating weeks of visitation in April of 2011 by
enrolling Child in a Pre-K program. The record does not support that assertion.
According to the evidence adduced at the hearings, Child's first day of
attendance at the Pre-K program was August 10, 2011, that is the day
after the trial court entered the interim order changing Father's visitation to
weekends and twenty days before hearings began on the Mother and Father's
respective motions.
¶22 Father also complained of a period when Mother did not keep to the
alternating week schedule due to Child's infection with head lice and the
failure of the first attempted treatments for the condition. The dates this
occurred were not elicited in the testimony.
¶23 Section 112(D)(1) of Title 43 provides that "[e]xcept for good cause
shown, a pattern of failure to allow court-ordered visitation may be determined
to be contrary to the best interests of the child and as such may be grounds for
modification of the child custody order." On its face, this statute recognizes a
pattern of conduct may serve as the basis for a custody modification, and
it also contains an exception allowing good cause to be shown for interrupting
visitation. "'Good cause' is determined by application of equitable principles."
King v. King, 2005 OK 4,
¶ 18, 107 P.3d 570, 578. The
record does not demonstrate a pattern of denial of visitation and good cause was
shown for the single episode of temporary denial of visitation.
¶24 Both parties cite Child's attainment of school age as a change of
condition. However, the mere fact there has been a change of condition since
entry of the last order, standing alone, is not sufficient for a change
of custody because, as cases have long recognized, the change also must
adversely affect a child's temporal, moral and mental welfare so as to
necessitate the trial court's alteration of the current custodial placement.
See, e.g., Daniel v. Daniel, 2001 OK 117, 42 P.3d 863; Fox v. Fox, 1995 OK 87, 904 P.2d 66; Pirrong v.
Pirrong, 1976 OK 36, 552 P.2d 383; Owens v. Owens,
1972 OK 26, 494 P.2d 318; Gibbons v.
Gibbons, 1968 OK 77, 442 P.2d 482; Johnson v.
Wingert, 2011 OK CIV APP
128, 268 P.3d 145. The
record does not support a conclusion Child has suffered an adverse effect
necessitating a change in the current custodial placement.
¶25 Father contends the trial court exhibited an impermissible preference for
public schooling over home schooling. His mother testified she had purchased the
Calvert home schooling system in June of 2011, Child had begun to use it, and if
the system, which was one approved by the State of Oklahoma, was used for two
years Child might have been allowed to skip a grade upon changing to public
school if she was ahead of her cohort in the public school. In other words, both
Father and his mother considered Child as capable of excelling. However, the
trial court also heard evidence that the public school system was considering
changes which would result in children attaining an even later age before
entering school, i.e., making a policy decision resulting in more
maturity at each subsequent grade level. The record shows the trial court
considered all the evidence concerning both educational approaches. As noted
above, primary custody in the Decree was placed with Mother. Cooperative
decision-making is a worthy and important goal, but as Child's primary
custodian, participation in the Pre-K program is within the purview of her
control. As Mother points out, Father testified he had planned to home school
Child only until first grade, only a short time beyond pre-school. However,
Father did qualify his plan as an "initial" one, subject to revision. Even so,
the selection of public school for early education by Mother is not demonstrated
to be adverse to Child's interest so as to qualify as a change of condition.
Father's job, which he has held since 2007, i.e., before the marital
dissolution, may allow him more flexibility to facilitate visitation, but that
factor alone is insufficient to justify a change of custody under the
circumstances and it is not a change in the conditions post-dating the
Decree.
¶26 Lastly, Father raises an issue regarding alleged "violence" by Mother
towards KV, presumably occurring while the parties were married. The trial court
stopped the line of inquiry and refused to allow exploration of facts predating
the 2008 marital dissolution. As to "Rulings on Evidence," the Legislature has
provided, in 12 O.S.2011 § 2104
that:
A. Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of a party is affected,
and:
* * * * *
2. If the ruling is one excluding evidence, the substance of the evidence
was made known to the judge by offer or was apparent from the context within
which questions were asked.
Father did not make an offer of proof regarding excluded evidence of such
behavior by Mother nor did he attempt to elicit any evidence of more recent
events after the period excluded. We will not address an issue not properly
preserved. See Irwin v. Irwin, 1966 OK 146, 416 P.2d 853.
CONCLUSION
¶27 Father has not presented clear and convincing evidence of a change of
condition such that the order of the trial court is contrary to the weight of
the evidence and results in an abuse of discretion. The order is
AFFIRMED.
JOPLIN, P.J., and BUETTNER, J., concur.
