Opinion
Case Number: 110078
03-14-2014
IN RE THE MARRIAGE OF AMANDA MARIA VARBEL, NOW PATTISON, AND BRICE DUANE VARBEL: AMANDA MARIA VARBEL, NOW PATTISON, Petitioner/Appellee, v. BRICE DUANE VARBEL, Respondent/Appellant.
Jack De McCarty, MCCARTY & RIGDON, Newkirk, Oklahoma, for Petitioner/Appellee, Jarrod Heath Stevenson, STEVENSON LAW FIRM, P.L.L.C., Oklahoma City, Oklahoma, for Respondent/Appellant.
APPEAL FROM THE DISTRICT COURT OF KAY COUNTY, OKLAHOMA
HONORABLE W. LEE STOUT, TRIAL JUDGE
AFFIRMED
Jack De McCarty, MCCARTY & RIGDON, Newkirk, Oklahoma, for Petitioner/Appellee,
Jarrod Heath Stevenson, STEVENSON LAW FIRM, P.L.L.C., Oklahoma City, Oklahoma, for Respondent/Appellant.
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. 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.
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. InGibbons v. Gibbons, , 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, , 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, , 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."
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: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.
* * * * *
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.
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.