This is a slide show I prepared for a continuing education course for the Oklahoma Bar Association, December 2011

1. December 9, 2011
David A. Tracy
Naylor, Williams & Tracy, Inc
918-582-8000
david.tracy@nwtlaw.com text “tracy” to 99699
Follow David on Twitter @tulsafamilylaw

2. FEDERAL
DEVELOPMENTS

3.  Father found guilty of contempt, sentenced to
12 months with $6,000.00 purge fee
 S.C. Supreme Ct. says no due process
violation
 U.S. Supreme Ct. sets new standards for due
process in civil contempt proceedings

4. CHILD CUSTODY AND
VISITATION

5.  Deployment does not alone meet Gibbons test
- 43 O.S. 112.7
 Court may only enter temporary orders
during deployment.
 UCCJEA governs jurisdiction to enter order
 Court may designate a family member or
another with a “close and substantial
relationship” to child to use deployed
parent’s visitation.

6.  Interviewing a child does not diminish the
discretion of the Court in determining best
interest.
 Court is not bound by child’s choice – shall
consider all factors in determining custody or
visitation.

7.  Joint custody in decree. Mom wants to
terminate 9 months later
 Trial court terminates, awards custody to
Mom.
 Dad appeals, says kids want joint custody.
 Held – regardless of child preference, joint
custody not proper where parents are unable to
cooperate.
 After terminating joint custody, child’s
preference would be a relevant factor.

8.  Joint custody, primary to Mom.
 Mom moves to relocate to NY, both parents file
to terminate joint custody.
 Trial court allows mom to move with child,
maintains joint custody.
 Appellate court says trial court can combine
relocation and motion to terminate. Cf, Moore
and Atkinson
 Held – relocation affirmed, joint custody
terminated.

9.  Decree entered, Parenting Coordinator
appointed.
 Parties continue to work with PC after 1-year
appointment expires.
 Court reappoints – PC recommends custody
change. Trial court adopts.
 Held – trial court could reappoint PC, but PC
could not affect custody order. Custody
change reversed.

10.  Trial court grants child’s psychologist
discretion to set and coordinate visitation.
 Visitation is for a court to decide or the parties
to agree, not for a third party to determine.

11.  Default is an inappropriate sanction for
determination of joint child custody.
 Dad’s lawyer showed up for pretrial unprepared.
Rule 5j sanction, default judgment, granted mom’s
motion. Sole custody to Mom. Defaulted Dad on
motion to modify child support. Recalculated
including 800 per month in money Dad saved by
living with his mother.
 Rules for district courts were not intended to
prevent presentation of evidence in a child custody
case. Distinguishes from other civil cases.

12.  Mom gets custody, dad gets visitation; never really
exercises. His time is exercised by paternal
grandparents.
 Dispute between paternal grandparents and mother
over activities. Mom says she has to be with child
when grandparents visit. Grandparents file motion in
divorce case to award them the visitation that their son
had been exercising. Dad okay with this. Citing
Harkness and Sicking. Trial court says okay. Court of
appeals affirms.
 Supreme Court - Despite how grandparents
characterize, this is between mom and grandparents.
In order for grandparents to receive visitation, they
must qualify under grandparent visitation statute.
Not a best interest test. Three part test. Reversed

13.  After Dad died, grandma visited kids.
Relationship falters. Grandma files for
visitation. Mom moves to Oregon. UCCJEA -
Oklahoma did not lose jurisdiction, attaches at
beginning of case.
 No finding that parent is unfit or unsuitable, or
that there would be harm to the child if
visitation were not ordered.
 Grandparent visitation affirmed. Court of Civil
Appeals did not examine and reweigh the
evidence for abuse of discretion.

14. CHILD SUPPORT AND
PARENTAGE

15.  $75,000.00 arrears from Texas, collection effort
in Oklahoma.
 Judgment time-barred in TX, not in OK
 Validity of judgment is to be measured by the
law in force when rendered.
 Pre-UIFSA cases suggest time bar in TX
precludes OK enforcement.
 UIFSA - Longer of two statutes of limitations
determines collectability. 43 O.S. 601-604

16.  Dad laid off. Went to school.
 Court imputed income based on prior job.
 Reversed to impute only that amount of
income that dad could actually make.

17.  Dad says he made 25k a year. Dad invokes 5th
amendment privilege when questioned about tax
returns. Mom appeals income determination.
 Mom says invoking privilege in civil case creates
negative inference, so income should have been
higher.
 Appellate court says no abuse of discretion. Mom
did not introduce any evidence that Dad actually
had more income. Any evidence of more income
or lifestyle inconsistent with stated income might
have made case.
 Judgment for arrears reversed.

18.  Daughter anorexic. Went to treatment. Went
back to high school, still under 20.
 Mom wanted child support for time daughter
was in treatment but not in high school.
 Held - wording of statute does not allow for
recovery. However, child support
automatically resumed when child reenrolled

19.  Final order did not preserve claim regarding
amounts due under temporary order.
 Rule is t-o merged, but statute allows collection
of temporary support until paid. See 43 O.S.
110(c). NO one filed contempt citation to
collect amounts under t-o.
 Court says DHS is half right. Support under t-
o became judgment when past due. Contempt
as a remedy not available because no action
filed prior to final decree.

20.  Child qualifies for SSI at age 18. Dad moves to
terminate support. Child still in high school.
 Motion to terminate at age 20. Mom counters
with 112.1A motion. Dad claims issue
preclusion, trial court agrees.
 Held – error to terminate support for adult
child without hearing on claim for eligibility
based on disability.

21.  One child born during marriage. Decree says no
kids. Dad had been paying support. Dad had
been seeing kid. Mom cuts him off.
 Dad files for declaratory judgment. Mom claims
collateral estoppel and fact that dad is not bio dad.
 Decree entered prior to UPA. Our UPA claims
retroactive application. Court applied pre-UPA
law to case, so no retroactive application.
 Finding of no children is different from finding
there are children. It is not res judicata. Accepting
support for 7 years and allowing visitation is
estoppel to Mom. (Contrast Barber which says
estoppel has no place in custody law)

22. PROPERTY DIVISION

23.  60k down (separate property), balance of 600k
financed. At time of divorce, owed 141K. Loan
paid from retained earnings of business.
 Wife argues amount of reduced debt is marital.
 What’s missing is what is securing the note.
 Using marital funds to pay down mortgage creates
marital interest in property. Different that someone
coming into marriage with credit card debt.
 Using marital funds to pay off premarital debt does not
create an offset. Paying off debt does mean you acquire
anything. By analogy, if loan secured by stock, then
creating marital interest. If not secured, more like credit
card debt.

24.  1999 decree award husband military pension
“subject to any portion wife may be entitled to
pursuant to military law, regulations, customs
or stipulations.”
 2009 application for nunc pro tunc order to
have decree recite language necessary to divide
pension.
 Husband says not nunc pro tunc, but motion to
modify.
 Trial court grants wife’s motion - Affirmed

25.  H claims both cars as separate property
 W admits one car owned before marriage, but
both cars titled in joint names.
 Trial court – produce titles or both cars will be
considered marital. H fails to produce
 Held - affirmed

26. SUPPORT ALIMIONY

27.  22 year marriage, 3 kids. He makes over 70k.
 She makes 22k, is at earning capacity.
 Trial court awarded 250 a month for 3 years.
Court of appeals affirmed.
 Supreme court gave her 1500 a month for 36
months. Mom had asked for 2200 month for 5
years.

28. PROCEDURE

29.  Must exchange within 30 days.
 2 years federal and state income tax returns.
 2 months pay stubs.
 6 months bank statements.
 Cost of individual and family health coverage.
 Employment related child care costs.
 Documentation of all debt terms and balance
due.

31.  H appeals contempt conviction from failure to
pay under temporary order.
 No citation issued – Held – delivery of
application adequate.
 Contempt application filed before written
order – Held – H in court when order entered,
so he had notice.
 Conflicting evidence of ability to pay – finding
of guilt affirmed.

32.  Fees awarded for post-decree motion defense
in parentage case.
 43 O.S. §110(E) did not apply to parentage
cases.
 Alternative statutes applied – no transcript, so
error not presumed.

33.  Trial court takes case on remand under
advisement
 Court recuses from protective order case,
disagreed with felony case dismissal for W
when judge was asst. DA.
 Court declined to recuse in domestic case.
 Held – trial judge must recuse and new judge
must hear remand.

34.  Judge A enters TRO in temporary order
 Judge B enters EPO in protective order
proceeding
 Divorce decree from Judge A provides for
permanent protective order for three years
 Held – abuse of discretion to enter permanent
protective order in domestic case.

35. December 9, 2011
David A. Tracy
Naylor, Williams & Tracy, Inc
918-582-8000
david.tracy@nwtlaw.com text “tracy” to 99699
Follow David on Twitter @tulsafamilylaw