Tuesday, December 12, 2006

FLANDERMEYER v. BONNER, 2006 OK 87, ___ P.3d ___

Flandermeyer v. Bonner, 2006 OK 87

DICTA: Segmented Trial Settings may create Due Process problems.

"¶0 The Real Party in Interest, Tracy Flandermeyer (wife) initiated divorce proceedings against the Petitioner, Douglas Flandermeyer (husband). The trial, which was anticipated to take a day, was instead held over the course of a year. At the last scheduled hearing, the husband moved for a mistrial and requested a new trial, insisting that the piecemeal hearing process violated his due process rights guaranteed by the Okla. Const. art 2, §7 and the right to a speedy and certain remedy provided by the Okla. Const. art 2, §6. The trial court denied the request and the husband filed an application for extraordinary relief with this Court. We determine that conducting a trial in a serial fashion implicates fundamental fairness, due process, and the right to a speedy and certain remedy. However, under the facts presented, because it appears that the delays were more attributable to the actions of the petitioner than those of the trial court, the application to assume original jurisdiction and the petition for writ of prohibition and/or mandamus is denied. "

BARTLETT v. BARTLETT, 2006 OK CIV APP 112, ___ P.3d ___

Bartlett v. Bartlett, 2006 OK CIV APP 112

"¶1 Defendant/Appellant S. Bartlett (Wife) appeals from the Decree of Divorce as well as other court orders in this dissolution proceeding filed by Plaintiff/Appellee D. Bartlett (Husband). We hold that the trial court erred in finding that Husband rebutted the presumption of a gift which arose when Husband placed the marital residence and six other properties in joint tenancy with Wife; we therefore reverse that part of the Decree. As to Wife's remaining claims, we find the trial court did not abuse its discretion and the relevant provisions in the Decree are not against the clear weight of the evidence. We therefore affirm the Decree in all respects except the finding that Husband had rebutted the presumption of a gift as to certain properties. We remand for determination whether the properties, which became marital property when Husband conveyed them to joint tenancy with Wife, remained marital property or whether the parties converted those marital assets to separate property when they conveyed them to Husband's and Wife's revocable trusts. "

Wednesday, August 03, 2005

COBRA: Interim Protective Order is not a Qualifying Event

Zeda Simpson v. T.D. Williamson Inc.,--- F.3d ----, 2005 WL 1607938, C.A.10 (Okla.),2005.

Issue: The issue in this case is whether an Oklahoma divorce court’s interlocutory protective orders requiring a husband, a “covered employee,” to stay away from his wife, a “qualified beneficiary,” pending their divorce qualified as a “legal separation,” thereby triggering COBRA’s notice requirement and the wife’s corresponding obligation to pay premiums in exchange for continued coverage.

RULE: The Tenth Circuit Court of Appeals held: "We conclude a “legal separation,” and thus a “qualifying event,” occurs within the meaning of COBRA §§ 1161(a) and 1163(3) only upon entry of a final court decree adjudicating the parties legal rights and obligations but preserving the marriage bond."

Facts: "Plaintiff filed for divorce in July 2000. Over the course of that summer, the divorce court entered three interlocutory protective orders requiring Plaintiff’s husband to stay away from her and the marital residence. Prior to entry of a final divorce decree, Plaintiff sent a letter
to TDW. Plaintiff requested that TDW reveal no information to her “estranged husband” about medical services she received. TDW concluded a “legal separation” had occurred based on plaintiff’s letter and the divorce court’s interlocutory orders. TDW determined the parties’ 'legal separation' was a 'qualifying event' under COBRA." ---- No premium payments were made by Plaintiff or her husband. TDW found there to exist a qualifying event and terminated Plaintiff's coverage. After the Divorce Decree was subsequently entered, Plaintiff sought COBRA coverage from TDW, which was denied based on prior termination. and reinstatement was denied.

Read the Decision.

Friday, April 08, 2005

Jurisdiction: Non-Resident Parties may not confer jurisdiction on Oklahoma Court to Modify Decree.

KNOWLTON v. KNOWLTON, 100379, 2005 OK CIV APP 22, ___ P.3d ___, Decided 03/04/2005, Mandate 04/01/2005

The parties were divorced in Oklahoma in 1998 at which time custody and support issues were decided. All parties including the children moved to other states leaving no party or child in Oklahoma. In 2002, ex-wife sought to modify the child support order in Tulsa, Oklahoma in the original decree. The trial court dismissed the motion on lack of jurisdiction pursuant to the Oklahoma Uniform Interstate Family Support Act, 43 O.S. 2001 §601-100 et seq., The Court of Appeals affirmed the trial court's decision

The ex-wife's argument that the parties consented to the trial court's jurisdiction was rejected. The appellate court held that 43 O.S. §205(A)(1) means that jurisdiction is lost if all parties have permanently moved from the state issuing the original order and that 43 O.S. §601-205(A)(2) does not apply unless one of the parties continues to reside in the issuing state. Once jurisdiction is lost, "parties may not confer subject matter jurisdiction by consent. Barrett v. Barrett, 1994 OK 92,

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Monday, March 28, 2005

New Oklahoma Uniform Jury Instructions for Juvenile Cases.


The long awaited Uniform Jury Instructions for Juvenile Cases have been released and are now available online through the Oklahoma Supreme Court Network website.

"[E]ffective July 1, 2005, all trial courts in Oklahoma shall use the instructions contained within the Oklahoma Uniform Jury Instructions for Juvenile Cases if the court determines that the subject of the instructions would be appropriate in the particular matter on trial and unless the trial court determines that such recommended instruction does not accurately state the law"

Read Release

Thursday, March 10, 2005

Parental Liability - Non-Custodial Parent may be held financially liable for the delinquent acts of a child.

IN THE MATTER OF J.L.M., 100111, 2005 OK 15, ___ P.3d ___, Decided 03/08/2005

In a yet to be released for publication decision, the Oklahoma Supreme Court held that a non-custodial parent may be held financially liable for restitution for the delinquent acts of a child.

The minor child in question broke into a school and vandalized it to the tune of $11,076.00. The child was determined to be a delinquent and both parents were ordered to pay $2,500.00 in restitution pursuant to 10 O.S.2001 §7303-5.3 (A)(8)(c). The child had not lived with his father in almost 14 years and had only seen his father, the non-custodial parent, 4 times in the two years prior to his delinquent act.

The Court found the statute to be ambiguous and, using the rules of statutory construction, determined that restitution could be ordered not only against the custodial parent, but against both parents in an amount up to $2,500.00.

Read the case.

Tuesday, March 01, 2005

Paternity: Challenge based upon Fraud must be brought within two (2) years or it is barred.

HILL v. BLEVINS, 100504, 2005 OK 11, ___ P.3d ___, Decided 03/01/2005

In a yet to be released for publication decision, the Oklahoma Supreme Court held that a paternity claim, based upon an allegedly fraudulent Affidavit acknowledging Paternity, must be brought within two (2) years of actual or constructive notice of the fraud.

Hill and Blevins lived together at the time a child was conceived. They broke up prior to the birth of the child. The child was thereafter born on September 23, 1997. While Hill was incarcerated, Blevins and another man signed an Affidavit Acknowledging Paternity, and on October 17, 1997 a birth certificate was issued. In July, 2003 Hill filed lawsuits alleging paternity and asking the District Court of Kay County to vacate the Affidavit Acknowledging Paternity on the basis of fraud.

The Court reasoning held that: "A statement acknowledging paternity has the same legal effect as an order of paternity entered in a court of administrative proceeding. 10 O.S. 2004 § 70(B)(1)" As such, the "district court has the power to vacate such an order for fraud practiced by the successful party. 12 O.S. 2001 § 1031(4)." Hill, as a putative father, has "an interest entitled to legal protection that is impaired by the" order, and therefore has standing to move for the vacation of that order. Where "the complaining party", i.e. Hill, "alleges that an order has been obtained by fraud, proceedings to vacate the order must be commenced within two years after the order was made." Notice or awareness of the fraud, need not be actual notice but may be constructive notice from public records.

Hill's lawsuit should have been brought within two years after the birth certificate was issued, i.e. by October 17, 1999. Instead, he brought it six years later and was barred by the statute of limitations.

Read the case.

Friday, February 11, 2005

Taxes: Free Tax Software, including TurboTax, offered by the IRS.

If you are having to do your own taxes now, and do not have your own accountant or your own tax software, the IRS is offering free tax preparation software including the leading name brands.

In an effort to promote efiling, the IRS offers free tax software from leading commercial software companies such as TurboTax and H&R Block. The list of available online software may be found on the IRS website. Only federal taxes are covered. You would still have to do your own state taxes or purchase a state tax module from one of the listed vendors.

You can't beat the price on this offer.

See Tax Software List.

Thursday, February 10, 2005

Jurisdiction: Juvenile Court preempts original Custody Determining Court

STATE ex rel. DEPT. OF HUMAN SERVICES v. CABE, 100333, 2005 OK CIV APP 8, ___ P.3d ___, Decided 01/04/2005

A paternity action was originally brought in Beckham County, in which paternity was determined, custody given to mother and visitation given to the father. Both mother and father subsequently moved to Oklahoma County.

About three years later, the father filed a complaint with DHS alleging child abuse based upon inappropriate sexual behavior of his son brought on by visits in the presence of an uncle. A deprived petition was filed in Oklahoma County. The father stipulated to the provisions of the deprived petition.

Father then filed a Motion to Modify Custody in Beckham County which was granted. The Court of Appeals reversed the decision, holding that the court's superintending authority rested with the district court where the deprivation action is pending, i.e. the Oklahoma County District Court.

The Court of Appeals specifically held that "[W]here DHS has intervened and taken custody and initiated a deprived child proceeding ... then DHS has the first instance authority and duty to provide for the child, subject to review and approval by the district court where such proceeding is pending, and such district court has the exclusive authority to review and approve DHS's acts pursuant to that agency's authority and duty under the Children's Code." 10 O.S. Supp. §7003-7.1(C)

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Wednesday, February 09, 2005

Shared Parenting: Joint Custody does not include Shared Parenting for purposes of computing Child Support.

WILLIAMSON v. WILLIAMSON, 98234, 2005 OK 6, ___ P.3d ___, Decided 02/08/2005

In a yet to be released for publication opinion, the Supreme Court affirmed the trial court's refusal to modify a child support order by imposing shared parenting in a prior joint custody decree.

Joint Custody and Shared Parenting are not synonymous, as clarified by the Supreme Court:

" 'Joint custody' and 'shared parenting' are two different
terms. 'Joint custody' refers to the custodial arrangement
between the parents, whereas 'shared parenting' refers to
a mathematical calculation of child support. "
[ fn. 3 ]

The Shared Parenting child support adjustment occurs in only two situations, to-wit: where shared parenting time has been (1) ordered by a district court, or (2) agreed to by the parents. 43 O.S. §118(A)(10)(a). It is not mandated by statute.

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Thursday, February 03, 2005

Attorney Fees: A prevailing parent, demonstrating good cause for withholding court-ordered visitation, is entitled to appeal-related attorney fees.

KING v. KING, 99248, 2005 OK 4, ___ P.3d ___, Decided 02/01/2005

In a yet to be released opinion, the Oklahoma Supreme Court, in a case of first impression, held that "a prevailing parent, demonstrating good cause for withholding court-ordered visitation, is entitled to appeal-related attorney fees pursuant to 43 O.S. §112(D)(2)."

The custodial mother, upon hearing her son accuse his uncle of inappropriate sexual contact during a time when the boy was visiting his father, reported the incident to the Kansas police and to a child counselor. The counselor was going to turn the case over to the Kansas "DHS" and threatened to file a child in need of care petition if mother did not stop visitation. Mother stopped visitation. The father filed a Motion to Modify which the trial court granted. On appeal, the trial court was reversed. The Supreme Court granted certiorari to address the attorney fee issue.

The Supreme Court held that the mother demonstrated good cause for withholding visitation and as such, upon the trial court reversal, was the prevailing party, and therefore was entitled to an award of attorney fees on appeal.

Read Case.

Thursday, January 13, 2005

Unvested military retirement is subject to -- and capable of -- division by the Court as marital property.

THOMPSON v. THOMPSON, 98856, 2005 OK CIV APP 2, ___ P.3d ___, Decided 12/17/2004, Mandate 01/12/2005

Unvested military retirement pay may still be divided in a divorce action by Oklahoma Courts as marital property despite the seeming effect of the ten-year limiting language contained in 10 U.S.C.A. §1408 . The Court of Appeals reversed the trial court's refusal to divide the military retirement and held that " the ten-year rule relied on by the trial court only limits the availability of direct payments from the military, and state law governs the issue of whether military retirement benefits are divisible. "

The Court of Appeals reemphasized that "Oklahoma law clearly provides that a military retirement may be jointly acquired property that should be equitably divided between the parties. Rookard v. Rookard, 1987 OK 87, ¶4, 743 P.2d 1083, 1083 (reversing for trial court to consider military pension in property division and alimony award); Stokes, ¶11, 738 P.2d at 1348 (stating military retirement may be divisible as joint property);
Pullium v. Pullium, 1990 OK 71, ¶8, 796 P.2d 623, 624-25 (noting both private and military pensions should be included as marital property if jointly acquired during marriage). Thus, the trial court should have determined what portion of Husband's military retirement was jointly acquired during the marriage." Whether the military retirement is vested or not is not significant. Carpenter v. Carpenter , 1983 OK 2, ¶23, 657 P.2d 646, 651 .

Addressing the contention that the unvested military retirement was not susceptible to valuation, the Court of Appeals pointed out that "The Oklahoma Supreme Court has also discussed how retirement benefits should be divided. Pullium, ¶13, 796 P.2d at 624-25. One option is the "present value method," where the entire pension is awarded to the employee, and the non-employee receives other property or money as an immediate offset. Id. at ¶14, 796 P.2d at 625. A second option is the "deferred distribution method," where the court determines the percentage of the future benefits that are attributable to the marriage, and the non-employee receives an equitable share of that percentage of benefits when the employee becomes eligible. Id. at ¶15, 796 P.2d at 626. The present value method is preferred when the pension valuation is not unduly speculative and sufficient assets are available to offset without causing an undue hardship to the employee. Id. at ¶17, 796 P.2d at 626. However, if either of these impediments exists, the court should distribute the assets according to the deferred distribution approach and award each spouse an appropriate percentage of the pension. Id. Here, the deferred distribution method is preferable to equitably divide this potentially valuable benefit, because the present value of Husband's military retirement is speculative. We thus reverse and remand for the trial court to determine the percentage of the military retirement that was jointly acquired during the marriage, and award Wife an equitable share of that retirement. "

Read Case.

Oklahoma's Parenting Coordinator Act found to be Constitutional

BARNES v. BARNES, 98090, 2005 OK 1, ___ P.3d ___, Decided 01/11/2005

In a yet to be released for publication opinion, the Oklahoma Supreme Court found that the Parenting Coordinator Act is not unconstitutional on procedural or substantive due process grounds. The Court found that the State has a legitimate interest in recognizing the harmful impact of divorce on children and attempting to minimize the involvement of minor children in the parental conflict. The Court found that the taking of jurisdiction over children of divorcing parents is a bona fide classification and is not arbitrary and capricious.. The Court further found that the statute bears a reasonable relationship to a legitimate state interest sought to be protected. Because of the limitations placed upon the Parenting Coordinator by the statute and by the trial court, the inconvenience to the parent is balanced against the societal interest to protect children of divorcing parents by the safeguards of the act.

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Standard Visitation Guidelines & Forms released by AOC

The Administrative Office of the Courts, in compliance with 43 O.S. §111.1A, has released its Advisory Guidelines - Standard Visitation Schedule with Forms a pdf version of which is available on the Families in Transition Website as well as on the AOC Forms Site.
These guidelines and standard forms are not mandatory but may be used by the Courts in structuring minimum visitation orders.

Alimony: Debts from Wife's criminal activities are not marital debts. Court does not have to consider them in awarding alimony.

THOMPSON v. THOMPSON, 98856, 2005 OK CIV APP 2, ___ P.3d ___, Decided 12/17/2004, Mandate 01/12/2005

Wife engaged in criminal conduct during the marriage involving embezzlement for which she was convicted and required to make restitution. Husband was unaware of Wife's criminal activity. Wife's restitution debt was $400 per month for 24 months.

In her subsequent divorce action, when seeking alimony based upon a needs-based argument, Wife included the $400 in her monthly budget, claiming it to be a marital debt. The trial court "refused to require Husband to pay Wife's restitution debt as support alimony."

The Court of Appeals affirmed the Trial Court finding that debts for criminal activities are not marital debts. The Trial Court, in an equitable proceeding, "was not required to transfer the burden of Wife's criminal liability to the innocent spouse".

In establishing need, the wife's monthly expenses should not include the restitution debt - even though she will have to pay that debt to avoid prison.

Read Case.

Wednesday, January 12, 2005

Victim of unadjudicated statutory rape may be held liable for child support.

IN THE MATTER OF THE PATERNITY OF K.B., 99857, 2004 OK CIV APP 97, ___ P.3d ___, Decided 11/09/2004, Mandate 12/10/2004

An underage boy and an adult woman are the biological parents of K.B., a minor child, born on or about December 20, 1988. Because the father was a fifteen-year-old minor and the mother was a nineteen-year-old adult at the time K.B. was conceived, the minor father technically was the victim of an uncharged act of criminal sexual conduct, despite the consensual nature of the parties' relationship. The Court of Appeals affirmed the trial court's holding that the legal status of the father at the time of conception was immaterial to an adjudication of child support and granting the mother's counterclaim for current and past-due child support.

Read Case.

Attorney Fee Award Standard: Failure to Settle not a Valid Factor

Shirley v. Shirley, 2004 OK CIV APP 100, ___ P.3d ___, Decided 09/17/2004, Mandate 12/21/2004

The Court of Appeals held "that the failure to settle an issue in a divorce case is an inappropriate factor in considering the equities of awarding attorneys fees and costs. Because it appears the trial court used the award in this case as a penalty for failing to settle, we will modify the award by reducing it to $10,000. "

Read Case.

Monday, January 10, 2005

Free Adobe Reader 7.0 is now available for downloading & installation

For those of you who use or want to use the fill-in-the-blank forms on FamiliesInTransition.com, Adobe has released their most recent version of Adobe Reader 7.0 . This is a free program and will be necessary to read the more recent pdf files on this and other websites.

Click here and then follow the site instructions to download the Adobe Reader 7.0

Monday, January 03, 2005

FamiliesInTransition.com offers new sevice

The FamiliesInTransition.com website is pleased to provide a new service to the community. Notice of new cases relating to family law will be provided as well as information of interest to those involved with the Family Relations Court.