recent developments 2007
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Recent Developments in Oklahoma Family Law in 2007TRANSCRIPT
Recent Developments In Oklahoma Family Law -
2007
December 7, 2007Materials – Julie S. Rivers Slides - David A. TracyFamily Law Solutions P.C. Naylor, Williams & Tracy, Inc6440 Avondale Dr., Ste. 208 1701 S. Boston Ave.Oklahoma City, Oklahoma 73118 Tulsa, OK 74119405-843-5581 918-582-8000
PROPERTY DIVISON
Duty v. Duty
2007 OK CIV APP 43, 162 P.3d 939 Stock options awarded during marriage Vested after divorce filed Wife – unvested options granted during
marriage are marital property Husband – must remain with company for
option to vest – future income (Ettinger) Trial court grants Wife one third of net
interest in options (market – strike price) Affirmed
In Re Marriage of Woodard
2007 OK CIV APP 61, 164 P.3d 1144 February 1997 – 20 years service as
firefighter – Option B plan enrollment April 1, 2005 retirement date under Option
B December 30, 2004 – heart attack Disability pension awarded effective April
1, 2005 Trial court found pension benefit marital Affirmed
Military Retirement
In re Marriage of Guy, 2007 OK CIV APP 86, ___ P.3d ___ Trial court awards substitute award for VA benefit Order to pay SBP premium Reversed
Hayes v. Hayes, 2007 OK CIV APP 58, 164 P.3d 1128 Retirement benefits converted post decree to
disability benefit benefit could be satisfied via direct payment by
Husband
ALIMONY
Burrell v. Burrell
2007 OK 47 1997 divorce in Georgia - monthly alimony for life,
Georgia law controls He moves to Michigan, she to Oklahoma,
remarries He files here under UEFJA – moves to terminate She files for declaratory judgment Trial court applies Oklahoma law, finds husband
waived right to terminate Supreme Court reverses – no express waiver of
statutory termination of alimony on remarriage
Burrell v. Burrell
Statutes concerning support alimony apply unless specifically waived in consent decree.
Consistent with Dickason v. Dickason Distinguishes Stuart v. Stuart Does not mention Whitehead v. Whitehead No subject matter jurisdiction – UIFSA §211
COSTS AND EXPENSES
Kerby v. Kerby
2007 OK 35, 164 P.3d 1049 (Kerby III) Child support modification trial Trial court awards wife $57,673 in fees
$2,296.15 in trial costs, and $9,225.00 in expert witness fees for attorney fee hearing
Father’s fee request denied Affirmed – judicial balancing of equities
CHILD CUSTODY
VISITATION
UCCJEA
Mahmoodjanloo v. Mahmoodjanloo
2007 OK 32, 160 P.3d 951 Dad custodian – notice of move to New
York Mom files objection, request for temporary
custody Trial court – dad’s move is in good faith,
but dad failed to show move in children’s best interests
Reversed for improperly applying stage 2 burden on father
ATKINSON V. ATKINSON
2006 OK CIV APP 151, 149 P.3d 1085 2002 Decree, split custody of 2 children Mom suggests a move in 2005. Dad files
objection and motion to modify custody Mom files response, counterclaim & motion to
dismiss Mom gives written notice per 43 O.S. §112.3 Dad files another objection, mom files motion
to modify child support.
Atkinson v. Atkinson
Trial court grants father’s motion to modify custody, does not rule on relocation request.
On appeal Change in custody governed by 43 O.S. §112
(A)(3) & Gibbons v. Gibbons, 1968 OK 77. Trial court relied on relocation statute 43 O.S.
112.3 (I-J) instead of modification statute. Court should have determined merits of
relocation before deciding custody issue. Evidence did not support change of custody.
In Re J.J.
2007 OK CIV APP 72, 167 P.3d 980 Deprived action in Oklahoma Pending custody proceeding in North
Carolina Mom relocates to Oklahoma – summer visit Both parents in violation of N.C. order Trial court says emergency juris. Appropriate
under UCCJEA, deprived declaration Remand with instructions to set time for Dad
to file in N.C., and to contact N.C. court
In Re Marriage Norrod
2007 OK CIV APP 65, 165 P.3d 366 Mom and child live with grandparents from
birth – Dad in military Dissolution pending when mom in
accident – comatose Dad has temp custody while mom
languishes Grandparents intervene – Mom passes Trial court awards custody to Dad over
G.P. - Affirmed
- ADOPTION TPR
In Re Adoption of LDS
2006 OK 80, 155 P.3d 1 Foster parent adoption – AWOC Child adjudicated deprived No child support ordered for 8 months – then
only from mom – no income assignment No TPR – AWOC application granted – child
support set for father Final adoption granted while appea pending Reversed – no wilful failure to pay – no
jurisdiction to grant final order while AWOC appeal pending
Cherokee Nation v. Nomura
2007 OK 40, 160 P.3d 967 Mom offers Indian child for adoption
through Florida agency No notice to tribe – Interstate Compact
administrator objects Tribe files for TRO - ICPC admin seeks
declaratory judgment Trial court says notice to tribe required to
allow removal of Indian child from Oklahoma for adoption - affirmed
ADOPTION OF R.L.A.
2006 OK CIV APP 138, 147 P.3d 306 Stepparent adoption – AWOC Dad eligible for Creek Nation enrollment Q: Does ICWA apply to adoption? Q: Burden of proof required for AWOC? Disposition – remand with instructions to
apply proper standard.
CHILD SUPPORT
UIFSA
Kerby v. Kerby (II)
2007 OK 35, 164 P.3d 1049 Kerby I – increase in income is material
change in circumstances – consider needs of children on remand
Father’s income is relevant, his lifestyle is not
Increase in support from $1,500 to $2,800 per month, 62K arrearage
Affirmed as to modification and date of effect
Decker v. Davis
2007 OK CIV APP 46, 162 P.3d 956 Colorado order for support – both parents
have since moved from Colorado Business-only use of vehicle is not
income for setting child support Gross income should include pretax
contributions to 401k plan Allocating dependency exemption
requires balancing of equities
Been v. Been
2007 OK CIV APP 31, 158 P.2d 491 Issues: Husband’s income, child support,
incremental increase in visitation Held
Trial court properly imputed minimum wage to father for calculating child support
Temporary order judgment could not be awarded due to inadequate record
Wife should not be required to deliver child mid-way for interstate visits – OK to increase visits at age 10
Property division judgment of $20,000 affirmed.
DISSOLUTIONPROCEDURE
Flandermeyer v. Bonner
2006 OK 87, 152 P.3d 195 First day of trial May 12, 2005. Two more days of trial over next year,
including two passes. 5-25-06, husband objects, claims due
process violation, court stays proceedings pending writ.
Original jurisdiction assumed, writ denied
Abrams v. Abrams
2007 OK IV APP 4, 153 P.2d 70 1996 divorce Modification order 09/11/02 2005 contempt against Father Father files motion to vacate 2002 order Held – trial court dismissal affirmed
Husband’s claimed negligence of prior counsel imputed to husband
NEWLEGISLATION
10 O.S. §5
Grandparent visitation revisited child would suffer harm or potential harm
without the granting of visitation rights to the grandparent
intact nuclear family has been disrupted preexisting relationship with the child
43 O.S. §112 (B)
No final order modifying custody for service members separated from their child due to military service
This is covered by federal law – see Servicemembers Civil Relief Act
Recent Developments In Oklahoma Family Law -
2007
December 7, 2005Materials – Julie S. Rivers Slides - David A. TracyFamily Law Solutions P.C. Naylor, Williams & Tracy, Inc6440 Avondale Dr., Ste. 208 1701 S. Boston Ave.Oklahoma City, Oklahoma 73118 Tulsa, OK 74119405-843-5581 918-582-8000