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

david.tracy@nwtlaw.com

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

david.tracy@nwtlaw.com