recent developments 2007

• 1. Recent Developments In Oklahoma Family Law - 2007December 7, 2007 Materials Julie S. RiversSlides - David A. Tracy Family Law Solutions P.C.Naylor, Williams & Tracy, Inc 6440 Avondale Dr., Ste. 2081701 S. Boston Ave. Oklahoma City, Oklahoma73118Tulsa, OK74119 405-843-5581918-582-8000 [email_address]

2.

• PROPERTY DIVISON

3. 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

4. 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

5. 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

6.

• ALIMONY

7. 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

8. Burrell v. Burrell

• Statutes concerning support alimony apply unless specifically waived in consent decree.

• Consistent withDickason v. Dickason

• DistinguishesStuart v. Stuart

• Does not mentionWhitehead v. Whitehead

• No subject matter jurisdiction UIFSA 211

9.

• COSTS AND EXPENSES

10. 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

• Fathers fee request denied

• Affirmed judicial balancing of equities

11.

• CHILD CUSTODY

• VISITATION

• UCCJEA

12. 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 dads move is in good faith, but dad failed to show move in childrens best interests

• Reversed for improperly applying stage 2 burden on father

13. 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.

14. Atkinson v. Atkinson

• Trial court grants fathers 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.

15. 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

16. 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

17.

• ADOPTION - TPR

18. 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

19. 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

20. 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.

21.

• CHILD SUPPORT

• UIFSA

22. 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

• Fathers 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

23. 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

24. Been v. Been

• 2007 OK CIV APP 31, 158 P.2d 491

• Issues:Husbands 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.

25.

• DISSOLUTION PROCEDURE

26. 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

27. 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

• • Husbands claimed negligence of prior counsel imputed to husband

28.

• NEW LEGISLATION

29. 10 O.S. 5

• Grandparent visitation revisited