Oklahoma Family Law

MARRIAGE
a) Types of Marriage (knowing which type lets us identify our options to terminate it). 18 is age of
consent for marriage !an ha"e some court or guardian e#ceptions for 1$% some e#ceptions under that.
i) &alid ' true marriage
ii) &oid ' was ne"er a marriage (read page 18 note)
(1) (e)uires no formal action to terminate
(*) !an +e attacked at any time
(,) !an +e attacked +y anyone to whom the issue is rele"ant
(-) .o temporary alimony
(/) 0nnulment is a proclamation that no marriage e"er e#isted
($) 1ro+a+ly still want to get the 2udicial declaration +ecause of property issues
(3) 4tatutorily set forth
(a) Three circumstances we can ha"e a "oid marriage5
(i) 6igamy
(ii) 7ncest
(iii) 4ame 8ender
iii) &oida+le ' 4tarts out as what looks like a "alid marriage% +ut in some conditions it can +e "oided.
7f the impediment has +een remo"ed% it can ripen into a "alid marriage.
(1) &oida+le 9"ents5
(a) Fraud
(+) 6oth parties under age
(c) 7ncompetency
(d) :uress
(e) !oercion
(f) Marriage within $ months of di"orce
(*) Once impediment is remo"ed% it can no longer +e annulled
(,) (e)uires an affirmati"e step
(-) !annot +e attacked after death
(/) More limited as to who can attack ' +asically only the parties or their guardians can attack
($) !an ha"e temporary alimony during the pendency of a ruling
(3) 0nnulment will +e used when the marriage is "oida+le.
+) :i"orce "s. 0nnulment
i) :i"orce; recogni<es a marriage e#isted
(1) !an cause the split of property
ii) 0nnulment; retroacti"e
(1) 1opular for religious purposes
c) (estrictions on =ho !an Marry
i) The Traditional (estrictions
(1) 6igamy
(a) Whitney v. Whitney (1)
(i) = wants di"orce from >% > claims he is already married to another woman for years
no
(ii) 0 marriage "oid in its inception does not re)uire the sentence% decree or 2udgment of
any court to restore the parties to their original rights or to make marriage "oid. For
sake of good order of society ? peace of mind of all persons concerned% nullity of the
marriage should +e ascertained and declared +y the decree of a court of competent
2urisdiction.
(iii) &oid +ecause it is set forth in the statute.
(i").o alimony or property rights arise out of it +@c there was no legal M
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Oklahoma Family Law
(") .otes; plural marriages ? +igamy; illegal in all states
(*) 7ncest
(a) Catalano v. Catalano (11)
(i) Ancle and niece married in 7taly and mo"e to A4% = (niece) tried to get property after
> (uncle) died
(ii) generally a marriage "alid where the ceremony is performed is "alid e"erywhere% one
B where itCs in"alid is incestuous marriages +@t persons so closely related that their
marriage is against strong policy of the domicile though "alid where cele+rated.
1. 7ncest is "oid under the statute.
(,) 0ge ' &oida+le
(a) White v. McGee ()
(i) 7f married past the age of minority% it ripens into a "alid marriage.
(ii) 7f death comes +efore the impediment is remo"ed% it is no longer attacka+le.
(-) Mental !apacity ' &oida+le D1*8
(a) Houser v. Houser (18)
(i) !onsent in"ol"es a "oluntary agreement +y a person in the possession and e#ercise of
sufficient mental capacity to make an intelligent choice to do something proposed +y
another. 7t supposes5
1. 0 physical power to act
*. 0 moral power of acting% and
,. 0 serious% determined% and free use of the powers.
(ii) !onsent must +e free% natural% and communicated +y each other
(iii) :espite inconsistent case law% it is "oida+le. 7mpediment can +e remo"ed if they
impro"ed ? decided to stay in the marriage that had +een entered into when they were
incompetent.
(/) D1*,; 8etting Married w@i $ months after di"orce; "oida+le +@c unlike traditional +igamy%
ha"e a dissolution ? it can +e remo"ed E $ mo. period ? ripen into a "alid marriage.
($) 4ame 4e#
(a) D,.1 ' same se# marriage is not recogni<ed. Federal defense of marriage act ' do not ha"e
to recogni<e marriage if it is against the pu+lic policy of state.
(+) OC:arling ". OC:arling (,1)
(i) * women married in Toronto and moce to Tulsa and seek dissolution
d) Fraud ? the Marriage (elationship
i) Seirafi-Pour v. Bagherinassab (-1) ' green card fraud
(1) ruled fraud when 7ranian girl married 0merican man% ne"er engaged in se# and would stay at
her sisters
ii) Miller v. Miller (-3) = misrepresented pregnancy. !hild was not really >Cs and court granted
annulment +ased on egregious misrepresentation to >
e) !ommon Law Marriage
i) Estate of Phifer (/-)
(1) 6urden of proof ; spouse claiming !LM clear ? con"incing e"idence
(*) 1arty asserting !LM must pro"e the !LM elements5 (190!>)
(a) Permanent relationship
(+) E#clusi"e relationship
(c) *Actual ? mutual agmt +etween spouses to +e >?= (intent)
(i) intent is most important
(d) Coha+itation as man and wife
(i) May not +e needed if all others are well est
(e) *Hold themsel"es out pu+licly as >?=
(,) .ot all / are re)Cd
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Oklahoma Family Law
(-) 7solated instances are not sufficient to est a community;wide reputation that they were a
married couple.
(/) 4how e"idence of +oth sides and e#plain which side carries the greater weight.
ii) Standefer v. Standefer (//) ' > gets electrocuted and has * suits
(1) !t relied on !LM element of Factual agreement@intentG
iii) Stinchcomb ()
(1) = claims they had !LM +efore the prenuptial agreement% in order to gain widowCs damages in
death
(*) !t considered that upon hospitali<ation% F=G immediately withdrew H,I%III and +oat an
e#pensi"e fur coat
i") State of Smart v. Smart ($1)
(1) 0lthough !alifornia doesnCt recogni<e !LM% they respect other states that do
(*) 0lthough > ? = werenCt domiciled in OJ% they were !LM in OJ and would "isit and stay
for a few weeks K a time
f) Marriage 1resumptions
i) Parhill !rucing Co. v. "o# ($-)
(1) !eremonial marriage is a re+utta+le presumption
(a) 4trong presumption in fa"or of "alidity of ceremonial marriage
(+) 1erson attacking the marriage carries the +urden.
(*) .o !L di"orce ' +c the preceding !LM was still "alid% the ceremonial marriage here was not
"alid.
ii) $n the Matter of Estate of %llen (3I)(Ased theory of estoppel5 Fif you do not speak when you ought
to speak% you shall not speak when you want to speak.G
(1) did not ha"e legal di"orce% prior !L= was estopped from claiming she was "alid heir +c she
had married and di"orced another man in the interim% and had not claimed her marriage to +e
"alid until his death although she had 1, yrs to do so ' +ad character
iii) 7f spouse dies +efore di"orce is final% marriage is still "alid.
i") Lust +c people in !LM decide to go their separate ways ? act inconsistently w@ married people%
theyCre still in a "alid marriage ? until they are di"orced% any su+se)uent union is in"alid +c itCs
+igamous.
g) No such thing as CL divorce
h) OJ recogni<es the following presumptions5
i) Of ceremonial marriage upon proof of the ceremony
ii) 7n fa"or of the su+se)uent marriageCs "alidity ' assumes the spouse di"orces the pre"ious spouse
iii) Of marriage from coha+itation (inference if not a presumption)
DIVORCE
i) -, D1I1 pro"ides 1* grounds for di"orce in OJ.
i) Aandon!ent "or # $ear
ii) Adu%ter$
iii) 7mpotency
i") = K time of her marriage% was pregnant +y another man
") 9#treme cruelty
"i) Fraudulent contract
vii) Inco!&atii%it$ '!ost co!!on) ( no "au%t ground ( ct re"ers
viii) Haitua% drun)enness
i#) 8ross neglect of duty
#) 7mprisonment of the other party in state@fed penal institution under sentence for commission of a
felony K time petition is filed.
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Oklahoma Family Law
#i) 1rocurement of a final di"orce decree w@o this state +y > or = which does not in this state release
the other party from the o+ligations of the marriage.
#ii) 7nsanity
2) 8eneral !omments5
i) 7ncompati+ility is no;fault ground (makes it easier) OJ is no;fault state.
(1) donCt need any proof other than 1 party seeking di"orce +c they donCt want to +e married% thus
there is incompati+ility.
ii) OJ doesnCt look at fault in regard to di"ision of property ? alimony.
(1) Only if there is dissipation of assets inconsistent w@ marital use (using marital funds to pay for
hotel room for affair).
iii) .eed proof for any ground of di"orce other than incompati+ility% cannot 2ust stipulate. 7s more
costly% more cum+ersome and less 2udicially efficient.
i") !an counter file for di"orce. = could get di"orce granted on +asis of incompati+ility and > could
+e granted on +asis of adultery.
") !an do a petition for separate maintenance. 4ame grounds ? almost same relief. 4ome di"orces
are denied if woman is pregnant. Must ha"e a person in +eing +efore you can issue any court
orders% so cannot issue any orders for a +a+y not yet +orn.
(1) Thus% ha"e to come +ack ? do some things twice after +a+y is +orn.
(*) 4ome courts reluctant to grant.
(,) .ot denying di"orce% 2ust postpone until child is actually in e#istence.
(-) More common reason for denial of di"orce M 2urisdictional pro+lems (e.g. filed in the wrong
place)
"i) -, O.4. D 1I8 ' 9)ually =rong 1arties ' :i"orce 8ranted to 6oth 1arties ' 1owers of !ourt when
8ranting 0limony w@o :i"orce or (efusing. That parties appear to +e in e)ual wrong shall not +e
a +asis for refusing to grant a di"orce% +ut if a di"orce is granted in such circumstances% it shall +e
granted to +oth parties. 7n any such case or where the ct grants alimony w@o a di"orce or in any
case where a di"orce is refused% the ct may for good cause shown make such order as may +e
proper for the custody% maintenance and education of the children% and of the control and e)uita+le
di"ision and disposition of the property of the parties% or of either of them% as may +e proper%
e)uita+le and 2ust% ha"ing due regard to the time and manner of ac)uiring such property% whether
the title thereto +e in either or +oth of said parties.
"ii) :octrine of .ecessities ' (Smith v. Hernande& N$8;3IO) ' still e#ist
(1) Must Ftend to relie"e distress or promote comfort of the +ody or mindG
viii' Why see divorce based on adultery #hen you can do it #( incom)atibility*
+,' %id in gaining more -. )ro) or custody/ conscience or religious vie#s/ may be a condition on
)renu)/ #ant to hit them #( everything
+0' Should at least try and deter client from using adultery. but if they insist. can continue
re)resentation or sto) re)resenting
i1' "easons to re2ect a divorce 3 )regnancy
k) Fault :i"orce.
i) !igert v. !igert (81) =anted di"orce on grounds of adultery rather than incompati+ility. !t agreed
there was condonation of adultery +c P dropped her pre"ious di"orce proceeding and reconciled
w@ Q R resumed se#ual relations during reconciliation.
ii) !ondonement ' forgi"eness% w@ an implied condition that the in2ury shall not +e repeated% and that
the party shall +e treated w. con2ugal kindness
(1) 7s a defense to a ground (incompati+ility% adultery% etc)
(*) !ondonement is freely gi"en pardon or forgi"eness% carrying with it the implied conditions
that the errant spouse5
(i) .ot repeat the offense
(ii) Treat the other with con2ugal kindness
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Oklahoma Family Law
(iii) Maintain Fgood conductG in the future
(,) 7mplied condonement occurs when5 0ssuming marital relations ? treating each other w@
con2ugal kindness after condoning spouse learns of offense ? are no further offenses.
(-) 9#press5 !ondonation may +e predicated upon an e#press condition% in which case the
e#pressed condition must +e fulfilled.
(/) !ondonation is a defense to the assertion to any marital wrong as grounds for di"orce.
($) 9#ception to (e"i"al of the condoned acts5 where act relied on as constituting a +reach of
condition of condonation is due to fault or conni"ance of complaining party% the original
offense is not revived.
(3) (e"i"al can +e accomplished +y5 (marital wrong can +e re"i"ed)
(a) repeat of same offense
(+) +reach of e#press condition
(c) commission of another offense
(d) with misconduct that would not in itself +e sufficient to constitute a ground for di"orce.
(e) A "ai%ure to treat the condoning s&ouse *ith +con,uga% )indness- or to !aintain
+good conduct- *ou%d "a%% *.i one o" the %atter t*o categories.
(8) 1olicy ' defense of condonation; reconciliation will +e encouraged and allowing errant spouse
some protection under law when spouse honestly seeks ? is granted forgi"eness an
opportunity to reform furthers societyCs interest in continuation of marital relationships
iii) =hy argue adultery when it is harderS
(1) (eligious
(*) 0ward of more property (+ut not in OJ)
(,) 1rincipal of matter.
(-) &indicti"e
i") 0dultery is not in and of itself not used to determine custody.
l) F.o;FaultG :i"orce.
i) 4andervort v. 4andervort (1I*)
(1) :i"orce decree "acated due to fraud. > and = agreed to get di"orce@transfer her assets to him
to )ualify for social disa+ility@medicaid to pay her home care for her M4.
(*) held5 FThe parties here colluded to misrepresent incompati+ility as a ground for di"orce (when
they actually intended to continue coha+itating) and% in turn% used the sham di"orce to decei"e
pu+lic agencies concerning =Cs eligi+ility for pu+lic +enefits.G
(,) 0lso found fraud in that parties claimed to +e residents of OJ county when they werenCt and
filed in OJ county. Fact that =Cs 9ntry of 0ppearance agreed for ct to hear ? enter decree of
di"orce in her a+sence cannot cure fraud concerning residency.
(-) 7mproper 2urisdiction is ground for "acating di"orce.
(/) 4tate is a silent ,
rd
party in e"ery di"orce proceeding.
(a) To protect 4tateCs interest% a di"orce decree is properly "acated where there is conduct that
Famounts to a fraudTupon the state as represented +y ct in the administration of 2ustice.G
($) 7ncompati+ility must +e est +y proof% o+2ecti"e in its character% of causes to which marital
disharmony is attri+uted Nand cannot +eO +ottomed on a mere su+terfuge or after;thought
NwithoutO a su+stantial foundation.
(3) :issent5 Mutual fraud. They perpetrated it and +enefited from it. 4hould li"e w@ conse)uences
of their actions and not "acate di"orce
(8) Once di"orce is "acated ; marriage is "alid.
(U) 0d"antage to remarrying instead of "acating ; preser"e di"ision of marital property upon
di"orce
(1I) .o time constraints on time that passes after to di"orce to "acate if there is no inter"ening
marriage to another person.
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Oklahoma Family Law
ii) Ellam v. Ellam (1I$) 4eparation ' 1arties could not +e granted a di"orce on grounds of separation
+c they were not li"ing separate ? apart +c .L statute pro"ides not only must +e parties occupy
Fdifferent ha+itationsF +ut also must li"e Fseparate ? apart.G >eld themsel"es out as married and
continued li"ing li"es together% e"en though they did li"e under separate roofs. >ere% where he
went home e"ery day to do chores and "isit his dog% it did not )ualify.
(1) :ifferent states ha"e different time frames that you ha"e to li"e separate.
(a) OJ; wait UI days to get di"orce decree if you ha"e kids% there are those to e#tend to 1
yr or li"e separate and apart for one year +efore grant di"orce.
m) 4eparate Maintenance5 0d2udication of the rights +@t dparties while they are separated.
i) 7n a petition for 4M% same as petition for di"orce ' can use the same grounds.
ii) !an get same relief ' temp. alimony% child support% custody% property di"ision% who is going to
stay in the marital home.
iii) cannot get a di"orce% permanent alimony% and a name change.
(1) =hy5 religious +eliefs% detrimental to employment% psychological +enefit of not yet calling
it )uits% maintain health +enefits w@ regard to worker issue and health issues% 2urisdictional
re)uirement is less.
i") :onCt ha"e to ha"e +een li"ing in the state for $ months.
") =hen you file petition for 4M% other person can counter file for di"orce and di"orce may +e
granted.
"i) =hy do a separate maintenance agreementS
(1) .eed to keep 2oint +enefits. Lurisdictional re)Cts differ ' donCt ha"e to +e residence for $
months. (eligious reasons% may not want di"orce. Other person can counter file for
di"orce.
"ii) 7f there is a temporary automatic in2unction% is there any reason for a temporary orderS
(1) Ves% to deal w@ kid issues% alimony% immediate de+ts
n) :efenses to the grounds for di"orce.
i) !ondonation
ii) (ecrimination (+oth parties are guilty of misconduct)
iii) 1ro"ocation (complaining party has pro"oked errant party)
i") !onni"ance; one spouse ac)uiesced in marital misconduct ' canCt file for adultery if you solicited
a , way
") !ollusion (agreed to commission of offense)
o) 7n annulment can make same pro"isions for custody% child support and temp alimony% +ut not
permanent alimony
p) (elief5 same relief% +ut no di"orce% no name change% no permanent alimony. This will +e tested
onWWWWWW
)) - ways to change name in OJ5
i) Marriage%
ii) :i"orce%
iii) 0doption%
i") Through the name change act
r) 0utomatic Temporary 7n2unction ' protects status )uo ' know some of main things on this.
s) 1
st
in time to file ' doesnCt matter whose ser"ed first% county that is filed first has 2urisdiction
t) Multi;4tate :i"orce
i) Sherrer v. Sherrer (1-I) = goes to FL for "acation and later decides to stay and shack up w@
another guy. Files for di"orce in FL. = ? > make agreement and they get di"orce% and = married
other guy. Later goes +ack to Mass to tend to ill relati"e. 9#;> then raised suit saying di"orce in
FL was not "alid +c FL didnCt ha"e 2urisdiction. > should ha"e made special appearance to dispute
2urisdiction K that time% instead he su+mitted to the 2urisdiction of the ct and cannot now dispute
that 2urisdiction +c Full Faith ? !redit !lause
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Oklahoma Family Law
ii) 1olicy5 needs to +e an end to litigation
u) :i"orce 1rocedure.
i) D 1I* ' (esidency ' $ months
ii) D 1I,; &enue ' (esident of county ,I days +efore filing;petitioner no re)Ct for domicile of
respondent ' to pre"ent forum shopping
(1) 4eparate maintenance can +e +rought at any time (also called alimony w@o di"orce)
(*) (:) 7ncon"enient forum
iii) D 1I- ' 1ersonal Lurisdiction ' o"er someone who li"ed in marital state% e"en if no longer resident
of state.
i") D 1I/ ' 1etition ' 4ummons '
(1) Title F7n re the Marriage of XXXXXXXXand XXXXXXXXXXXXX.G
(*) The initial pleading in all proceeding under this title are denominated a petition
(,) 1erson filing petition M petitioner
(-) responsi"e pleading M response.
(/) person filing the responsi"e pleading M respondent.
($) Other pleadings M as pro"ided in (ules of !i" 1ro% e#cept as otherwise pro"ided in this
section.
(3) petition must +e "erified as true% +y the affida"it of the petitioner
(8) The summons may issue thereon% and shall +e ser"ed% or pu+lication made% as in other ci"il
cases.
(U) =here"er it occurs in this title or in any other title of the OJ 4tatutes or in any forms or ct
docs prepared pursuant to the pro"ision of the OJ 4tatutes% the term Fdi"orceG shall mean and
+e deemed to refer to a Fdissolution of marriageG unless the conte#t or su+2ect matter
otherwise re)s.
") D 1I$ 0nswer may allege !ause '
(1) .ew matters "erified +y 0ffida"it (now call F(esponse.G) 7f 2ust admit and deny then donCt
ha"e to attach "erification% +ut always safer to file "erification% 2ust in case.
"i) D 1I3.1 Time for Final Order =here Minor !hildren 7n"ol"ed ' =ai"er ' 9ducation 1rogram
(1) 9#ceptions.
(a) =hen minor children in"ol"ed% ha"e to wait UI days from the date of "i%ing date o" the
petition +efore issue of final order. UI days may +e wai"ed +y the court for good cause
shown and w@o o+2ection +y either party.
(+) The court may re)uire that w@in the UI;day period the parties attend and complete and
education program specified +y D 1I3.*.
(c) This section does not apply to di"orces filed +ecause of
(i) 0+andonment for one year
(ii) 9#treme cruelty
(iii) >a+itual drunkenness
(i")7mprisonment of the other party for felony at the time the petition is filed
(") procurement of final di"orce decree outside this state which does not in this state
release other party form the o+ligations of marriage.
("i)7nsanity for / years% has to +e institutionali<ed w@ poor prognosis of reco"ery.
("ii) con"iction of child a+use of either party to the di"orce
"ii) ct may issue a final order in an action for di"orce where minor children are in"ol"ed +efore the UI
day period if parties "oluntarily participate in marital or family counseling and the ct finds
reconciliation unlikely.
"iii) D 1I3.* ' - hr class showing damage high conflict marriage can make on children.
i#) =ai"er :i"orce; when : is agreed upon% can file petition% the party that is not appearing in ct can
sign a wai"er of notice of court date. *- hrs ha"e to pass +@t time you file petition and file wai"er.
N!ourt (ulesO.
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Oklahoma Family Law
#) D 1*3 Time when 2udgment is final in di"orce ' appeal
#i) !an get 2ury trial in OJ for contempt and gi"ing up parental rights.
#ii) D 11I; Orders !oncerning 1roperty% !hildren% 4upport and 9#penses (very im)ortant. should
)robably no# this one by number).
(1) 0utomatic Temporary 7n2unction .otice; to protect status )uo ' goes +eyond prop ' what
can@canCt do after di"orce is filed. 9#cept attorneys fees% necessary li"ing e#penses% +usiness.
(*) 7f ha"e to in"ade for purposes in (a) ha"e to keep an accounting.
(,) Once ser"ed it is in effect and if you "iolate it% it is contempt.
(-) 7f there are kids you almost always need still need TO. 9"en if there is an agreement on assets
or on custody.
(a) 7f you donCt ha"e one and the other party stops doing what they ha"e agreed to do then you
ha"e no enforcement mechanism.
(/) Other reasons to get a TO ' residence% temp alimony% child support% support or "isitation% prop%
payment of de+t% attorney fees% possession of prop% custody% de+t distri+ution% re)Cts during
"isitation (no smoking% no o"ernight guests of opposite se# when children are there).
($) 8et TO +y filing petition
(3) .o re)Ct to answer application for TO% +ut generally recommended you do +c you might want
different stuff.
(8) !anCt appeal TO
(U) 4tatute we look to for pro"isions for emergency TO ; e#parte emergency relief. 7rrepara+le
harm will result.
(1I) 0llows for attorneyCs fees
#iii) 11I.1 1olicy for 9)ual 0ccess to Minor !hildren +y 1arents. OJ county really good a+out
enforcing statute. 4ome counties do not enforce.
(1) 6o1 on parent to show why there should not +e 2oint access.
(*) .otice not 2oint custody. !ustody means decision;making authority.
#i") 1
st
in time to file is county w@ 2urisdiction% doesnCt matter which one ser"ed first.
#") Cha)man v. Cha)man (1/,) 3 consent decree% presumed you ha"e all info.
(1) .o time limit on prop settlement.
(*) There is a fiduciary relationship when Fnot getting alongG M ceases when di"orce is filed and
parties hire counsel
#"i) Whitmire v. Whitmire (1/8) ' Final order is not final if appealed on +asis on granting of di"orce.
:i"orce was not final +c = was appealing the granting of the di"orce itself. Vou are di"orced K
time you are proclaimed
(1) 9B!91T if the appeal that is challenging "alidity of the di"orce. > died +efore final decree
and thus di"orce was "acated.
#"ii) Stuart v. Stuart (1$-) 0fter di"orce is final% = files tort claim for a+use. > claims she canCt +c
claim is foreclosed +y res 2udicata.
(1) Tort claim does not ha"e to +e +rought K same time ; di"orce actions will +ecome unduly
complicated if tort claims must +e litigated in the same action
(*) 6argaining power of the parties ' person doing the a+using may not +e as reasona+le to settle
prop matters if a+use claims are going to +e litigated K the same time
(,) :i"orce action is e)uita+le in nature and in"ol"es a trial to the ct trial of a tort claim is one K
law and may in"ol"e a re)uest for a 2ury trial
(-) (esolution of tort claims may necessarily in"ol"e numerous witnesses and other parties such
as 2oint tortfeasors and insurance carriers whose interests are at stake
(/) :onCt want chilling effect of people working together in family ct
($) :onCt want to make them wai"e rights they may +e entitled to +y forcing to +e heard in
di"orce proceeding
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Oklahoma Family Law
(3) (e)Cg 2oinder of tort claims in a di"orce action could unduly lengthen the period of time
+efore a spouse could o+tain a di"orce ? result in such ad"erse conse)uences as delayed child
custody ? support determinations.
(a) if agreement is too comprehensi"e; may +e precluded from +ringing tort claim later
E/0I1A2LE DIVI3ION O4 PROPER15
1) 9)uita+le ' does not mean e)ual. Fair always mean /I@/I.
*) !t can consider things such as length of marriage% what the prop is going to +e used for% how the prop
was ac)uired% etc.
,) >andful of states doing community property. * types5 1) community and *) e)uita+le distri+ution.
a) OJ has dual property.
+) 1resumption ; anything ac)uired during marriage is marital% then go +ackwards.
i) 7f someone wants to claim it is not marital ; they ha"e 6o1 to show why it is not. 7f they can
show 1 of the categories that shows it is separate% 6o1 falls to the other to show it is not.
-) !ategories of 4eparate5
a) Owned prior to marriage ; o+"ious
+) 8ifted during marriage ' tricky hard to pro"e a+sent holiday or +;day
c) 7nherited during marriage ' pro"ided it is not commingled (e.g. > gets H from fatherCs will and
places it in 2oint account)
d) 0c)uired as a result of personal in2ury and suffering award ' as long as not commingled
e) 1roperty ac)uired during marriage +y the use of separate property ' unless it changes character%
due to transmutation
f) 7ncreased "alue of separate property if due to economic conditions (2ust goes up in "alue) ' unless
marital endea"or% marital funds or ad2ustment
g) 9#ceptions5
i) owned it prior to marriage and commingled w@ marital funds M marital property
(1) 9#5 1rior to marriage% > has car w@ , yrs of payments. :uring marriage makes , yrs of
payments% funds earned during marriage M marital. Marital contri+ution to that de+t. 0ny
increase in e)uity would +e marital prop
ii) Transmuted M commingling (change in +eha"ior due to intent of parties)
(1) 9#5 > uses inherited funds to +uy pool K house. 1rop has +een transmuted from sep to
marital ' pool is so commingled w@ house that it is transmuted. !an argue otherwise% +ut
will +e hard. 4ource of funds. 7t add "alue to the houseS May+e% especially if it was recent.
iii) 1lacing prop in 2oint title.
(1) 1resumption ; something is marital.
(a) 7f show that it transmuted% 6o1 shifts to other party to show it is marital.
h) !t has discretion to order the sale of prop or an asset. :e+t will look to income prop going to try
to go /I@/I or K least fair.
i) !an use alimony in lieu of prop ' used if something canCt +e di"ided or will +e diminished
greatly if di"ided.
i) Pro& divisions are not !odi"ia%e6ut a%i!on$ is (56 7$6%8)
/) Hubbard v. Hubbard (13/) Jnow as F>u++ard !laimG
i) Restitutionar$ a%i!on$ to &a$ 7 ac) and )ee& 7 "ro! eing un,ust%$ har!ed and H
un,ust%$ enriched due to 78s su&&ort o" H9 '1his is a%i!on$ in %ieu o" &ro& ut a%%
a%i!on$ in %ieu o" &ro& is not necessari%$ restitutionar$ a%i!on$9)
ii) >ere% the ct awarded = H1IIJ in lieu of prop di"ision +ased on "alue of medical license that
= helped > o+tain.
iii) (e"ersed +c educational degree is not encompassed w@i the concept of prop and is therefore
ineligi+le for "aluation and di"ision upon dissolution of marriage.
1age U of -1
Oklahoma Family Law
(1) 7f canCt sell it% canCt pass it onTcanCt di"ide it.
i") Little or no marital prop had +een ac)uired through the increased earning capacity pro"ided +y
the supported spouseCs degree or training% the amount spent for direct support and school
e#penses during the period of education R reasona+le interest and ad2ustments for inflation
should +e apportioned to the spouse who su+sidi<ed the education.
(1) +c of the total 2oint commitment to >Cs education@training% were few con"entional assets
like e#pensi"e home% furnishings% sa"ings@in"estments to di"ide K time of the di"orce.
") 0mount of in"estment (cost of school and education related e#penses) and interest thereon.
"i) =as there a reasona+le return on the in"estmentS
(1) 7f they had +een married 1I yrs after the degree was o+tained% there would not +e a case for
restitutionary alimony.
(*) longer period of time after graduation% more opportunity for other spouse to +enefit.
$) 0n item that has appreciated in "alue K the time of di"orce% if due to5
a) 2ust economic factors ; all the increase is also separate.
+) 1IIY marital industry (time or funds) spent +y either of the parties ; increase is marital.
c) !om+ination ; ha"e to figure out how much of increase is marital% how much is separate.
i) :i"ided e)uita+ly. /I@/I is typically starting point% +ut can +e changed to make it e)uita+le.
3) Forms of marital property distri+ution5
i) 9"en split ' straight up di"ision M e)uita+le
ii) 4et off
iii) 0limony in lieu of prop
(1) 1 type is restitutionary alimony (>u++ard claim) ' when 1 party gets an intangi+le asset
(degree) and the other one gets cash to pre"ent un2ust enrichment.
8) >ow do we get the "alue of things5
a) 9#pert testimony% appraisal% etc.
+) 0ppliances ' FM& 2udged +y what you could sell for K time
c) Future income ' ne"er consider for >u++ard claim +c is after the marriage
U) 9acson v. 9acson (18$)
a) = asserts >u++ard claim% +ut facts are different than in Hubbard +c here they were still married
while he was practicing medicine. = had ample opportunity to en2oy the fruits of her in"estment
1I) 7orristall v. 7orristall (188)
a) >u++ard claim = had plan to finish education (as agreed +y > ? =)
+) Trial ct will decide how much to pay = for her education +y factoring how much it will cost and
what resources she has access to
c) (esitutionary alimony ' = contri+uted twice as much as >. ct can weigh how much each party put
into it
11) Pounders v. Pounders (*II)
a) > married = +ut still had child support to pay for past relationship. > used H from =% wife wrote
checks. = agreed to such situation +y marrying him ' ac)uiesced.
+) (esitutionary alimony will not apply to this case
1*) 1rofessional 1ractices5 8ood =ill
a) !ravis v. !ravis (*I$) 7s good will of >Cs law practice a marital assetS
i) 8ood will of a +usiness ; e#pectation of a continued pu+lic patronage.
(1) is transfera+le prop
(*) 7ntangi+le asset pertaining to an est. +usiness.
(a) 7ntangi+les ha"e no intrinsic "alue% +ut do ha"e a "alue related to ownership and
possession of tangi+le assets.
ii) 8oodwill ; essentially reputation that will pro+a+ly generate future +usiness.
iii) =here goodwill is a marketa+le +usiness asset distinct from personal reputation of a particular
indi"idual (usually the case w@ many commercial enterprises) ' it has an immediately
1age 1I of -1
Oklahoma Family Law
discerni+le "alue as an asset of the +usiness ? may +e identified as an amount reflected in a
sale@transfer of a +usiness.
i") 7t is a di"isi+le prop
(1) !an come to "alue +y agreement or use FM& ; need e#pert pro+a+ly.
(*) Factors ' e#perience% e#pertise% education% age% etc.
(,) OJ law says law firms do not ha"e goodwill.
(a) 0ttorney canCt share files. >eld that an earning capacity is more e)uita+le than
speculati"e di"ision of good will in law practice of a sole practitioner. :i"erse opinions
outside of OJ.
") 7f the goodwill depends on the continued presence of a particular indi"idual ; not a marketa+le
asset distinct from indi"idual.
"i) !annot sell his files to a succeeding lawyer +c it would "iolate O(1!% thus the earning
capacity of a lawyer and su+se)uent setting of alimony +ased upon that earning capacity is
more e)uita+le than the speculati"e di"ision of good will in the law practice of a sole
practitioner.
+) !rac&y v. !rac&y (*1$) 8enerally% a medical doctorCs practice is more easily transferred to
another doctor than a law practice to another lawyer. Typically% when transfer of a medical
practice is to take place% selling doctor will introduce the purchasing doctor to the patients to
prepare patients for a transition.
i) >eld goodwill in >Cs podiatry practice transfera+le to another podiatrist in e"ent > sells
practice% such goodwill may +e included in "alue of the podiatry practice in making an
e)uita+le marital prop di"ision
1,) 1ension and 1rofit 4haring 1lans
a) Ase of e#perts in this area "ital% cts consider it as a factor
+) Pulliam v. Pulliam p. *I$.
i) * ways to distri+ute assets5
(1) 1resent &alue (a.k.a. immediate offset method) ; pension is awarded to 99% and non;99
recei"es other spousal prop or H
(a) 0d"antage ; eliminates any future contact +@t the parties% the ct% or the 9(.
(+) :isad"antage '
(i) re)s pension to ha"e an ascertaina+le present "alue to offset e)ui"alent spousal
assets
(ii) 0nother draw+ack occurs when there is insufficient spousal property ; the 99 is
forced to pay a lump sum e)ual to the present "alue of pension. This may +e
difficult if 99 lacks li)uid assets necessary for a lump sum payment.
(*) :eferred distri+ution method ; non;99 shares in retirement +enefits when 99 +ecomes
eligi+le for them.
(a) !t typically determines non;99 spouseCs Y of future pension +enefits which are
attri+uta+le to the marriage.
(i) determination should +e made K same time other 2ointly ac)uired prop is di"ided.
(ii) ad"antage ; present "alue of pension fund need not +e determined.
(iii) ma2or disad"antage ' a final resolution is not reached K the time of the
di"orce.
+:' Why use )resent or deferred*
+a' ;ebt is divided e<uitably
ii) 1ensions ; generally are defined +enefit plans rather than defined contri+ution plans.
(1) do not "alue pensions +y what the contri+utions are.
(*) OJ ; present "alue method is prefera+le where pension "aluation is not unduly speculati"e%
and where% K time of di"orce% sufficient assets are a"aila+le to di"ide present "alue of
retirement +enefits w@o causing an undue hardship to 99.
1age 11 of -1
Oklahoma Family Law
iii) (etirement plans fall into * +road categories5
(1) :efined +enefit plans ; most common type of pension plan.
(a) 9( is o+ligated to pro"ide a certain monthly or annual +enefit upon retirement
(i) paid from date of retirement until date of death.
(ii) +enefit to +e paid upon retirement will +e arri"ed at +y use of a math formula.
1. Often the formula is5 a Y of Frele"ant compensationG multiplied +y the Z of yrs
of credited employment.
*. 8enerally in defined +enefit plan% a separate account does not e#ist for each
participant. 9( contri+utes periodically to 1 large fund from which all +enefits
are paid.
a. know what you are getting% +ut canCt ascertain what you ha"e along the way
+c is in a pool of funds. May depend on age or le"el of employment attained
(*) :efined contri+ution plans re) 9( make a specified annual contri+ution to each 99Cs plan.
(a) separate account is maintained for each 99.
(+) amount ultimately recei"ed +y the 99 will depend upon the amount of total
contri+utions plus success of in"estment of the plan% forfeitures of other participant
accounts and e#penses of administering the plan.
(c) 0mount accumulated in fund can usually +e determined K least on an annual +asis.
(d) 9#5 -I1J thrift sa"ings plans personal sa"ings plans.
1-) separate prop ; generally retains its separateness.
a) 0ny increase ; look to see if it is marital effort% economic or +oth
i) if +oth ; look to see how much of the increase was attri+uta+le to marital industry is di"isi+le.
4he doesnCt get all that% 2ust her portion of it.
1/) :e+t ; di"isi+le in same way as assets if it arose during marriage% it is di"isi+le.
a) 9)uita+le w@ assets5 start w@ /I@/I.
+) 9)uita+le to de+t5 looking K a+ility of party to pay de+t and look K where assets are going.
i) 9)uita+le distri+ution in "iew of income.
ii) 9specially if incurred and@or accrued during marriage% it is marital.
(1) :oesnCt matter whose name it is under
(*) 9#5 > had H*%III de+t +efore marriage% at end of marriage had H$%III +ut had made
payments throughout marriage M marital
iii) :onCt di"ide up on gender +asis% or if it is education loans.
i") 4eparate de+ts and marital de+ts can o"erlap.
") .ot uncommon for 1 party to take all de+t.
,=' When ased on e1am ho# to divide*
a' E<uitably
i' ;eferred or )resent
b' Get e1)ert to do an evaluation
i' %ny future earnings > se)arate
c' $f decree is entered and some )ro) is left out. the )ro) goes to the title holder
i' So #ant to al#ays have a Catch-%ll %greement
d' Want a Hold-Harmless Clause
e' When dividing )ensions. #ill al#ays #ant a ?ualified ;omestic "elation 5rder +?;"5' 3 tells
administrator ho# to divide )ensions
f' !hings considered #hen dividing )ro)@
i' E1tent of o#nershi)
ii' Economic fault
iii' 6eed of ids
,A' can a ct. #hen dealing #( )ro) division. sever 2oint tenancy and re< tenants in common*
a' Ct cannot leave )arties as 2oint o#ners of anything 3 cannot re< them to o#n something together
1age 1* of -1
Oklahoma Family Law
18) :isa+ility and Other 9mployee 6enefits
a) Christmas v. Christmas (*,3) :isa+ility +enefits M separate
i) 7s replacing wages to +e earned after di"orce M separate
ii) (eplacement analysis ' classifies +enefits on the +asis of the nature of assets they replace
+) 6elson v. 6elson (*-1) > wanted to transfer part of his retirement into disa+ility to keep = from
getting part. !t re)Cd > to indemnify ? ensure = got same amount she was awarded in di"orce.
This pro"ision solely pre"ented > from unilaterally reducing =Cs prop award.
i) 7ndemnification is allowa+le.
ii) =hen a pension is di"ided% itCs e#pected to +e paid out the way it was decreed.
(1) :onCt need clause to say that can enforce order.
c) ;avis v. ;avis (*-3) !t held se"erance package M not 2oint prop su+2ect to e)uita+le di"ision
i) !t followed FreplacementG approach% which holds if proceeds in )uestion replace wages
earned during marriage ; proceeds were marital prop su+2ect to e)uita+le di"ision.
ii) !lassify +enefits not on what they are called% +ut +y to the nature of assets they replace.
(1) To the e#tent it compensates for loss of post;di"orce earnings +y in2ured party ; separate
prop.
(a) +c a former spouse has no inherent right to salary earned +y his@her former marriage
partner after marriage is terminated
(+) no right to a disa+ility award which is intended to replace future wages.
(*) To the e#tent that it recompenses for coupleCs loss of income during marriage ; marital
prop
iii) >ere% > ga"e up his right to sue for age discrimination% which would ha"e +een separate to
him ; thus% separate property.
d' What about vacation time not taen during marriage that can no# be )aid out. $s it marital*
i) Ves it is marital +c accrued during marriage and has ascertaina+le "alue.
e) 4tock options ' ;uty (*/I) ; if stock options are not "ested +ut recei"ed in marriage ' marital
1U) Tort and =orkers !ompensation (eco"eries
a) Crocer v. Crocer (*/,) =hether a lump sum workersC compensation payment is considered to
+e 2oint prop for the purpose of marital prop di"ision
+) =hether social security disa+ility payments are 2oint prop ac)uired during co"erture
i) :isa+ility M not di"isi+le +c represents a loss (in2ury) that has monetary "alue to that
indi"idual
c) whether accrued e)uity in the coupleCs home could +e di"ided +@t parties after home had +een
awarded to > in the coupleCs prior di"orce.
i) >a"e to +reak it up and determine what it replaces using the 0nalytical approach. (only have
to no# analytical a))roach. but have to no# that different states do it different #ays.'(other
states use5 1. mechanistic% *. case;+y;case and ,. unitary)
ii) 0nalytical approach attempts to determine underlying nature of a workersC compensation
award +efore deciding whether it constitutes separate or marital prop.
(1) 4eparate prop of in2ured spouse includes economic losses occurring after termination of
marriage% including amount of award% which constitutes loss of future wages ? future
medical e#penses.
(*) To determine what portions of award are marital or separate property under the analytical
approach% cts look at these issues5
(a) 1urpose of the award ' was it made for lost earnings% loss of future earning capacity% or
some other purpose
(+) time period of any diminished earning potential or disa+ility is rele"ant
(c) nature and date of underlying in2ury should +e ascertained
(d) terms of award are important% i.e.% when award "ested% total amount of settlement and
any other known specifics of the award itself.
1age 1, of -1
Oklahoma Family Law
iii) 4ocial security disa+ility di"isi+leS ' .O
*I) Transactional 1ro+lems
i) 8ift ? 7nheritance
(1) Marriage of Bing (*$I)
(a) =hile married found out had 1$ yr old out of wedlock
(+) 4aid he had donati"e intent
ii) !ommingling
(1) Standefer v. Standefer (*$-)
(a) 1arties asked for 2oint settlement instead of separate claims so ct held it was 2ointly
ac)uired prop
iii) Loint Tenancy
(1) 8arman v. 8arman (*$U) 'Harrington hates this case bc is mury C confusing. (emem+er5
2ust +c it remained separate% any "alue increase due to efforts of a spouse% that part is di"isi+le
(a) There is a re+utta+le presumption of a gift where title to separately held real estate is
placed +y one owner;spouse in +oth spousesC names as LT
(+) 7f a LT deed facially affects an unconditional transfer% is deemed a presumpti"e inter;
spousal gift% whose effect can +e o"ercome +y c%ear and convincing evidence of a
contrary intent.
(c) 7f they can show there was no donati"e intent% +urden shifts +ack to other party to persuade
(i) To show a gift5
1. competent donor
*. freedom of will on part of donor
,. donati"e intent to make gift
-. donee capa+le of accepting gift
/. deli"ery +y donor and acceptance +y donee
(ii) >ere title was in +oth names due to financing restrictions% thus ct said was sufficient
e"idence to show no donati"e intent. Must ha"e intent for a gift.
(iii) 0dditionally gifts must +e gratuitous and irre"oca+le and go into immediate ?
a+solute effect w@ donor relin)uishing all control.
(i")7n short ;gifts re) an immediately effecti"e% un)ualified and gratuitous transfer of
ownership to donee.
(*) Beale v. Beale (*3-) 7ssue5 whether > ga"e a portion of assets to = when he added her name
to certain +ank accounts owned prior to marriageS
(a) , elements to effect transfer of title +y gift5
(i) 7ntent to gi"e
(ii) !omplete deli"ery of thing gi"en
(iii) 0cceptance +y donee
(+) 2oint prop is marital property which can +e re+utted +y e"idence that there was no inter
"i"os gift.
(c) (e+utta+le presumption of a gift where title to separately held real estate is placed +y one
owner;spouse in +oth spousesC names as LT.
(d) 9"idence included fact that only > had access@used to check+ook and = contri+uted
nothing to funds in account in some cases = didnCt e"en know a+out accounts
(,) if di"orce decree and 0T7 is ordered% cannot remo"e the others name from the title
i") 7ncome from and appreciation in "alue of separate prop
(1) Marriage of Mur)hy (*3U)
(a) !on"eyed land% T! found marital prop = claims didnCt mean for it to +e a gift when she
put in family trust
(+) !t looked at reasons to create trust and how they were 2oint owners
1age 1- of -1
Oklahoma Family Law
(*) Macdonald v. Macdonald (*8/) > got car dealership as gift from dad. Ased partnership profits
to +uy additional prop and e#pand dealership.
(a) Funds used +y > to ac)uire the rental real estate and the .> auto +usiness% although
undistri+uted were earnings ta#a+le to the parties and o"er which they had discretionary
control. Thus% the properties ac)uired w@ these earnings were part of marital estate.
(i) 1rofits of a partnership are income to partners% not partnership% and are ta#ed
accordingly. 1artnership profits are personal income to partners whether they are
distri+uted or reser"ed.
(ii) 7ncrease in "alue of non;marital prop is not intended to co"er the income from prop
ac)uired prior to the marriage. 4uch income is marital prop. 4imilarly% income from
other non;marital prop ac)uired after the marriage is marital prop
(+) 7ncrease in "alue or appreciation of separate prop is marital or separate is go"erned +y the
4ource of Funds rule in which the marital interest is determined +y the ratio of marital and
separate in"estments in the prop. !omports w@ the partnership or shared enterprise theory
underlying the concept of e)uita+le distri+ution.
(c) 4ource of Funds rule recogni<es that impro"ements to sep prop may +e traced to la+or as
well as marital funds% whether attri+uta+le to the efforts of one or +oth spouses.
(d) The increase in "alue of sep prop during marriage shall +e apportioned +@t the sep prop of
the owner ? community prop of the spouses. 1rofit or increase in "alue of prop may result
either from the capital in"estment itself% or from the la+or% skill and industry of one or +oth
spouses or from +oth the in"estment of sep prop ? the la+or and skill of the parties. =here
+oth factors contri+ute to the increase in "alue of a +usiness% that increase shall +e
apportioned +@t sep ? community prop
(e) 6urden of est an increase in "alue of sep prop occurring during the marriage is on the party
asserting that increase. Once an increase has +een estCd% under the statutory presumption in
fa"or of marital prop% +urden is on spouse who contends the increase is sep prop to pro"e
the increase is the result of inherent "alue of the prop itself and is not the product of the
work effort of the community.
(,) May v. May (*8U) >ad a prenuptial agreement% all their sep prop was to retain its character and
+e managed separately. > +uys home w@ his own funds. Later transfers [ interest in the home
as a gift. 9#penses incurred during the marriage for all +ut initial impro"ements were paid +y
+oth spouses in proportion to their respecti"e interests. !ourt ga"e = [ interest.
(a) 1rop was ac)uired w@ >Cs sep funds. 7ts purchase% e"en though after marriage% did not ipso
facto in"est the = w@ any greater interest in that prop than she would ha"e had in the
money (+efore it was spent to +uy house) if that money had remained intact in >Cs sep pre;
marriage +ank account.
(+) , elements rele"ant in determining the )uantum of =Cs claim in addition to her 1@,
interest5
(i) 0c)uisition cost of the entire prop plus costs of impro"ements made (for which she
paid her proportionate share)
(ii) 7ncreased "alue due to inflationary factors or other market;place forces producing
appreciation in price le"els (unrelated to efforts of la+or) and
(iii) 7ncrease in "alue% if measurea+le% which is attri+uta+le to personal efforts of la+or
+y spouses
(c) = entitled to her 1@, share plus if there is any additional measura+le increase in "alue of
home that may +e attri+uta+le not to appreciation in price +ut purely to efforts of la+or
e#pended through ser"ices (whether in doing minor repairs and impro"ements or in
performing day;to;day maintenance duties)% such increase alone is reacha+le as a 2oint
spousal interest for di"ision +@t parties on +asis of an e)uita+le share.
(-) 7ord v. 7ord (*U1) ' contri+ution of non;participating spouse
1age 1/ of -1
Oklahoma Family Law
(a) =hether a spouseCs practice of a profession such as law or medicine is to +e characteri<ed
as 2ointly ac)uired marital prop and su+2ect to di"ision. =here one spouse +rings separate
prop to a marriage and an increased "alue of the &ro& (not o"erall "alue of company +c of
goodwill) occurs as result of 2oint efforts of >?=% the other spouse is entitled to an
increase in appreciation of the prop. (8ood will is sep ' this is a+out actual physical assets.
4ome pro+ w@ accounts recei"a+le% +c then are you going to consider the de+tsS) 4tuff w@i
law firm is di"isi+le ' chairs% etc.
(+) 0 > is not o+ligated to support =Cs children +y a former marriage +ut if he recei"es them
into his family and supports them% it is presumed that he does so as a parent% and where
such is the case% they are not lia+le to him for their support% nor "ice "ersa
(i) =hile it may ha"e +een improper for the T! to consider such medical +ills paid prior
to di"orce in +alancing the e)uities% record does not disclose that marital estate or that
portion thereof awarded to = was diminished +y T!Cs consideration of the payment of
the medical +ills. 9rror is harmless.
(c) =hether =Cs litigation e#penses and attorneyCs fee should +e su+tracted from the gross
2oint prop estate prior to di"ision. =ould run contrary to statute that pro"ides5 ct may re) >
or = to pay such reasona+le e#penses of the other in prosecution or defense of the action
as may +e 2ust ? proper considering the respecti"e parties and the means and prop of each
(d) 7f ac)uired during marriage% donCt need to show why it is marital. 1arty has 6o1 to show
why it is not
(/) !hielenhaus v. !hielenhaus (*U-)
(a) =hat portion% if any% of in;marriage increase in >Cs retirement fund is di"isi+le as marital
propS
(i) The in;marriage enhancement (or growth) in >Cs retirement fund which is attri+uta+le
to the 9(Cs participatory payments or to either spouseCs monetary contri+ution% skill or
effort is a di"isi+le marital asset
(ii) +ut any increase in >Cs sep. (pre;marital) interest in that fund% produced +y in"estment
(managed +y neither spouse)% appreciation% inflation% changing economic conditions or
circumstances +eyond the partiesC control is to +e deemed the >Cs sep prop
1. , critical "alue;assessment elements identified to determine the non;owning
spouseCs )uantum of interest in the otherCs sep prop are5
a. cost@"alue of sep prop
+. The non;di"isi+le in;marriage enhancement caused +y inflationary factors or
other marketplace forces producing appreciation in price le"els (unrelated to
efforts of la+or)
c. 7ncrease in "alue% if measura+le +y proof% which is due to personal efforts% skills
or e#pended funds of the spouseCs la+or.
*. 0 pension that has +een Fpurchased through 2oint efforts of spouses to the e#tent
that it has +een ac)uired or has +ecome enhanced during the marriage is di"isi+le
marital prop. 1ension rights that result from employment occurring +efore and after
marriage partake of dual (separate and marital) prop character.
(+) =hat cut;off date shall +e set for "aluation of this marital assetS
(i) cut;off date to +e set for "aluation of the di"isi+le marital interest in the fund is the date
the nisi prius ct reached this suit for trial.
1. T! has to ha"e discretion to est a cut;off date tailored to the caseCs circumstances
(c) Method of "aluation is discretionary ' +asically anything that is supporta+le.
(i) &aluation can +e different for different items@prop e"en w@i a single case
(d) Methods for which date to use5
(i) 4eparation
(ii) :issolution
1age 1$ of -1
Oklahoma Family Law
(iii) Filing
(i")0ny other that ct deems e)uita+le
(e) O"er"iew5 8rowth on assets that is caused +y economic conditions is also the prop of
original spouse along w@ the sep asset. B is if the non;owning spouse can show marital
industry in the economic growth (helped get the shopping center +uilt ne#t to their lot% the
resultant shopping center increased the "alue of the prop su+stantially.) The sep asset still
remains sep. 7f there is marital industry (la+or and@or funds)% the non;owning spouse gets
his@her e)uita+le share of that portion of the asset% +oth the principal and growth if
something like a pension fund.
($) Mothershed v. Mothershed (,I*)
(a) 8ift of *%-II shares of common stock to each of his * children. 8ift was issued in childCs
name only% and was not gi"en 2ointly to each child and his@her spouse. :ue to later
redemptions% = came to own 1IIY of company.
(i) :ispositi"e issue is whether sep prop gi"en to appellee +y her father should +e
su+2ected to prop di"ision +c of appellantCs managerial efforts% skills% and financial
commitments which allegedly either enhanced the "alue of prop or changed the nature
of the ownership.
(ii) :etermination of the issue as to sep ownership of the prop ac)uired during marriage is
dependent upon the original source of all prop
(iii) (ecei"ed compensation for his position as pres.
(+) 4tandard to o"errule ' must +e clearly against the weight of the e"idence
") &aluation of 1rop
(1) Types of 1rop
(a) Bro#n v. Bro#n (,11)
(i) > appeals due to inappropriately assigned distorted "alues to - assets. 7n addition%
money 2udgment paya+le to = was not deducted from >Cs award.
(ii) Look at FM& for "aluations of houses ' not what you paid for it
(iii) .ot "aluing the assets contained w@i the house ' prop "aluations do not include
items in house howe"er% to +e e)uita+le% the contents of the house should also +e
di"ided
(i")4ince the parties re)uested the di"ision +e as e)ual as possi+le ? "alues were
ascertaina+le% it o"errode general principle of e)uita+le distri+ution.
(+) 9ohnson v. 9ohnson (,1-) :i"ision of prop in di"orce is e)uita+le cogni<ance and will not
+e o"erturned unless it is clearly against the weight of the e"idence. :ifferent ways to
"alue things. 0s long as it is supporta+le% will not +e o"erturned.
(c) "obbins v. "obbins (,1/) &alue of assets at issue. :ifferent ways to "alue. .ot accepta+le
to ha"e people come in that morning% look at the car lot% and make a guess. They did not
consider salaries% or look at the +ooks. !redi+ility is going to +e a ma2or factor when we
ha"e dueling e#perts.
(i) :onCt rely on people known in the community (e.g. Local car dealers)
(d) !eel v. !eel (,18) di"ision of prop. Lia+ility of de+t was assigned to >% = got alimony in
lieu of prop for the homestead% +ut if de+t was found to +e hers% she got stuck w@ all of it.
!t changed to say that if she got stuck w@ de+t% > has to pay an e)uita+le amount.
(e) S)encer v. S)encer (,*/) 8eneral criteria for achie"ing an e)uita+le di"ision of 2oint prop5
(i) .eed affords no criterion
(ii) e#tent of each partyCs rights in the prop depends on their respecti"e conduct and efforts
as the contri+uting factors in the creation and ac)uisition of the entire marital estate.
"i) Look at FM&% not replacement "alue of household items when doing prop di"ision ' what you
could sell it for now in current condition. (eceipts donCt matter% nor does replacement "alue.
1age 13 of -1
Oklahoma Family Law
"ii) 0ddress co;mingling ; sep prop +efore and why or why not you are going to treat it as sep upon
di"ision (8 yr marriage is going to wipe out pre"ious de+t that has since +een co;mingled)
"iii) >u++ard claim ' if the facts are there that make you think it% at least e#plain and mention ; state
why you do not think it is applica+le. 9ducation% li"ing e#penses and interest. 7f she paid part of
the li"ing e#penses% she can get credit for that. = gets >u++ard claim of H,IJ% gi"e her H,IJ.
-I1J [ of it was hers to +egin w@ anyway. One party in"ested% the other party is un2ustly enriched
where there was no de+t.
i#) :e+t ; doesnCt matter whose name its in if accrued during marriage. :onCt split things +ased on
gender. 7f you do% e#plain that you know it looks like gender% +ut it really isnCt.
#) 4tudent loans ; incurred during the marriage are marital +ut it may not +e e)uita+le to split that
/I@/I. .eed to look at details of situation. For de+ts% look at income of the parties. For assets% we
are going to try to make it /I@/I in de+ts% we are looking at circumstances% incomes% who gets the
assets underlying the de+ts% etc. :e+t does not ha"e to +e /I@/IWWW
#i) 9#am ' 1ension ' recogni<e if part of it is sep and the interest thereon as it is "alued. :onCt
necessarily ha"e to gi"e the amounts issues of sep prop for +oth de+t and assets prop that appears
to +e sep% has it +een transmuted or commingled donCt forget to allow parties to accrue interest on
any sep portion (pension% -I1J)
ALIMON5 AND CHILD 30PPOR1
1) * Types
i) 0limony in lieu of prop ' not modifia+le (+c form of prop) and no+ody gets a ta# deduction
ii) 0limony as spousal support ' modifia+le% income to the recipient% ta# deducti+le to the payee.
(1) .either is dischargea+le in +ankruptcy any longer.
*) , things as to whether alimony is warranted in a case when doing the analysis5
i) 7s there a need +y the person re)uestingS
ii) 7s that need deri"ed from the marriageS ' rationally connected to the marriage
(1) >ealth
(*) 0+ility to support self
iii) 7s there a+ility to pay +y the payorS
(1) 0lso important ta#es and who will pay them
,) Title -, D 1,- 0limony 1ayments
i) Look at income of payor
ii) .eeds to +e Fsum certainG
iii) Minus Ta#es
i") Minus 9#penses
") !annot +e retroacti"e
"i) .either type of prop cannot +e lien on prop\
"ii) 1arties can agree to do something different than what statute says.
"iii) 7f party dies then amounts not accrued terminate\
i#) 0limony may continue after remarriage (motion for continuance w@i UI days then ct can
consider) ha"e to show continued need and that it would +e ine)uita+le to not continue
alimony. 7f all of payments ha"e already +een made you canCt go in and ask it to +e continued%
ha"e to ask +efore it ends\
#) !oha+itation is grounds for discontinuing alimony% not automatic. Nli"ing together w@ mem+er
of opposite se# in con2ugal relationshipO ' su+stantial
(1) =hat if coha+itation w@ same se#S !anCt get in under coha+itation rule% +ut can argue
changed financial circumstances ' su+stantial ? continuing
1age 18 of -1
Oklahoma Family Law
(*) !oha+itation ; dwelling together continuously ? ha+itually of a man and woman who are
in a pri"ate con2ugal relationship not solemni<ed as a marriage according to law% or not
necessarily meeting all the standards of a !LM
#i) !hange in need or change in a+ility to pay can +e reasons for modification ' marrying
someone w@ +unch of kids doesnCt )ualify.
#ii) !hange in circumstances cannot +e something that was foreseea+le at time of the prop
di"ision. $.e. 7 was getting a lump sum in cash and you knew or should ha"e known that 7
would ha"e in"ested the cash to earn interest income.
-) 8eneral5
i) 6o1 for o"erturning alimony ; weight of e"idence or a+use of discretion.
ii) :ecree must ha"e the amount of alimony and if it is alimony in lieu of prop or spousal support.
iii) .either type can +e a lien on real prop unless there is a ct order
i") 1arties can agree to do other than what the statute says% +ut need to +e "ery clear a+out it
") 0limony must still +e in e#istence ct cannot change something that is no longer in e#istence.
Must +e a +asis for modification.
/) 4tandards for the 0limony 0ward
i) Stansberry v. Stansberry (,*U) ; = has a need relati"ely young woman who is going to +lind.
> wants her to li"e +are+ones.
(1) .ot deri"ed from the marriage% +ut health issues are considered to +e part of what happens
in the marriage.
(*) !t is going to take into account standard of li"ing.
(a) To +e o"erturned the support alimony granted +y the T! has to +e contra to the
e"idence and an a+use of discretion.
(+) 4he has condition of diminishing sight and will not +e a+le to work and support herself
the way she had li"ed.
(c) The determination of amount of alimony to +e allowed in a di"orce action re)Cs the
consideration of the station in life and the conduct of parties% earning capacity and
estate of the > and financial means ? physical condition of the =.
ii) Bo#man v. Bo#man (,,1)
(1) (ationally connected to the marriage ' alimony should not +e awarded unless the
underlying +asis for the award has some rational connection to the marriage itself.
(a) Fact that > has more assets or earning capacity is not a +asis for an alimony award.
(+) 7t is merely a predicatory circumstance which must +e found to e#ist to support an
award.
(c) 0 =Cs need has +ecome the primary% if not the sole criterion as a +asis for an alimony
award.
(d) 7f the need arises out of or is aggra"ated +y the marriage itself or some e"ent connected
to the marriage (i.e. illness% postponement of education% or any other cause rationally
connected) then it )ualifies as a +asis on which alimony should +e properly granted
where the circumstances of the parties otherwise 2ustify an award of alimony.
(e) >ere the fact that her kids were sick e#isted +efore this marriage.
iii) 9ohnson v. 9ohnson (,,-) 0limony claim must +e supported +y proof of e#cess monetary
needs to cushion the economic impact of transition ? read2ustment to gainful employment.
0limony is awarded +ased on demonstrated need.
(1) >ere% e"idence did not disclose the e#istence% nature or e#tent of the =Cs need for alimony%
so no alimony was granted.
(*) 0limony is awarded +ased on demonstrated need% +ut ct cannot order what it does not
know a+out.
(,) 4pouse may need Freha+ilitati"e alimonyG or amounts to allow spouse to get training so
she can support herself
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Oklahoma Family Law
(-) (ecord did not show5
(a) cost of maintaining the = during her post matrimonial economic read2ustment period
(+) amount of income from income;producing prop set aside to her
(c) anticipated length of time that will +e re)Cd to make the necessary transition.
(/) 6o1 is on the person seeking alimony. Must +e e"idence of5
(a) amount of money = reasona+ly needs for read2ustment of lifestyle to a new economic
situation
(+) her income;producing capacity% such as the Z of hours she works per week and her
monthly income
(c) her monthly e#penses and future li"ing plans and e#penses
(d) her physical condition
(e) cost of her desired education
(f) whether her station in life or standard of li"ing has changed since separation
(g) how much her new coha+iting pro"ider contri+utes to her monthly needs.
+=' Dou donEt have to dissi)ate your assets in order to get alimony
i") Wood v. Wood (,,$) ; .eed must +e rationally connected to the marriage itself.
(1) 1arty re)uesting alimony% upon a showing of need% is entitled to recei"e alimony in a sum
e)ual w@ the mode of li"ing to which she has +ecome accustomed as a =.
(*) !ourt must consider the partiesC station in life% their respecti"e conduct% earning capacity%
the marital estate and the wifeCs contri+ution thereto.
(,) =Cs needs here were created +y a lifestyle which the parties 2ointly estCd and her standard
of li"ing will +e su+stantially diminished +y the alimony award as it stands.
(-) = got attorney fees +c > e#acer+ated the litigation and >Cs conduct throughout the trial
ser"ed to increase the resulting fees.
") Peyravy v. Peyravy (,-I) ' +c the cause was pre"iously remanded for re;calculation of >Cs
income for purposes of child support% this was remanded for re;calculation of support alimony
(1) 0ppropriate factors to +ase support alimony on5
(a) 1artiesC station in life
(+) Length of marriage and ages of the parties
(c) 9arning capacity of each spouse
(d) 1artiesC physical condition ? financial means
(e) Mode of li"ing to which each spouse has +ecome accustomed during the marriage
(f) 9"idence of the spouseCs own income;producing capacity
(g) Time necessary to make the transition for self;support
"i) May v. May (,-U) 4um certain ; cannot gi"e support alimony in an indefinite sum total.
$) Modification of 0limony
i) Mathis v. Mathis (,/1) ; :ecree of di"orce pro"ided for termination of =Cs support upon her
remarriage or death of either party. = remarried. w@i UI days of her remarriage% = applied for
a continuation of support alimony pursuant to -, O4 1,-(+).
(1) 7n order to continue post;remarriage support alimony% recipient has 6o1 to show unusual
or Fe#traordinaryG circumstances.
(a) e#traordinary circumstances is not shown simply +y = showing she cannot continue
same lifestyle in new marriage that she e#perienced as result of recei"ing support
alimony
(+) 1u+lic policy +asis is fa"oring support +y the current >.
(i) -, O4 D*I1 and D*I* re) spouses to support each other.
(ii) !t +elie"ed that it is illogical and unreasona+le that a spouse should recei"e support
from a current spouse and former spouse at the same time.
(iii) remarriage should ser"e as an election +@t support pro"ided +y the alimony
award and the legal o+ligation of support em+odied in the new marital relationship.
1age *I of -1
Oklahoma Family Law
(c) 7f this had +een an agreed di"orce% parties could ha"e contracted to e#tend the alimony
regardless whether = remarried or not. !an contract to things that the ct cannot order.
(*) =hat happens if she had gotten an annulmentS
(a) 7n OJ% hea"y towards no reinstatement% light on may+e.
(+) Once you remarry% that action of getting married notifies the other person they are off
the hook% can do something else w@ the money +c they no longer ha"e an o+ligation.
(c) 4o person who created that reliance should suffer the penalty ' no reinstatement.
(d) 4ome 2urisdictions allow reinstatement of alimony.
(e) modern position does not take a strict Fall or nothingG approach +ut adopts a fle#i+le
approach.
(f) recent "iew allows a ct to e#ercise its discretion to restore alimony if% considering all
the circumstances% it is necessary to rectify serious ine)uity or in2ustice.
(,) D 1*8U ; pro"ides that alimony is terminated after remarriage +ut ct is permitted to allow a
continuation upon Fa proper showing that said support is still needed and that
circumstances ha"e not rendered payment of the same ine)uita+le.G
(-) !ontinuing su+stantial change in circumstance 1olicy; e#;= doesnCt get to choose which
man gets to support her. =e donCt ha"e e#es supporting currently married persons. !ould
ha"e contracted for the support to continue after remarriage.
(/) 4tandard for modifying alimony5
(a) w@ coha+itation ' su+stantial
(+) w@o coha+itation ' su+stantial and continuing
ii) Smith v. Smith (,/3) ; fact that she is li"ing w@ someone% who is li"ing and mooching off her%
doesnCt mean her needs ha"e changed. 4he has the same re)Cts and is now spending her
sa"ings to support the dead+eat.
(1) T! erred in reducing the support alimony +c was no proof of reduced need on her part as
the recipient spouse. .o showing the alimony inured to the +enefit of her coha+itant.
(*) 7f "oluntary coha+itation is alleged in a motion to modify the payment of support% the ct
shall ha"e 2urisdiction to reduce@terminate future payments upon proof of su+stantial
change of circumstances of either party to di"orce relating to need for@a+ility to support.
(,) !oha+itation is not an automatic and a+solute termination of alimony
iii) $n re Bey (,$I) ; !annot change what did not e#ist.
(1) 7f you do not ha"e alimony estCd in the di"orce% cannot ha"e it modified later and T!
cannot create an alimony award later.
(*) 7f no agreement% ct cannot gi"e a nominal award of H1 or H1I w@ the idea to modify it later
(,) 4he wanted an award of alimony +c he depri"ed her of her prop settlement +y filing 6J.
(a) alimony in lieu of prop is no longer dischargea+le under +ankruptcy pro"isions
i") !hielenhaus v. !hielenhaus (,$-) ' > paid all the alimony payments already
(1) 7f no payments are do or outstanding the ct lacks statutory authority to modify
") Shadid v. Shadid (,$3)
(1) 1u+lic policy argument ; want people to impro"e themsel"es and +ecome self;sufficient.
(*) OJ Law recogni<es modifia+ility of spousal support o+ligations upon proof of5
(a) changed circumstances relating to the need for support or a+ility to support
(+) which are su+stantial ? continuing so as to render the terms of the decree unreasona+le
to either party.
(c) Anreasona+le ; change of circumstance must +e not only su+stantial ? continuing% +ut
must also +e a change not contemplated at the time of the partiesC agreement in fact it
must +e the "ery essence of change.
(i) 4u+stantial ? continuing R not contemplated at time of agreement
1age *1 of -1
Oklahoma Family Law
(d) =here 1 spouse recei"es cash and the other prop in the di"ision of marital estate% and
the spouse w@ cash in"ested some% it must +e contemplated that the in"estment will
earn interest income.
(e) =here a spouse has +een unemployed during the marriage% it may +e contemplated +y
the parties% depending on the facts and circumstances of the case% that the pre"iously
unemployed spouse will o+tain post;decretal employment.
"i) Smith v. Smith ' cannot use alimony as a punishment in Oklahoma. (not in +ook).
"ii) ;icason v. ;icason ' if consent decree is silent% we are not going to assume the o+ligation
will continue after remarriage and@or death. 7f the pre;suit spousal agreement as to the amount
of support;alimony and it intends to go outside the pro"ision of the statute% need to make it
crystal clear. 7f not stated clearly% assumed that you meant to conform to statutory pro"isions.
"iii) Whitehead v. Whitehead (,U1) 3 4um !ertain is not re)Cd +y statute +ut is still followed +ased
upon precedent. F=here in a suit for di"orce the ct awards alimony to =% to +e paid in money%
it must +e for a definite sum% to +e paid in gross or in installments.
(1) >ow do you make them pay alimony5
(a) Lien on prop
(+) 7ncome assignment
(c) !ontempt of ct
i#) 6o1 for modifying alimony5
(1) 4u+stantial change in circumstance (a+ility to pay or need% or continuing coha+itation)
(*) (eha+ilitati"e alimony ' training% schooling% education to get them +ack on their feet.
(a) 1ro"e +y showing clients +udget
(,) 4upport 0limony ' li"ing e#penses
(-) :educti+ility purposes5
(a) payments must +e made in cash as opposed to a promissory note
(+) must +e re)Cd +y a ct order
(c) parties cannot +e a mem+er of same household at same time alimony is +eing paid
(d) cannot file 2oint ta# returns at same time alimony is +eing paid
(e) cannot +e child support under another name
(f) 7(4 can recapture if you disguise alimony in lieu of prop instead of spousal support
#) Parham v. Parham (-II)
(1) FterminationG and FmodificationG are not the same
(*) if parties wish to apply special conditions for modification or termination they must clearly
e#press such intent
31ANDARD3 4OR CHILD 30PPOR1
1) .ow ha"e +enefit of child support guidelines. 9st what supporting parents will pay +ased upon
income and need.
a) D 118.* ' 9mployerCs :uties (egarding !ourt or 0dministrati"e Order for >ealth !o"erage '
gi"e custodial parent the a+ility to get insurance payment info when they are not insurance policy
owners. 0lso makes di"orce a F)ualifying e"ent.G
+) ]M!4O order that sets forth this info that you can send to insurance company.
c) D 118., 0greement to O+tain !ertain .ecessary 7nfo ' re)Cs parties to pro"ide pre"ious =;* and
1IUU forms upon re)uest on an annual +asis.
*) Factors5
a) Monthly income of +oth parents added together
+) 8o to chart% look at Z kids there are% thatCs the support amount
c) To get rele"ant Y% look at each parentCs Yage of the income.
i) 1arties pay Yage +ased upon their Yage of total income amount.
1age ** of -1
Oklahoma Family Law
ii) >e will also pay that same pro rata share of insurance for kids etc.
iii) :ay care contri+ution while working% going to school or looking for 2o+.
,) ;e)artment of Human Services e1 rel. B%G v. !;G (-*-)
a) =hether a release +@t a M and a putati"e F a+sol"ing F of support o+ligations +ars the appellant%
:>4% from +ringing a paternity action and estCg support o+ligations.
+) 0 release attempting to permanently depri"e a child of support is "oid as against pu+lic policy.
:oes not pre"ent >uman 4er"ices from +ringing paternity action and estCg support o+ligations
pursuant to 1I O4 1UU1 D8U
i) child was not a party to the agreement
ii) minor has an independent right to institute a paternity action
iii) agreement was not appro"ed +y a tri+unal
i") right to proceed in an action for support +elongs to child% and that it cannot +e +argained away
+y a settlement +@t the F and M
") 0ny attempt to permanently depri"e a child of support is "oid as against pu+lic policy.
-) > ? = agreements donCt ha"e to +e enforced +y a ct if they are un2ust% unreasona+le% or ine)uita+le to
the child
/) - formulas@approaches to child support5 ("ary +y state% donEt need to no# by name)
a) Melson Formula ' 1arents should retain minimal amount for themsel"es
+) =isconsin Formula ' Y of net income
c) !assetty Formula ' e)uali<e the standard of li"ing +@t the two houses
d) =ashington@7ncome 4hares 0pproach ' should recei"e same amount as they would had
dissolution not occurred
$) Hogue v. Hogue (-,*) ' T! erred in determining FCs income +ased on his last , pay stu+s
3) D118 !hild support guidelines ' cannot take into account step children do not use com+ined incomes
from new spouses
a) 7ncome D118.-.a. !t shall include for each parent% whiche"er is most e)uita+le% either5
i) 0ll earned and passi"e monthly income
ii) 0ll passi"e income% and earned income e)ui"alent to a -I hr work week plus such o"ertime
and supplemental income as the ct deems e)uita+le
iii) a"erage of the gross monthly income for time actually employed during pre"ious , years
i") minimum wage paid for a -I hour week
") 7f e)uita+le% the ct may instead impute as gross monthly income for either parent the amount a
person w@ compara+le education% training% and e#perience could reasona+ly e#pect to earn.
+) 4hared parenting ' different calculation if you ha"e o"er 1*I o"ernights reduces income. D
118(1I)(a)
c) 6o1 to modify5 material change in circumstances
i) !hange in income (increase or decrease)
ii) !hange in li"ing e#penses
iii) One child ages out w@ multiple children co"ered +y child support
d) 9nds age of ma2ority or continuously attending high school through age of 1U.
e) amount of a child support order shall not +e construed to +e an amount per child unless specified
+y the district or admin. !t in the order.
f) child reaching ma2ority is a material change and reason for modification% +ut cannot automatically
end; ha"e to ser"e to modify.
8) State e1 rel. ;HS v. Baggett (-,3)
a) F is in prison and ] is whether F has to pay :>4 +ack for monies paid to M for support of child
and what should +e used as his gross monthly income for the purpose of figuring his child support
o+ligation +c F had no assets% and lacked a present income or real earning capacity due to his
incarceration in prisonS
1age *, of -1
Oklahoma Family Law
+) T! attri+uted to him a gross monthly income for child support purposes +ased on the minimum
wage for a -I h^r work week.
c) >Cs incarceration cannot +e e)uated w@ permanent physical or mental incapacity D118(+)(-)
d) 1arents ha"e a legal duty to support and educate their children and to pre"ent them from +ecoming
pu+lic charges
e) Maintenance of a minor child is an enforcea+le parental duty and it cannot +e shifted as a +urden
upon the shoulders of others
f) 6asic rule of e)uity 2urisprudence ; e)uity will refuse to lend its aid to one seeking its acti"e
interposition who has +een guilty of any unlawful or ine)uita+le conduct in the matter w@ relation
to which he seeks relief
g) >as +een recogni<ed that when an a+le +odied parent is "oluntarily unemployed or
underemployed% and% thus% has no income or a reduced income% it is proper to attri+ute to that
indi"idual for child support purposes either an actual monthly income +ased on the minimum
wage or an income +ased on what the person could earn
i) 4uch recognition is nothing more than acknowledgement that e)uity will normally not fa"or
reduction of a child support o+ligation where the parentCs financial condition is due to his@her
fault% or "oluntary wastage or dissipation of his@her talents and assets.
h) 9)uita+le concepts cannot generally +e applied to eliminate an incarcerated parentCs child support
o+ligation or that incarceration due to con"iction for criminal acti"ity may +e e)uated w@
"oluntary unemployment or underemployment for child support purposes.
i) !riminal acti"ity can foreseea+ly lead to incarceration and such acti"ity is o+"iously w@i an
indi"idualCs control.
i) 6ecomes a 2udgment once itCs due. 7f it isnCt paid it does not result in contempt% +ut still has to pay
U) Hees v. Hees (-,-) ; T! erred in calculating the modification +y e#cluding the "alue of FCs on;+ase
military housing from FCs income. D-, O4 *II1 D 118(9)(,)(e) specifies that Ffree housingG recei"ed
+y a parent in the course of employment% is an in;kind payment that Fshall +e counted as incomeG in
computing child support.
1I) 6a&#orth v. 6a&#orth (--,) ; kid recei"ed money from >Cs disa+ility "ia 4ocial 4ecurity
a) 7t is added to >Cs income for calculation% and is credited for o+ligatory payments
11) Smith v. Smith (--8)
a) More accurate method for calculating child support for income amounts +eyond the guidelines
chart ; as the com+ined income increase% the Y from the income decreases as to child payments
+) Three 1ony (ule ' no child needs , ponies e"en if the parents can afford such
1*) Berby v. Berby (-/,) ; when the parentCs com+ined income e#ceeds the child support guideline ta+le%
a su+stantial increase in one parentCs income is a material change of circumstances allowing re"iew of
an e#isting child support w@o a showing of change in childrenCs needs.
a) 0 significant change in income is material e"en where there is no change in childrenCs needs
+) =hen the com+ined income e#ceeds the ta+le% , factors are considered in the initial award5
i) childrenCs needs
ii) parentsC a+ility to pay
iii) 1rior standard of li"ing.
c) * steps in the process of a child support award modification5
i) There must ha"e +een a material change in circumstances
ii) Then% the mo"ing party must show that% under the facts% modification of the e#isting award is
warranted
d) OJ doesnCt ha"e a defined amount of what is a significant change in income to reach change in
circumstances ' discretion of ct
1,) Garcia v. Garcia (-/3)
a) F lost 2o+% not his fault. 4eeking to lower child support
1age *- of -1
Oklahoma Family Law
+) !t must look to particular circumstances in"ol"ed ? critical to determine whether the reduction in
income was in 8F or 6F
1-) Hedges v. Hedges (-$*) ; cannot use laches as a defense for not paying child support arrearages.
a) 6efore a claim will +e considered +arred +y laches it must +e shown that5
i) has +een an unreasona+le delay in the commencement of proceedings to enforce the claim and
ii) +y reason of this delay the P has +een materially pre2udiced.
+) >ere% that did not happen. P knew he owed the money% so the only thing that happened was he
owed more money.
c) .eed to find out if there was an agreement% when it was made% and if there were any arrearages at
that point% it would +e wai"ed +y agreement.
d) !annot contract against future child support% so all future child support from the date of the
agreement would still +e owed.
1/) =hat do we use to determine incomeS
a) Ta# return w@ all schedules attached and year;end paystu+ ' may pro"ide more info than a =;*.
1$) 7f self;employedS
a) Ta# returns% +usiness records% income statements and +alance sheets of company% e#penses ?
deductions.
13) !hild support is 2udgment as matter of law when it is incurred.
a) !an +e used as a lien against real prop automatically +ut will ha"e to +e re"i"ed after / yrs.
+) 0limony can only +e a lien against real prop if you get a ct order to do so
18) 9nforcement mechanism for arrearage
a) !ontempt
+) 7ncome assignments are re)C^d as a matter of law.
c) :>4 collection ' a+ility to intercept ta# returns.
d) Aniform 7nterstate Family 4upport 0ct
e) 1assports can +e denied and ineligi+le for food stamps (if o"er /J)
f) 4tate license can +e re"oked if child support is not paid 1rofessional licenses% dri"erCs licenses%
fishing licenses.
1U) -, O4 11* - child support must +e paid through the age of 1U unless continuously attending high
school at which time child support must +e paid through the age of *I. There can +e no ct ordered
child support past the age of emancipation% unless the child is still in high school.
*I) Multi;4tate 0limony and !hild 4upport
a) A7F40 ' Aniform 7nterstate Family 4upport 0ct $I1;1II@,1U ' adopted in all /I states
i) 1urpose5
(1) pre"ent forum shopping
(*) allows for continuing e#clusi"e 2urisdiction to original issuing state
(a) until e"eryone is out of the 2urisdiction or if someone is still in 2urisdiction +ut ha"e
written consent for another state
(,) a"oids inconsistent orders
(-) guide in modification of orders
ii) >ome state ; where child has li"ed prior $ months +efore filing of petition
iii) 9#clusi"e continuing 2urisdiction ; if issuing state loses that% ne#t state that enters an order
now has e#clusi"e continuing 2urisdiction.
i") Look at original +asis for 2urisdiction ' pro+a+ly where kids are% +ut make sure you ha"e
personal 2urisdiction o"er F.
(1) 7f no personal 2urisdiction o"er dad% has to go where dad is.
") 9#5 .ew order in MT where F li"es. .ow F mo"es +ack to OJ. OJ cannot resume 2urisdiction
automatically.
"i) 0lways retain the a+ility to enforce the orders that originated in our state.
"ii) 0ct applies to esta+lishment or modification of child support orders and enforcement.
1age */ of -1
Oklahoma Family Law
"iii) $I1;*I3% *I$ read and understand.
i1' "ead )ages FG0-FGF and no# #ell for e1am
+) Po#ers v. ;istrict Court of !ulsa (-8*) ' = mo"ed +ack to OJ +c > was a+usi"e and didnCt want
= li"ing w@ him.
i) :o not ha"e to list all facts pertinent to 2urisdiction
ii) 1ersonal 2urisdiction uses Minimum !ontacts Test
iii) :omestic "iolence itself is not enough to get personal 2urisdiction for non;residents +ut% when
the +eha"ior directs where the mom and child will li"e M long;arm 2urisdiction
c) Bno#lton v. Bno#lton (-U/) ; 0 tri+unal of this state issuing a support order consistent w@ the law
of this state has Fcontinuing ? e#clusi"e 2urisdictionG (Bu&& #ords) o"er a child support order5
i) 0s long as this state remains the residence of the o+ligor% the indi"idual o+lige% or the child for
whose +enefit the support order is issued or
ii) Antil all of the parties who are indi"iduals ha"e filed written consents w@ the tri+unal of this
state for a tri+unal of another state to modify the order and assume continuing% e#clusi"e
2urisdiction.
iii) M ? kids li"ed in !O ? F was li"ing in !0. OJ lost 2urisdiction when all parties mo"ed out
d) Moore v. Moore (-U8)(not read but discussed) ; child does not ha"e standing to +ring an action
against parent to collect child support arrearage. 1ayment of arrearage can +e assumed a payment
to reim+urse custodial parent for support of children% rather than a payment for +enefit of children
themsel"es
e) ;avis v. ;avis (-UU)(not read but discussed) ; 0ttempt to assert his ad2udication of guilt on a
contempt citation must not stand% as 0ppellant was not shown to ha"e willfully diso+eyed the ctCs
order w@ regard to non;payment of support +y clear ? con"incing proof.
i) 7na+ility to manage oneCs finances does not take a non;paying parent out of FwillfullyG
diso+eying the ct order for support.
ii) 0 party may +e ad2udged guilty of indirect contempt where it is shown the contemnor
FwillfullyG diso+eyed order lawfully issued or made +y ct.
iii) F=illfulG ; defined as something done w@ specific intent to fail to do something the law
re)uires to +e done.
i") 7n defense% it may +e shown the contemnor was una+le to comply w@ ctCs order and that an
honest effort was made to comply% which showing will e#cuse non;compliance.
") 7f non;compliance w@ ctCs order is through no fault of the contemnor% then non;compliance w@
ctCs order is e#cused.
"i) >ere% 0ppellant admitted he knew that he was under ct order to pay his e#;spouse support.
"ii) Further% it was shown that during the time he made no payments he had +ought a new house%
car and furniture. These acts e"ince a clear and willful disregard for the ctCs orders.
"iii) :ifference +@t criminal and ci"il contempt. !ritical feature that determines whether the
remedy is ci"il or criminal in nature5
(1) whether the contemnor can a"oid the sentence imposed on him% or purge himself of it% +y
complying w@ terms of original order. .OT when or whether the contemnor is physically
re)Cd to set foot in a 2ail.
(*) 7f criminal ' many :1 protections of crim pro apply
(a) P would ha"e to +e pro"en guilty +eyond a reasona+le dou+t.
(+) 6o1 for showing an intentional "iolation of the ctCs order is on prosecutor.
i#) 1erson can purge contempt +y5
(1) Making all future payments for child support% day care e#penses and unreim+ursed
medical% dental% orthodontic% psychological% optometric% or any other physical or mental
health e#penses as re)Cd +y current order for child support and%
(*) paying the full amount of the arrearage% or some portion thereof% as a lump sum if ct
determines the contemnor has the financial a+ility to do so% and
1age *$ of -1
Oklahoma Family Law
(,) if the full amount of the arrearage is not paid in a lump sum% then +y making additional
monthly payments in amount e)ual to [ of the current monthly child support o+ligations.
*1) George v. State (/I,) ' !riminal contempt. 0+andonment of minor children. :idnCt pay child support
and called kids *# in 3 yrs.
a) Lury properly found the necessary elements and app ct is not going to o"erturn. !riminal action for
willfully neglecting children. , yr sentence. !t said actions show willful actions. 4tarted reducing
child support payments as e#;= got closer to nursing school grad ? stopped paying altogether
**) State e1 rel ;e)Et of Human Serv. 4. Palmer (/I$) ' F got compensation from radiation e#posure at
work. Money was sei<ed and applied to a single child support that was unpaid.
a) !t is allowed to sei<e and apply FCs compensation
+) 0ssignment and transfer prohi+itions are intended to protect A.4. go"Ct not the parties protect
from multiple claimants seeking to enforce claims that had no real relationship
c) They had specific e#ceptions% so shows they didnCt intend any more% so canCt 2ust e#tend
*,) A7F40 ' Aniform 7nterstate Family 4upport 0ct.
a) 6ases for 2urisdiction o"er nonresident; D $I1;*I1
i) 7n a proceeding to est% enforce or modify a support order% a tri+unal of this state may e#ercise
personal 2urisdiction o"er a nonresident indi"idual or indi"idualCs guardian or conser"ator if5
(1) 1ersonal ser"ice w@i the state
(*) 4u+mits to 2urisdiction +y consent +y entering a general appearance% or +y filing a
responsi"e document ha"ing effect of wai"ing any contest to personal 2urisdiction
(,) 7ndi"idual resided w@ the child in the state
(-) 7ndi"idual resided in this state and pro"ided prenatal e#penses or support for the child
(/) !hild resides in this state as a result of the acts or directi"es of the indi"idual
($) indi"idual engaged in se#ual intercourse in this state and the child may ha"e +een
concei"ed +y that act of intercourse
(3) indi"idual asserted parentage in the putati"e father registry maintained in this state +y the
appropriate agency or
(8) is any other +asis consistent w@ constitutions of this state and the A.4. for the e#ercise of
personal 2urisdiction.
+) D $I1;*I/
i) 0. !ontinuing% e#clusi"e 2urisdiction ' tri+unal of this state issuing a support order consistent
w@ law of this state has continuing% e#clusi"e 2urisdiction o"er a child support order5
(1) 0s long as this state remains the residence of the o+ligor% the indi"idual o+lige% or the child
for whose +enefit the support order is issued or
(*) Antil all of the parties who are indi"iduals ha"e filed written consents w@ the tri+unal of
this state for a tri+unal of another state to modify the order and assume continuing%
e#clusi"e 2urisdiction.
ii) 6. tri+unal of this state issuing a child support order consistent w@ law of this state may not
e#ercise its continuing 2urisdiction to modify the order if the order has +een modified +y a
tri+unal of another state pursuant to a law su+stantially similar to this act.
iii) !. 7f a child support order of this state is modified +y tri+unal of another state pursuant to a
law su+stantially similar to this act% tri+unal of this state loses continuing% e#clusi"e
2urisdiction w@ regard to prospecti"e enforcement of order issued in this state and may only5
(1) 9nforce the order that was modified as to amounts accruing +efore the modification
(*) 9nforce non;modifia+le aspects of that order and
(,) 1ro"ide other appropriate relief for "iolations of that order which occurred +efore the
effecti"e date of the modification.
i") :. tri+unal of this state will recogni<e continuing% e#clusi"e 2urisdiction of tri+unal of another
state that has issued a child support order pursuant to law su+stantially similar to this act
1age *3 of -1
Oklahoma Family Law
") 9. temporary support order issued e# parte or pending resolution of a 2urisdictional conflict
does not create continuing% e#clusi"e 2urisdiction in the issuing tri+unal.
"i) F. tri+unal of this state issuing a support order consistent w@ law of this state has continuing%
e#clusi"e 2urisdiction o"er a spousal support order throughout e#istence of the support
o+ligation. Tri+unal of this state canCt modify a spousal support order issued +y a tri+unal of
another state ha"ing continuing% e#clusi"e 2urisdiction o"er that order pursuant to law of that
state.
c) D $I1;$11 Modification of child support order of another state
i) 7f 1 state looses e#clusi"e and continuing 2urisdiction% the ne#t state that o+tains 2urisdiction
has e#clusi"e and continuing 2urisdiction. >a"e to look at where the kids are% whether we ha"e
personal 2urisdiction o"er F.
ii) 0lways retain a+ility to enforce orders that were originally made in our state. For instance if
made in one state and modified in another then OJ can enforce the original order.
iii) 7f 1 party stays in original 2urisdiction then that 2urisdiction retains e#clusi"e and continuing
2urisdiction.
(1) Anless all parties consent to another 2urisdiction. 7f decree is registered in another
2urisdiction then that 2urisdiction can enforce the order% +ut not modify.
*-) A7F40 ; !ustody and &isitation
a) O.4. D 1I3., 1roceeding for :isposition of !hildren
i) 0.1 7n any proceeding when custody or "isitation of a minor child or children is contested +y
any party% court may appoint an attorney as guardian ad litem upon motion of ct or upon
application of any party to appear for and represent the minor children.
ii) *. The guardian ad litem may +e appointed to o+2ecti"ely ad"ocate on +ehalf of the child and
act as an officer of the ct to in"estigate all matters concerning the +est interests of child. 7n
addition to other duties re)Cd and specified +y ct% a guardian ad litem shall ha"e the following
responsi+ilities5
(1) re"iew documents% reports% records and other information T..
iii) 6. =hen prop% separate maintenance% or custody is at issue% the ct5
(1) 1. May refer the issue(s) to mediation% if feasi+le% unless there is domestic "iolence or
child a+useT may still use mediation if5
(a) professional mediator has training concerning effects of domestic "iolence or child
a+use "ictims.
(+) 1arty who alleges to +e "ictim of domestic "iolence is capa+le of negotiating w@ other
party in mediation w@o suffering an im+alance of power
(c) mediation process contains appropriate pro"isions and conditions to protect against an
im+alance of power +@t parties resulting from alleged domestic "iolence or child a+use.
(*) *. ct may order in addition to or in lieu of a guardian ad litem% that each of the parties
undergo indi"idual counseling in a manner that the ct deems appropriate% if the ct finds that
the parties can afford the counseling.
(,) False allegations of child a+use or neglect if confirmed; 1) ct can find the accusing party in
contempt for per2ury and refer for prosecution *) consider the false allegations in
determining custody and ,) award the o+ligation to pay all ct costs and legal e#penses
encum+ered +y +oth parties arising from the allegations to the accusing party.
+) D 1IU. 6est 7nterest of !hild !onsidered in 0warding !ustody or 0ppointing 8uardian ' Loint
!ustody; 1lan 0r+itration. 6est interests of the physical% mental% and moral welfare of the child.
i) 4upposed to file plan w@ ct setting forth 2oint custody plan.
ii) !t can order sua sponte.
iii) 1lans set forth time w@ each parent% agreement as to +eha"ior around child% what the parties are
to decide 2ointly. .ot necessarily physical time +ut 2oint decision;making. 4et forth what
things are to +e 2ointly decided.
1age *8 of -1
Oklahoma Family Law
i") Termination of 2oint custody can +e re)uested or can +e ordered sua sponte.
") !an put ar+itration clause in 2oint custody plan.
c) D 1IU., !ustody of !hild ' 9"idence of :omestic 0+use; (e+utta+le 1resumption.
i) 7n e"ery case in"ol"ing custody of% guardianship of or "isitation w@ a child% the ct shall
consider e"idence of domestic a+use% stalking and@or harassing +eha"ior properly +rought
+efore it.
ii) 7f the occurrence of domestic a+use% stalking or harassing +eha"ior is estCd +y a preponderance
of the e"idence% there shall +e a re+utta+le presumption that it is not in the +est interest of the
child to ha"e custody% guardianship% or unsuper"ised "isitation granted to the person against
whom domestic a+use% stalking or harassing +eha"ior has +een estCd.
d) D 11I.1 1olicy for 9)ual 0ccess to Minor !hildren +y 1arents.
i) is policy of this state to assure that minor children ha"e fre)uent and continuing contact w@
parents who ha"e shown the a+ility to act in +est interests of their children and to encourage
parents to share in the rights and responsi+ilities of rearing their children after parents ha"e
separated or dissol"ed their marriage.
ii) To effectuate this policy% if re)uested +y a parent% ct shall pro"ide su+stantially e)ual access to
minor children to +oth parents at a temporary order hearing
(1) unless ct finds that such shared parenting would +e detrimental to such child.
(a) 6o1 on the parent re)uesting sole custody and the reason for such determination shall
+e documented in the ct record.
e) D 11I.* !ourt Order to 4u+mit to 6lood% 4ali"a% Arine or Other Test.
f) D 111.1 Order to 1ro"ide Minimum &isitation for .oncustodial 1arent ' &iolation or Order.
i) !ounty can ha"e standard "isitation schedule. :ifferent for different counties.
ii) 9nforcea+le +y contempt and if found guilty they shall pay fees.
iii) !odifies that "isitation is independent of child support issues
g) D 111.* Lia+ility and (emedies 0"aila+le =here 1erson .ot a 1arty to a !ustody 1roceeding
:enies 0nother of (ight to !ustody or &isitation.
i) !hild stealing statute.
ii) 1re"ailing parties pay.
h) D 111., 9nforcement of &isitation (ights of .oncustodial 1arent.
i) ]uicker than contempt action ' hearing set w@i , weeks (*1 days)
ii) Mediation e# parte; usually wai"ed.
iii) :isposition w@i -/ days.
i") Motion gi"e relief you want and mo"es faster and in egregious cases can change custody.
i) D 11* !are% !ustody and 4upport of Minor !hildren N&ersion *O
i) !hild support paid up through age of *I
2) D 11*.* !ustody% 8uardianship% &isitation ' Mandatory !onsiderations
k) D 11, 1reference of !hild !onsidered in !ustody or &isitation 0ctions.
ORIGINAL C031OD5 DECI3ION
1) Original !ustody :ecision
a) Gorham v. Gorham (/81) =hile the moral transgressions of the parties are to +e considered in the
T!Cs determination of what is in +est interest of child in a custody determination% the +est interests
of child are of paramount concern.
i) Mis+eha"ior attri+uted to M +y e"idence did not ha"e the re)Cd ne#us of detriment to the +est
interests of child.
ii) :eterminati"e factor must +e the effect of the )uestioned +eha"ior on the welfare of the child.
iii) To est an a+use of the T!Cs discretion% there must +e a showing that this re)uisite ne#us is
present and the +eha"ior is detrimental to the +est interests of child.
1age *U of -1
Oklahoma Family Law
i") Mo"ing party is re)Cd to show e"idence estCg a change of conditions and that this change +e
shown to ha"e a su+stanti"e effect on +est interests of child.
*) The (ole of the !hildCs 1reference
a) ;avis v. ;avis (not read) ' =hims@wants of a child are not controlling. 9"en though as they get
older% more deference to their opinion is gi"en% it is not controlling and is only one of the factors
+) 6elson v. 6elson (not read) ; 0 well;founded custody preference +y a child will support a change
of custody w@o proof of any other change in circumstances. !hildCs preference could +e material
change in circumstances that could meet 8i++ons standard.
,) .99: !049 V.!L0. &E =OO:=0(: (/U-)
-) 0lternati"e 0pproaches to :eciding !ustody Matters
a) Hornbec v. Hornbec ($1$) F re)uested L! (granted) +c M was relocating. May not +e the same
outcome w@ statute on mo"ing.
i) ]uestion of custody% 2oint or otherwise% must +e decided +y reference to conse)uences for the
particular child.
ii) 0n award of L! is a "ia+le alternati"e for cts to consider when fa"ora+le circumstances are
present so that it pro+a+ly will work.
iii) L! should +e considered on the +asis of the following factors5
(1) Likelihood of parental cooperation in matters affecting child
(*) !apacity to pro"ide e)ually +eneficial home en"ironments
(,) 4ituation wonCt +e unduly disrupti"e of other important aspects of childCs life (e.g. school)
(-) Gibbons case ; *;stage 6o1
(a) (1) must find the change in circumstances detrimentally affects +est interests of child.
(i) >ere% M mo"ing to MO would effecti"ely depri"e F of meaningful contact w@ child
(+) (*) whether the child would +e su+stantially +etter off if re)uested modification of
custody were ordered.
(/) !t will look to history of parties work together. 9"en if one party is against L!
i") !hange in location% solely% not enough for change in custody +ut% is important for "isitation
") >ow to set up L! plans for longer distance5
(1) 4chool yr "s. summer R "acation
(*) Tough% need to get more creati"e
/) ;unham v. ;unham ($*1) L! is at ctCs discretion
a) 9ssential factors5
i) There is some degree of cooperation +@t parties and at least a moderate amount of mutual
respect and trust
(1) 1i"otal point
(*) 4tart analysis here
ii) 0 capacity to pro"ide e)ually +eneficial home en"ironments (+oth parents are fit custodians)
iii) the situation will not +e unduly disrupti"e of other important aspects of the childrenCs life.
+) 7mportant +ut not essential5
i) 6oth parents must want to +e 2oint custodians
ii) 7f child is to li"e in * homes% shouldnCt pro"ide child w@ e#tremely different physical
en"ironments ' desire similarly situated (e.g. different religions in each house)
iii) 1 home should not +e too far from other
i") 7f L! will create additional e#penses% the parents should +e a+le to afford increased costs
") Z of children in"ol"ed and ages.
c) - types of L! plans5
i) long;term +lock term
ii) short;term +lock term
iii) +irdCs nest
i") free access
1age ,I of -1
Oklahoma Family Law
d) a+sence of parental conflict% +y itself% does not protect children. !an reflect dislike% disinterest%
apathy or +oredom. !an +e associated w@ emotional% economic and physical a+andonment.
!ooperati"e% ci"ili<ed co;parenting or parallel parenting relationship protects children.
$) Modification of Original !ustody :ecision
a) Title 1I D *1.1 1reference Order for !ustody or 8uardianship.
i) !ustody should +e awarded or a guardian appointed in the following order of preference
according to +est interests of child5
(1) 0 parent or to +oth parents 2ointly
(*) 0 grandparent
(,) 0 person who was indicated +y the wishes of a deceased parent
(-) 0 relati"e of either parent
(/) The person in whose home child has +een li"ing in a wholesome and sta+le en"ironment
including +ut not limited to a foster parent
+) Gibbons v. Gibbons ($*$) '
i) 8i++ons standard ; standard for custody modification in OJ.
ii) 6o1 is upon parent asking custody +e changed from the other parent to make it appear5
(1) since making of the order sought to +e modified% there has +een a permanent% su+stantial
and material change of conditions which directly affect the +est interests of the minor child
and% (must +e all , ' permanent% su+stantial and material)
(*) that% as a result of such change in conditions% the minor child would +e su+stantially +etter
off% with respect to its temporal ? its mental ? moral welfare% if the re)uested change in
custody +e ordered.
iii) =hile proof of change in conditions is a prere)uisite to modification of a custody decree% such
proof does not necessarily re) a modification.
i") mere fact that conditions ha"e changed since di"orce of parents is insufficient to est some
change in circumstances or slight change in conditions
(1) must +e a showing of material% permanent% and su+stantial change in the circumstances or
conditions of parties% affecting the welfare of children to a su+stantial or material e#tent%
the two issues +ecome closely intertwined.
") 8i++ons does not apply for L! termination ' standard there is +est interest of child. 7f it isnCt
working it needs to +e terminated.
"i) * ways to get to ct on a sole modification5
(1) 8i++ons
(a) =hen showing permanent% su+stantial and material change in a sole custody can only
hear last order of a ct
(+) !t must go +ack as if no decision has e"er +een made for L!
(*) 7f there were circumstances in place at time the ct could not ha"e known a+out and the
decision may ha"e +een different had ct known a+out it% thatCs a"aila+le to consideration
(a) Must show material facts +earing upon welfare ? +est interests of child were unknown
to ct at time order sought to +e modified was entered.
"ii) 4ole  L! M 8i++ons
"iii) L!  4ole M pro"e it is not working% go +ack to find out
c) &oluntary (elin)uishment
i) Carter v. Carter ($,I)(not read. but need to no# results) ; 8( as a matter of pu+lic policy% a
parent who% in the +est interest of child% relin)uishes custody in 8F +c he@she is temporarily
una+le to pro"ide for child should +e a+le to regain custody +y pro"ing the condition which
re)Cd relin)uishment has +een resol"ed.
(1) would +e most reluctant to gi"e us his child if he knew custody could not +e regained.
1age ,1 of -1
Oklahoma Family Law
ii) 1u+lic policy; encourage parents to make agreements to do right thing and work out pro+s w@
custody if 1 parent gets into a place where they know that it would not +e +est for child.
(1) B to 8( ; may +e applied if interim custody results in child +ecoming totally integrated
into home of parent w@ temporary custody. 7ntegration may arise +c of the nature or
duration of pro"isional custodial arrangement.
(a) :eterminati"e factors are5
(i) :uration of temporary custody
(ii) 7nclination of parties as to permanency of custody
(iii) 0ge of the child
1. !ustodial en"ironment of child is estCd if o"er an apprecia+le time child
naturally looks to custodian for guidance% life necessities% and parental comfort.
(*) 1ractice of temporary and "oluntary relin)uishment of custody to protect the +est interest
of child should +e encouraged +y returning custody upon resolution of condition that
precipitated relin)uishment. !hildCs +est interest is the paramount.
d) 1ro+lems of L!
i) 7oshee v. 7oshee ($,*) ' kids think they should continue L! plan
(1) !t always has authority to cancel L! plan if5
(a) 0sked +y a parent
(+) 4ua sponte
ii) 9ohnson v. Wingert ($,U) ' motion to modify +y >. wasnCt a L! arrangement +c decree wasnCt
written well.
(1) M had de facto custody "ia words and +eha"ior of parties
(a) Thus% M had standard for sole custody not L!% which is a higher standard
(+) :onCt need 8i++ons to modify an already est L! plan
iii) Bil)atric v. Bil)atric ($-/)
(1) :oesnCt re) termination of L! +c +oth parents seek it ' ctCs discretion
i") Hoog v. Hoog ($-8) ; change of circumstances ha"e to do w@ custodial parent% changes of
circumstances of non;custodial parent is not rele"ant.
") 4tandards for original custody decision; how to decide what is the +est interest of the childS
(1) Totality of circumstances. :onCt look at fault of di"orce unless detriment to child. :onCt
look at gender.
(*) Modify; su+stantial change of circumstances ' 8i++ons 4tandard.
(a) Material% su+stantial change of circumstance such that it would +e detrimental to child
not to change custody.
(+) Other option if there are facts not known at the time and could ha"e impacted original
decision. * prong test.
(,) .elson says that childCs preference could constitute a material% su+stantial change of
circumstance. !ould file a motion +ased on that still should couch it on 8i++ons standard.
(-) To get TO ha"e to ha"e motion to modify filed. Ander D 11I.
(/) Likewise if separated and something has occurred% then ha"e to file di"orce.
($) !t may ne"er see the pro+lems w@ sole custody (as much as L!) +c +urden is so high.
(3) 6o1 for change of "isitation is change of circumstances
(8) >a"e to ha"e an underlying action to support a TO. Motion to modify to support an
emergency order.
"i) !aylor v. !aylor ($/1) ; "isitation ? child support are separate and cannot deny "isitation
+ased on non;payment of child support.
(1) donCt change "isitation@custody for contempt% +ut if it is repeated% custody can +e changed
e) 4e# and the !ustodial 1arent
i) Wells v. Wells ($/,) ; kids o+2ected to li"e;in +oyfriend. >eld that prima facie case for change
of custody. 1roof called for an in;depth 2udicial assessment of fitness of MCs home% which the
1age ,* of -1
Oklahoma Family Law
children were compelled to share w@ her non;spousal mate. Lot of case law that +eha"ior of
mother would not +e +asis +ut if you can show some detriment to child.
(1) .eed some ne#us of detriment
(*) !t will not decide which morals are right
ii) Boatsman v. Boatsman ($//) FCs motion was +ased upon the MCs acti"ities and lifestyle
adopted su+se)uent to that decree% and FCs entitlement to relief must +e 2udged +y application
of the first test% i.e. that of change of conditions.
(1) F did not meet his 6o1 of the change of conditions. !hange of circumstances were not
pro"ed to +e permanent.
(*) 7n determining custody% T! is re)Cd to determine where the +est interests of the child lie at
the time of the initial decree. >ad +een litigated +efore% F argued it had not +c it was a
consent order.
iii) 7o1 v. 7o1 ($/8)(not read but discussed) ; same se# relationship in and of itself does not meet
6o1. .o proof that there was any harm to children.
i") Baiser v. Baiser ($$8)(not read but discussed) ; M got an offer from .040. Looses
opportunity +c T! says if she lea"es she looses custody. Moot +ut addresses it +c it might
come up again.
(1) !ustodial parent has right to decide resident of child. (elocation statute has +een passed
since this case% +ut doesnCt undo Jaiser. 8i"es pro"isions if it is done maliciously. .V
case that was cited in Jaiser FTunrealistic in some cases to try to preser"e the
noncustodial parentCs accustomed close in"ol"ement in the childrenCs e"eryday life at the
e#pense of the custodial parentCs efforts to start a new life or to form a new family unit.G
(*) >a"e to look at totality of circumstances
f) (elocation
i) Caber v. ;ahle ($38) ' L! or temporary custody is not sufficient enough to est a person as Fthe
person entitled to custody of a childG ' in order to deem them a+le to "iolate the principle
residence
ii) Harrison v. Morgan ($81) '
(1) Factors cts consider regarding proposed relocation5
(a) .ature% )uality% e#tent of in"ol"ement% and duration fo the childCs relationship w@
person proposing the relocation and w@ nonrelocating person% si+lings% and other
significant persons
(+) 0ge% de"elopmental stage% needs of child% and the likely impact the relocation will ha"e
on the childCs physical% educational% and emotional de"elopment% taking into account
any special needs of the child
(c) Feasi+ility of preser"ing the relationship +@t nonrelocating person and the child through
suita+le "isitation arrangements% considering logistics and financial circumstances
(d) !hildCs preference% considering the childCs age and maturity
(e) =hether there is an estCd pattern of conduct of the person seeking the relocation% either
to promote or thwart the relationship of the child and the nonrelocating person
(f) =hether the relocation of the child will enhance the general )uality of life for +oth
custodial party seeking the relocation and the child% including +ut not limited to
financial or emotional +enefit or educational opportunity
(g) (easons each person has for seeking or opposing relocation
(h) 0ny other factor affecting the +est interest of the child
(*) 6o1 for relocation5
(a) 1erson seeking relocation has 6o1 to show there is 8F and is in +est interest of child
(+) The 6o1 shifts to nonmo"ing party to show it is not in +est interest of child to relocate
iii) Galara&a ($U1% note ,) ' M w@held "ital info that she planned to mo"e in the future. =as +asis
to turn custody around +c a+used ct.
1age ,, of -1
Oklahoma Family Law
(1) 0lways ask if they ha"e plans to mo"e in the future
i") Car)enter v. Car)enter ($U*) ' F engaged in fraud +y knowingly offering per2ured testimony
of a material fact which was not known +y the ct at the time of itCs prior permanent custody
order
") Ste#art v. Ste#art ($U/) ' cannot go +ehind last ct order +c since it was ad2udicated
PAREN1AGE
3) Aniform 1arentage 0ct *II*;
a) 3 states ha"e adopted. 1ro"ides uniformity in determining paternity and litigate paternity.
+) :efinition of legal mother
c) :efinition of father
d) =ho can challenge statutes
e) =ho can +ring an act
f) 1resumption of paternity ; ,II days w@i termination of marriage there is a presumption that it is
product of marriage and that the F is the +iological F.
g) 7f li"ing together there is presumption there.
h) 7f F held himself out as F for * yrs M presumption.
i) 7f re+utting presumption you ha"e to go to ct and ad2udicating.
2) :efine le"el of :.0 match re)Cd to show certainty of paternity and chain of custody for sample
k) (emo"e time limit that child can +ring paternity action.
l) Lia+ility of F to support child.
m) M can seek reim+ursement of cost of pregnancy etc w@i , yrs of +irth.
n) !hild support can go +ack / yrs
o) 7f child is * yrs old can go +ack and get +irthing costs.
p) !t can deny option to get clarification of paternity of child +ased on +est interest of child.
8) 1ro+lem of 1resumptions
a) 7riend v. !esoro (33U) ' man failed to appeal w@i * yrs. :.0 said he wasnCt F
i) T! erred +y relying on the :.0 test and not applying the Aniform 1arentage 0ct
ii) !hallenges against a presumed F must +e +rought w@i * yrs of childCs +irth
U) 1ro+lems of 1reclusion
a) ;eloney v. ;o#ney (38*) ; 1resumption was in effect at this time. =hy can child come in and
attack after this had +een ad2udicatedS =hy claim preclusion nor issue preclusion +arred child
i) 4he was not a party to the original di"orce action.
ii) !hild has different interests than those +eing litigated there5 inheritance% health issues% etc.
iii) 1rimarily want to protect rights of children.
+) Cornelius v. Cornelius (38U) ; :ifferent +c most times the cases in"ol"e an attempt +y a F to
relitigate paternity in a su+se)uent proceeding to a"oid parental o+ligations (e.g. support)
ad2udicated in di"orce decree. >ere% F sought to est parental responsi+ility for child% not a"oid it.
i) OJ has allowed issue of paternity to +e litigated in a di"orce case w@o making the child a party
+c a = ordinarily has an interest in the )uestion of paternity that will ensure that paternity will
+e ade)uately presented to the ct.
(1) >ere% = did not ensure that the issue of paternity was ade)uately presented to the ct.
ii) !ourt of e)uity ' had no direct case law on this point w@ F actually seeking custody.
iii) 4oL does not apply to child% they can +e o"er 18 yrs old
1I) 1ro+lems of (esponsi+ility
a) Paternity of B.B. (3U$) F takes issue w@ T! finding that he is lia+le for child support% gi"en that% as
a matter of criminal law% he was too young to consent to se# w@ M when child was concei"ed.
i) 0n indi"idual who has +een legally determined to +e F of a child is lia+le for support and
education of child to the same e#tent as F of a child +orn in wedlock.
ii) !t ordered future and past due child support.
1age ,- of -1
Oklahoma Family Law
iii) 4upport payments are for the +enefit of the child% not the parent.
i") One who is in2ured +c of criminal conduct in which he willingly participated is not a typical
crime "ictim R e"ery child has a right to support from +oth parents.
") 9#acting child support under such circumstances does not "iolate pu+lic policy that protects
minors from se#ual e#ploitations +y adults.
11) 1arentage in .on;Traditional Families
a) Elisa B. v. Su)erior Court (8,$) ' les+ian partners inseminated. 9 holds then twins out has her
own and has supported them o"er * yrs.
+) held 9 was M and had o+ligation to support them
CHILD C031OD5 AND VI3I1A1ION
a) ,
rd
1arty !ustody
i) 8(5 .ot permanent parents ha"e constitutional right to raise their children and courthouse
door should always +e open w@ regard to custodial situations in"ol"ing parental rights.
ii) %))lication of Grover (3**) ' M died% her parents were guardians. F petitions for child.
(1) ,
rd
party must show affirmati"e unfitness on the parent +y clear ? con"incing e"idence
iii) %))lication of Smith (3*$)
(1) 8randmother argued that award of custody of minor child to step;F instead of her was an
a+use of discretion +y the ct.
(*) Apon the death of the custodial parent% the )uestion of custody of a minor child shall
always +e +ased upon what is in +est interest of child% and does not necessarily ha"e to go
in order of statute other than a +iological parent.
(,) The preferential order is guidance% not re)Ct.
(-) =hen custody of a minor child is an issue +@t * parties and neither one is a natural parent%
the issue is not to +e decided upon statutory order of preference alone in the e"ent +oth
contesting parties are deemed to +e fit and proper custodial parties.
(/) >ere the deceased M had stated she wanted the step;F to ha"e custody and child stated she
wanted to li"e w@ the step;F. 0lso% step;F had +een pro"iding a sta+le home en"ironment
and was a+le to pro"ide ade)uate care and guidance for child.
i") 9ohnson v. 9ohnson (3*8) ' M ? F get di"orced and agree fro grandparents to ha"e custody. M
seeks custody - yrs later
(1) =hen a parent% either +y a+andonment or contract (such as a decree of custody for ,
rd

party)% custody can only +e gi"en +ack to natural parents +y5
(a) 0greement
(+) Meeting 8i++ons standard (* prongs)
") Mc;onald v. Wrigley (3,1% note *)
(1) 0 grandparent must show +oth parents unfitness +y e"idence that is clear and conclusi"e to
o+tain custody in a di"orce proceeding% e"en on a temporary +asis o"er the o+2ection of a
parent. !t can inter"ene and grant temporary custody.
(a) Anfitness may not +e demonstrated +y a mere comparison +@t what is offered +y the
competing parties% +ut only +y a showing that parents cannot reasona+ly +e e#pected to
pro"ide for childCs ordinary comfort or intellectual and moral de"elopment.
(+) 4uch order must +e product of a hearing of which the parent had notice w@ the
opportunity to +e heard.
(c) order must include conditions found +y the T! to constitute parental unfitness. so the
parent knows what% if corrected% would amount to a change of condition to the ct.
(d) 0ll grandparental custody may properly +e considered temporary. :oors of the
courthouse remain open to parent who would show the conditions underlying the
declaration of unfitness ha"e +een corrected.
"i) Guardianshi) of %GS (3,1)
1age ,/ of -1
Oklahoma Family Law
(1) 8uardianship may +e terminated when the reasons for which it was estCd no longer e#ist.
(*) =hen the impediment to natural parentCs custody has +een remo"ed% guardianship is no
longer necessary unless its termination would +e unfa"ora+le to welfare of child.
(,) >ere% what was the impediment and would termination of the guardianship +e inimical to
the welfare of childS
(a) not really a new standard% the ct 2ust e#panded the original impediment to ensure the
child did not go +ack to the M.
(-) >as the impediment +een remo"edS
(a) ct held impediment had not +een remo"ed ' e#panded the possi+ility of incarceration
(which had +een remo"ed) to entire situation in"ol"ing +oyfriend. 4hould ha"e clearly
stated what impediment was% and how it could +e remo"ed.
+) 8randparents &isitation
i) Title 1I D /
(1) 6est interest of the child pursuant to : of this section% and
(a) Lo"e and affection is not enough
(*) There is a showing of parental unfitness or unsuita+ility or that the child would suffer harm
or potential harm w@o the granting of "isitation rights to grandparents of child
(a) F>arm or potential harmG ; showing w@o ct;ordered "isitation +y grandparent% childCs
emotion% mental or physical well;+eing could reasona+ly or would +e 2eopardi<ed% and
(+) F1arental unfitness or unsuita+ilityG includes a showing that a parent of child or a
person residing w@ parent
(i) >as a chemical or alcohol dependency% for which treatment has not +een sought or
for which treatment has +een unsuccessful%
(ii) >as a history of "iolent +eha"ior or domestic a+use%
(iii) >as an emotional or mental illness that demonstra+ly impairs 2udgment or
capacity to recogni<e reality or to control +eha"ior%
(i")>as +een shown to fail to pro"ide child w@ proper care% guidance ? support to the
actual detriment of child. 7nclude parental indifference ? parental influence on
his@her child or lack thereof that e#poses child to unreasona+le risk% or
(") :emonstrates conduct or condition which renders him@her una+le or unwilling to
gi"e child reasona+le parental care.
1. (easona+le parental care re)Cs% at a minimum% that parent pro"ides nurturing
and protection ade)uate to meet childCs physical emotional and mental health.
ii) !ro1el v. Granville (3-*)
(1) Li+erty interest of parents regarding the care% custody% ? control of their children is one of
the oldest of the fundamental li+erty interests recogni<ed.
(*) !t said statute unconstitutionally infringed on fundamental right to rear their children +c5
(a) was +reathtakingly +road
(+) contained no re)Ct that a ct accord the parentCs decision any presumption of "alidity or
any weight whatsoe"er and
(c) no allegation that M was an unfit parent.
(,) >ere% 4tate could disregard and o"erturn any decision +y a fit custodial parent concerning
"isitation whene"er a ,
rd
party affected +y decision files a "isitation petition% +ased solely
on 2udgeCs determination of childCs +est interests.
(-) Anless parents are found unfit% cannot grant ct;ordered "isitation to grandparents.
(/) 1resumption that a fit parent acts in +est interest of their kids. /
th
? 1-
th
amend argument
iii) 6eal v. 8ee (3/$) ; 7f operating o"er o+2ection of fit parents% grandparent "isitation may +e
imposed only upon a showing that the child would suffer harm or potential harm w@o it.
1age ,$ of -1
Oklahoma Family Law
(1) 8randparents did not allege unfitness. &ague generali<ation a+out positi"e influence many
grandparents ha"e on their grandkids falls far short of the necessary showing of harm that
would warrant stateCs interference w@ this parental decision regarding who may see a child.
(*) 8( ' threshold to modify or terminate is change in circumstances.
(a) change of circumstances re)Ct accords some degree of finality to factual and legal
determinations made in child custody matters which if a+sent would lead to constant
re;litigation of matters already determined.
i") TO ; maintain status )uo% if circumstances change; motion to modify TO pursuant -, D 11I
") $ngram v. Bni))ers (3/U) ; termination of an e#isting grandparental "isitation order +ased on
agreement of parties is not su+2ect to collateral attack in a modification proceeding +ut the
mo"ing party is re)Cd to show a change in circumstances ad"ersely effecting childCs +est
interest such that a change in "isitation would impro"e the childCs temporal% moral and mental
welfare.
(1) Maintained grandparentCs "isitation +c there was an agreement in place already.
"i) 1arental coordinator ; work w@ +oth parents to try to workout schedules in e"ent of conflicts.
1*) 1ro+lems w@ 7nterstate and 7nternational !hild
a) 1arental Jidnapping 1re"ention 0ct (1J10) ' fed act
i) 4ets procedures for enforcement of "isitation when parties are li"ing in different states.
ii) ha"e to honor foreign decrees unless "iolate human rights.
iii) (easona+le tra"el assessed against the parties +ut not against the states.
+) Aniform !hild !ustody Lurisdiction and 9nforcement 0ct (A!!L90)
i) go"erns di"orce ? dissolution of marriage% separate maintenance% neglect% a+use% paternity%
protecti"e proceedings in"ol"ing domestic a+use% termination of rights% and guardianship.
ii) 1urpose ' pre"ent forum shopping% uniform enforcement% pre"ent continual mo"ing
(1) 9#clusi"e and continuing 2urisdiction
iii) not apply intra;state +ut only interstate. &enue in state.
i") (elates to su+2ect matter 2urisdiction
") A!!L90 is not a personal 2urisdiction statute. 7t is considered a FnoticeG statute since we look
at where the children are at
"i) 7ncon"enient forum statute ' look at indi"idual stateCs re)Cts. -/ other states ha"e adopted.
(1) Those that ha"e not still ha"e A!!L0.
"ii) OJ was 1
st
state to pass A!!L90.
"iii) .ot apply to child support% adoptions% tri+al or childhood delin)uencies
i#) //1;*I1 ? //1;*I* *I,% *I-% *I3 ' Jnow and AnderstandW
#) >ome 4tate ' state in which a child li"ed w@ a parent or a person acting as parent of for at least
$ consecuti"e months directly +efore commencement of child custody proceeding.
#i) To analy<e5
(1) Original 2urisdiction '
(a) ]1 ; home stateS
(i) 7f in another state% current state must su+mit to it
1. Anless% that 2urisdiction% which is a home state% declines to e#ercise 2urisdiction
a. Lurisdiction would do so for e#ample5 +urden of "enue and other reasons
+. !t has discretion
(+) ]* ' if no home state% are there significant@su+stantial contactsS
(i) 6alancing of significant contacts
(ii) 7f you ha"e dueling issues% might come down to first;in;time% so who filed first
(iii) can decline for incon"enient forum
(i")if in another state% we must gi"e them chance to deny 2urisdiction
1. if so  we get 2urisdiction
1age ,3 of -1
Oklahoma Family Law
*. if not  they keep 2urisdiction
(c) if there is no home state or su+stantial connections@contacts5
(i) look K insignificant contacts which is where e"er the child is +asically
(*) Modification '
(a) ]1 ' is there a state w@ e#clusi"e ? continuing 2urisdictionS
(i) Only state that can is the one where the original order was issued
(ii) 7f they do% then 1 party still li"es there
(iii) !an +e challenged +y incon"enient forum
(+) ]* ' if there is no state w@ e#clusi"e ? continuing 2urisdiction% +ack to original
2urisdiction analysis
(i) 4tate loses e#clusi"e ? continuing 2urisdiction +y5
1. .on one li"es there anymore
*. 0greed in writing and ac)uiesced +y parties
(c) who has the right to modify a custody orderS
(i) court w@ e#clusi"e ? continuing 2urisdiction.
(ii) 7f same state no A!!L90 issue.
(iii) 7f original order is in OJ ? all parties lea"e% how do we determine who has
2urisdictionS
1. 7s there a state w@ e#clusi"e ? continuing 2urisdictionS
a. 7f yes  done unless it declines to hear matter +c of incon"enient forum.
+. Then we start as if it is an original action.
c. =ho do we defaultS
i. state that could make original decision as if there were no prior order.
ii. 8o +ack to home state of child. 7f there is a home state% etc.
(,) For purposes of protection% another ct can issue order% +ut the state w@ final 2urisdiction has
final authority.
c) May v. %nderson (/13) ; M mo"es to Ohio from =7 w@ kids. F files suit in =7 for di"orce and
custody. ser"ice of process upon appellant consisted of deli"ery to her personally in Ohio% of a copy of
=7 summons and petition.
i) 7ssue ; whether a ct of a state% where a M is neither domiciled% resident nor present% may cut off
her immediate right to care% custody% management and companionship of her minor children w@o
ha"ing 2urisdiction o"er her in personamS
(1) Full faith ? credit does not ha"e to +e e#tended if there was not personal 2urisdiction in the
first place.
d) Holt v. ;istrict Court (/*1)
i) Ander A!!L0 puniti"e orders need not +e enforced +y sister states% +ut temporary custody orders%
+c of their temporary nature% should not +e deemed puniti"e.
ii) Mere physical presence does not amount to significant contacts
iii) There are , grounds on which a ct must or should decline to e#ercise 2urisdiction5
(1) =hen at time of filing petition a proceeding co"ering the custody of child was pending in a ct
of another state e#ercising 2urisdiction su+stantially in conformity w@ this act
(*) =hen state is an incon"enient forum
(,) =hen petitioner has snatched child% improperly retained custody after "isitation or engaged in
similar reprehensi+le conduct.
i") 9mergency 2urisdiction pro"ision ; ct which is competent to decide child custody matters has
2urisdiction to make a child custody determination +y initial or modification decree if5
(1) child is physically present in this state and
(*) it is necessary in an emergency to protect child +c they ha"e +een
(a) su+2ected to or threatened w@ mistreatment or a+use or
1age ,8 of -1
Oklahoma Family Law
(+) is otherwise neglected or dependent.
(,) 7t is reser"ed for e#traordinary circumstances and must not +e misused to defeat purposes of
the act% +ut it retains and reaffirms states responsi+ility to children in need of immediate
protection
(-) 9"en if e"idence shows need for a protecti"e order% ct still cannot o"errule or modify the
original ct order.
(a) (ather% it should stay enforcement of the Oregon ct order% make such temporary
custody order as is needed and re) parent to su+mit the matter to the Oregon ct w@i a
definite time period.
(+) Then if there is a pro+lem% it can +e finally resol"ed +y home ct% which is e)ually well
suited to remedy any potential a+use.
e' See "ector case at H:F for overvie#
f) GS v. E#ing p. -$*. Once an OJ court enters a custody order% it has continuing 2urisdiction to modify
the order. 0 person seeking to modify a custody pro"ision must petition the decree state for relief.
Lurisdiction is lost only if +oth parents ha"e left the state% or if the resident parent has discontinued
relations with his@her child@children. 0lthough the 2urisdiction of the decree state is e#clusi"e% a trial
court has discretion under 1I O4 D1$IU to decline to hear a case if OJ is an incon"enient forum% and
if some other stateCs 2udicial system would +e +etter suited to hear the case. 0 finding of forum non
con"eniens might +e appropriate if the resident parent has cut all connections with his children. >ere%
the OJ T! was a proper forum to hear the cause +ecause the parental +ond has +een maintained% and
su+stantial e"idence relating to custody is located in OJ. 0ssumption is that if someone is still in
issuing state then that state will ha"e 2urisdiction. Forum non con"eniens might +e appropriate if the
resident parent has cut all connections with his@her children. >ard to get there now with A!!L90.
g) Boch v. Boch p. -$U >ague !on"ention on !i"il 0spects of !hild 0+duction. :esigned to protect
children internationally from the harmful effects of their wrongful remo"al or retention and to
esta+lish procedures to ensure their prompt return to the 4tate of their ha+itual residence% as well as to
secure protection for rights of access.
i) !on"ention does not define ha+itual residence +ecause they wanted to a"oid technical definitions
and instead use the e"ery day meaning of the word and to emphasi<e the determination was largely
one of fact.
(1) >a"e +urden of showing +y a preponderance of the e"idence that the remo"al was wrongful.
7f she meets this +urden% the +urden shifts to :ane to esta+lish one se"eral affirmati"e defenses
including that 0ntonia was not actually e#ercising her right of custody at the time of remo"al
or retention% or had consented to or su+se)uently ac)uiesced in the remo"al or retention.
ii) >a+itual residence connotes actual residence plus some continuity and persistence e"en though it
does not connote the intended permanence or emphasis on e#pressed intent often associated with
domicile. 1olicy underlying the concept of ha+itual residence is to +oth pre"ent unilateral
remo"als of children +y one parent and to identify the place where the children are settled and
where recent information a+out the )uality of family life is a"aila+le.
(1) 8enerally speaking a child will +e found to +e ha+itually resident in a country if he or she has
+een li"ing there for a sufficient period of time. (e2ected interpretation that ha+itual residence
should take in account intention of parties to a+andon a pre"ious ha+itual residence.
iii) 1olicy is to pre"ent the unilateral remo"al of children +y one parent and to identify the place
where the children are settled and where recent information a+out the )uality of family life is
a"aila+le.
i") 1urpose is to decide where 2urisdiction lies% not here the case on its merits.
") Mother had the +urden of showing +y a preponderance of the e"idence that the remo"al was
wrongful. 7f she meets this +urden% the +urden shifts to :ane to esta+lish one of se"eral
affirmati"e defenses
"i) 0ffirmati"e defenses to not ha"e the child go +ack to original 2urisdiction5
1age ,U of -1
Oklahoma Family Law
(1) consent +y the other party
(*) harm if they went +ack% specific to that child and his en"ironment
(,) waited too long to protest% presumed you wai"e the right to contest
(-) human rights ;; would the child +e su+2ected to sla"ery% a+use% etc.
h) Friedrich ". Friedrich. =hat is e#ercising custodial rightsS 7f a person has "alid custody rights to a
child under the law of the courtier of the childCs ha+itual residence% that person cannot fail to e#ercise
those custody rights under the >ague !on"ention short of acts that constitute clear and une)ui"ocal
a+andonment of the child. Four e#ceptions to not returning child are narrow.
1,) &1O. 4tatutory% each county may ha"e a different form. 4et up for lay people to help themsel"es.
0pplication ' donCt ha"e to pay when you file% can +e apportioned +y the court during the proceedings. 7f
applied for fri"olously% 1 can pay costs on it. -I.1 ? -I.* (ape and forci+le sodomy ' relati"ely new
addition to statute. Two acts added as e#ception to ha"ing to +e family relationship. (ecordkeeping.
!alls can +e recorded.
a) (easona+le person standard
+) 7nclude children if there is a threat of harm to them
c) 4tandard of proof5 7mmediate or present danger
d) 1rocedure 9# 1arte ' if not walked through% 2udgeCs re"iew in a stack and they mail out the orders so
donCt get the immediate protection the statute pro"ides. 7s supposed to +e heard on same day filed% +ut
+ecause of the "olute in OJ county% they re"iew a stack and mail out orders.
i) Must ha"e a show cause hearing within *I days of the e# parte order
e) 4tate wide "alidity
f) &1O period not to e#ceed three years
g) !an +e modified prior to that +y filing a motion ;; Modification of &1O can +e heard when there is a
change of circumstances
h) 1arty owning house can +e thrown out (that is why it says that this doesnCt affect title to property)
i) Temporary order stays in place until final hearing of di"orce% for instance.
2) 0ppeal goes to !ourt of !riminal 0ppeals ' top le"el% canCt go to 4!
k) $I.1 definitions. 6urden of proof for harassment 'The course of conduct must +e such as would cause
a reasona+le person to suffer su+stantial emotional distress% and must actually cause su+stantial
distress to the person.
i) !hild of 1, or o"er can ha"e a &1O against them
ii) 7f child in"ol"ed; e#pedited process.
iii) 0ddition of spouse of e#;spouse. 6io;parents
l) $I.* ' 1rotecti"e Order ' 1etition Form 1reparation.
i) 4talking does not ha"e to +e family relationship ' ha"e to ha"e filed a police report.
m) $I., ' filed in county where "iolence occurred as well as where 1 ? : li"e.
n) $I.- ' if di"orce action pending all gets heard at one time. Temporary &1O stays in place.
o) 9# parte ' must ha"e a show cause hearing w@in *I days.
i) 0d"ise clients to include children if there is a threat of "iolence to children.
ii) !ourt cannot order mutual &1O ' ha"e to file separate petition; due process ' $I.-L1
iii) Must show immediate and present danger.
p) 0ppeal of "po; court of criminal appeals.
1-) Two ma2or types of 0greements
a) 4eparation 0greement ' in contemplation of li"ing separate ? apart% e)ui"alent to a contract
i) 7f it is partially performed% the other side can enforce it. 4how intent to ha"e a "alid J% partial
performance is e"idence you intended it to +e a contractual agreement
ii) &oided if the parties reunite and li"e together again
iii) :oes not ha"e to +e filed with court to +e "alid +@c >?= pursuant to statute are free to J with
each other
i") (egular J defenses ' fraud% unconsciona+le% duress% undue influence% all could apply
1age -I of -1
Oklahoma Family Law
") Mediation settlements used to +e enforced in family ct.% +ut 0dams says that mediation agreement
is not an order of court and does not preclude your day in court. :ilutes strength of getting
mediation agreement
+) 0ntenuptial agreements. J made +efore marriage in contemplation of marriage which decides ahead
of time how property will +e di"ided and possi+ly other related matters in e"ent of death or di"orce.
!ourt will not honor custody ? child support if it conflicts with policy. Must ha"e consideration '
marriage is sufficient.
i) To consider "alidity5
(1) 7s fair and reasona+le pro"ision made for the party opposing the contractS (Fair ? &oluntary)
(*) 7f not% was a full% fair and frank disclosure of the other spouseCs worth made +efore e#ecution
of the contractS (Full :isclosure)
(,) 7f neither of the a+o"e% did the party challenging the contract in fact ha"e a generally accurate
knowledge of the otherCs worthS
(-) !annot +e against pu+lic policy ' no matter what.
ii) Griffin v. Griffin p. ,,* Fraud is ne"er presumed% and the party attacking the contractCs "alidity
must pro"e it and the party attacking the contractCs "alidity must pro"e it and the proof of fraud
must rise to the standard of clear and con"incing e"idence.
1/) 0ttorney Fees for Family Law Matters
a) 7agin p. UU 1rofessional resp. rules state that a lawyer shall not enter into an arrangement for% charge
or collect any fee in a domestic relations matter% the payment or amount of which is contingent upon
the result o+tained% other than to collect past due alimony or child support.
+) Wright v. %rnold p. 1I-. !annot charge a non;refunda+le retainer fee. 1.1$ pro"ides that upon
termination of representation% a lawyer shall take steps to the e#tent reasona+ly practica+le to protect a
clientCs interests% such as refunding any ad"ance payment of fee that has not +een earned. 0 client has
a right to discharge a lawyer at any time% with or without cause% su+2ect to lia+ility for payment for the
lawyerCs ser"ices.
c) Gardner v. Garnder p. -,-. =here there are sufficient funds and property to pay attorneyCs fees% then
each side should pay their own attorneyCs fees and e#penses of litigation.
d) 7inger v. 7inger p. /U$ D11I pro"ides that on granting a di"orce in fa"or of the wife or the >% court
may re)uire > or = to pay such reasona+le e#penses of the other in the prosecution or defense of the
action as may +e 2ust and proper considering the respecti"e parties and the means and property of
each pro"ided further% that the court may in its discretion make additional orders relati"e to the
e#penses of any such su+se)uent actions for the enforcement or modification of any final orders in the
di"orce action.
i) = had to pay her own atty fees in a child support modification hearing +rought +y Father. =ould
ha"e a chilling effect on a parentCs willingness to initiate proceedings for modification of custody
su+se)uent to the original decree of di"orce% e"en when the other parentCs actions are detrimental
or contrary to the +est interests of the child or children in"ol"ed. !ourt should take into account
the totality of the circumstances when ad2udicating motions for fees and costs incurred +y a party
either prosecuting or defending post;decree enforcement or modification proceedings.
1$)
13)
1age -1 of -1