VARBEL v. VARBEL

OSCN Found Document:VARBEL v. VARBEL

OSCN navigation

Home

Courts

Court Dockets

Legal Research

Calendar

Help

Previous Case

Top Of Index

This Point in Index

Citationize

Next Case

Print Only

VARBEL v. VARBEL

2014 OK CIV APP 25

321 P.3d 1012

Case Number: 110078

Decided: 02/14/2014

Mandate Issued: 03/14/2014

DIVISION I

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

Cite as: 2014 OK CIV APP 25 , 321 P.3d 1012

IN RE THE MARRIAGE OF AMANDA MARIA VARBEL, NOW PATTISON, AND

BRICE DUANE VARBEL:

AMANDA MARIA VARBEL, NOW PATTISON,

Petitioner/Appellee,

v.

BRICE DUANE VARBEL,

Respondent/Appellant.

APPEAL FROM THE DISTRICT COURT OF KAY COUNTY, OKLAHOMA

HONORABLE W. LEE STOUT, TRIAL JUDGE

AFFIRMED

Jack De McCarty, MCCARTY & RIGDON, Newkirk, Oklahoma, for

Petitioner/Appellee,

Jarrod Heath Stevenson, STEVENSON LAW FIRM, P.L.L.C.,

Oklahoma City, Oklahoma, for Respondent/Appellant.

Wm. C. Hetherington, Jr., Vice-Chief Judge:

¶1 Brice Varbel (Father) appeals an order modifying previously entered terms

of a Decree regarding custody and his visitation with JV (Child). Father alleges

the trial court's custody modification is contrary to the best interest of Child

and violates statute by expressing a preference for public schooling. At the

outset, we must establish the nature of the matter before us.

¶2 Amanda Varbel (Mother) and Father wed on December 1, 2005, and Child was

born in September of 2006. On June 4, 2007, Mother filed a Petition for

Dissolution of Marriage and the marital union was dissolved in a Decree filed on

March 12, 2008. 1 Mother was restored to her maiden name, child

support calculations were made, and the parties' debts and property were

divided. The Decree provides Mother is "to remain as the primary custodian of

the minor child subject to [Father's] frequent and liberal visitation" pursuant

to an attached Kay County Standard Visitation Schedule and, when Child reaches

24 months of age, "a plan of shared parenting shall be initiated whereby each

party shall enjoy alternating weeks of visitation with the minor child with the

parties meeting in Stillwater, Oklahoma for the purpose of child exchange" and

no extended summer visitation is to occur "so long as the shared custody plan is

in place." In his Brief in Chief, Father states: "Both parties were found fit

and awarded joint custody," and the parties appear to have treated the schedule

of alternating visitation as a kind of joint custody.

¶3 The Decree contains provisions generally encouraging cooperation but does

not contain provisions addressing any form of shared decision making. Although

the above-quoted language refers to "shared parenting" and "shared custody,"

there is no joint custody plan as described in 43 O.S.Supp.2009 § 109 2 in the

appellate record. Consequently, we conclude the record does not support an

assertion the Decree established joint custody. Instead, it appears the Decree

provides for primary custody of Child with Mother, and what began as standard

visitation for Father became more extended visitation once Child attained age 2.

This distinction is important because it affects both what the parties needed to

demonstrate for a change in the Decree's original provisions and it affects our

review. 3

STANDARD OF REVIEW

¶4 Custody and visitation are matters of equity and are left to the sound

discretion of the trial court. Kahre v. Kahre , 1995 OK 133 , ¶ 19, 916 P.2d 1355, 1360 . "Accordingly,

unless we determine that the trial court's decision is clearly against the

weight of the evidence so as to constitute an abuse of discretion, it will not

be disturbed. Boatsman v. Boatsman , 1984 OK 74 , 697 P.2d 516 ." Williamson v.

Williamson , 2005 OK 6, ¶ 5 ,

107 P.3d 589, 591 . "An abuse of

discretion occurs when a decision is based on an erroneous conclusion of law, or

where there is no rational basis in evidence for the ruling." In the Matter

of BTW , 2008 OK 80, ¶ 20 , 195 P.3d 896, 908 .

¶5 As stated Fox v. Fox, 1995 OK 87 , ¶ 7, 904 P.2d 66 , 69:

The evidentiary requirements for a change of a permanent custody order

are well established. In Gibbons v. Gibbons , [ 1968 OK 77 ], 442 P.2d 482 (Okla.1968), we

held that the parent asking for modification must establish: 1) a permanent,

substantial and material change in circumstances; 2) the change in

circumstances must adversely affect the best interests of the child; and, 3)

the temporal, moral and mental welfare of the child would be better off if

custody is changed. Finding that the paramount consideration in awarding

custody on a motion to modify is what appears to be in the best interests of

the child in respect to its temporal, mental and moral welfare, and the

entire determination must be in light of what is in the child's best

interest, Gibbons was reaffirmed in David v. David , [ 1969 OK 164 ], 460 P.2d 116 (Okla.1969). In

David v. David , [1969 OK164, ¶ 8], 460 P.2d 116, 117 (Okla.1969),

we said, "The law is clear that in a hearing upon a motion to modify, the

burden is upon the applicant to show a substantial change in conditions

since the entry of the last order or decree which bears directly upon the

welfare and best interest of the child." And more recently in Gorham v.

Gorham , [ 1984 OK 90 ], 692 P.2d 1375 (Okla.1984), we

emphasized the necessity to show a direct and adverse effect on the child's

best interests.

¶6 "One who alleges error in the trial court's determination on visitation

must put forth the evidence upon which he relies and must affirmatively show how

the determination is contrary to the best interest of the child." K.R. v.

B.M.H. , 1999 OK 40, ¶ 18 , 982 P.2d 521, 524 . (Citation

omitted.) "The trial court is entitled to choose which testimony to believe as

the judge has the advantage over this Court in observing the behavior and

demeanor of the witnesses." Mueggenborg v. Walling , 1992 OK 121, ¶ 7 , 836 P.2d 112, 114 .

FACTS

¶7 The parties' current dispute began over Child's schooling. Mother, a

public school graduate, favors a public school education for Child. Father was

home schooled to an eighth grade equivalency and then was advanced enough to

enter public school at grade nine. He favors home schooling.

¶8 In April of 2011, Mother informed Father she wanted Child to attend a

Ponca City Public School System Pre-K program. Father opposed the enrollment,

told her he thought home schooling was best, and claimed it would cause his

visitation to be limited to weekends. Mother testified he became "a little

irate," she discontinued the conversation, and she told him, "Okay, well,

obviously we can't come to an agreement, so I'll just file a motion and bring it

to court." Father testified that when he tried to discuss public schooling

versus home schooling with Mother, she told him she would take him to court and

hung up on him. On the day after the April telephone conversation, Mother

enrolled Child in the Pre-K program which was to begin on August 10, 2011.

¶9 On June 13, 2011, Mother filed a Motion to Modify Decree of Divorce,

claiming a permanent, substantial and material change of circumstances affecting

the best interest of Child required a change in custody and visitation, namely,

Child's attainment of school age. In her motion, she seeks "full physical

custody" of Child and asks that Father be awarded visitation according to the

Kay County Standard Visitation Schedule provisions and in conjunction with

Child's educational enrollment in the Ponca City public school system.

¶10 In his response to Mother's motion, Father also claims there had been a

permanent, substantial, and material change of circumstances. He asserts Child

would be "unquestionably better off" if placed in his "full legal custody."

Father alleges Mother has "made every effort" to minimize his involvement in

Child's life and claims "[t]here are no factors that would justify" Mother being

"granted legal custody." 4

¶11 In a "Counterclaim For Legal Custody" filed on July 25, 2011, Father

alleges various reasons 5 Mother's custody of Child should be disfavored.

Father argues Child was enrolled in a public school Pre-K program by Mother so

as to minimize his involvement and that he and Child's paternal grandmother have

initiated an education plan for Child's transition to school. He also cites

efforts by Child's paternal grandparents (including their relocation near him

and the alteration of his father's work participation) which allow them to

provide care and educational assistance, the presence of other family members

near his location, how child has only been cared for by family members (as

opposed to day care) when with him, and his flexibility at work as factors

favoring his own primary custody of Child. He contends Child has thrived with

the current visitation schedule, he should have "full legal custody," and Mother

should be granted liberal visitation.

¶12 On August 9, 2011, the trial court conducted a scheduling hearing and

entered an interim order. A minute order for that date provides Father would

have visitation with Child every other weekend from Friday at 6 p.m. until

Sunday at 6 p.m.

¶13 Hearings on Mother's motion to modify began on August 30, 2011, and were

completed on October 6, 2011. At completion of the first phase of hearing,

following a request by Father's counsel and without any objection by Mother, the

trial court appointed a guardian ad litem. Father's counsel then noted the

parties were off record at the time of entry of the August 9, 2011 interim order

and renewed an objection to the interim order, claiming it had allowed Mother to

"unilaterally" change the visitation schedule. When stating the objection,

counsel also claimed Father had offered a solution on August 9, 2011, which

would allow Child to keep on track with home schooling which had been overruled

by the trial court. At the close of the first phase of hearing, the trial court

ordered Father to have visitation every weekend.

¶14 During hearings, the trial court heard testimony about the parties'

handling of issues such as social interactions, activities, and nutrition/meal

habits. The trial court also heard testimony about the parties' respective

educations, employment, and work schedules. The trial court heard other evidence

relative to the issues raised in the counter motions for modification.

¶15 Since age one, Child has attended day care when Mother was at work. After

the marital dissolution, Mother lived with her parents until April of 2010, when

they relocated to Louisiana due to her Father's job. For two years prior to that

time Mother dated Ted Rains (Rains), and when her parents moved, she and Child

began to live with Rains. She and Rains were not engaged or married. She takes

Child to school in the morning. Rains acts as a step parent and sometimes

transports Child for visitation exchanges in Stillwater, Oklahoma when Mother's

work schedule conflicts with the visitation schedule. He also picks child up

from day care after his work time when Mother's schedule prevents her from doing

so. Mother testified Child receives Sooner Care coverage for medical insurance

but had no other state assistance enrollment. Mother cited socialization as one

factor in favor of public school attendance. She provided as exhibits several

photographs of Child with other children, who Mother described some as "cousins,

[Rains's] side of the family, nieces and nephews." One photograph label

identifies the person with Child as "Grandma Lisa ([Rains's] Mom)."

¶16 Child's maternal grandmother, Debra S. Pattison (Pattison), testified she

moved in April of 2010 because the facility where her husband worked closed.

Since relocating, she had visited Mother and Child three to five times, most

recently in May of 2011. She felt Rains was "a good guy," trusted him, and did

not feel there was anything inappropriate about the way he related to Child.

Pattison reported Mother and Rains started dating when Child was about 18 months

to two years old. She did not know Child was being home schooled. From the time

of the Decree in 2008 until the early part of 2010, Pattison stated Mother had

used day care for Child only when she worked, and she sometimes had watched

Child when Mother worked or if she had to run an errand. Mother then rested.

¶17 Father testified that either he or his mother care for Child when she is

with him. Father previously trained for and obtained certification as a teacher

for grades 6 through 12, but he allowed the certification to lapse due to his

current employment. Father has had custody of another child, KV, who is about

two and a half years older than Child, since KV was about two years old. KV, who

has medical problems, is home schooled. Father describes KV and Child as "very

close." Father cites his work flexibility as allowing him to participate in

activities with Child and allowing him to promote Child's contact with

Mother.

¶18 Father put on fairly extensive evidence of the type of materials used for

the home schooling, which included materials from an accredited system, and

privately accumulated resources such as computer learning programs, flash cards,

books, and similar items. Father's mother, Elizabeth Varbel, a lawyer by

training, home schooled Father and his sister. She and Father provide home

schooling for KV and Child. She described various educational resources she uses

for home schooling. Child was age three and a half when she began teaching

letters and numbers. Father and his mother both testified they thought Child had

regressed educationally and they felt the Pre-K program was below Child's skill

level. Father's parents, his sister, and her husband and children live near him.

KV's grandmother and her husband are active in both KV and Child's lives.

¶19 The Guardian Ad Litem, Chris Landes (GAL), filed a report on October 6,

2011, the day hearing on Mother's motion reconvened. In his report he discounts,

contradicts, or finds irrelevant several factors Father cited in his opposition

to Mother's motion, finds both parties fit, states both have support systems to

help with caring for Child, and has no concerns about their respective homes.

GAL notes Child has thrived in the alternating visitation plan and recommends it

be continued. The GAL also testified, and he was questioned about his

observations and conclusions. GAL felt Child should be placed in Father's

primary care if the alternating visitation schedule was not used and the

placement would be in Child's best interest. He cited Father's ability to

provide additional visitation as situations arose.

¶20 Following hearing, the trial court modified the Decree 6 by placing primary custody

with Mother and providing for visitation by Father every weekend from 6 p.m. on

Friday until 6 p.m. on Sunday, any Federal or State Monday holidays are

considered part of the weekend with a 6 p.m. Tuesday return time, and the entire

summer vacation excepting two weeks in June and two weeks in July. Mother is

ordered to provide Father at least thirty days' notice of which two weeks she

has chosen and she may not choose consecutive two week periods such as last two

weeks in June and the first two in July. An attached Holiday Visitation Schedule

governs all other visitation 7 and sets up a summer visitation schedule if notice

is not given timely.

THE APPEAL

¶21 Father appeals, arguing the trial court's modification of the Decree

fails to make a determination in Child's best interest and it expresses a bias

or preference in favor of public schooling. He alleges Mother unilaterally

discontinued the system of alternating weeks of visitation in April of 2011 by

enrolling Child in a Pre-K program. The record does not support that assertion.

According to the evidence adduced at the hearings, Child's first day of

attendance at the Pre-K program was August 10, 2011, that is the day

after the trial court entered the interim order changing Father's visitation to

weekends and twenty days before hearings began on the Mother and Father's

respective motions.

¶22 Father also complained of a period when Mother did not keep to the

alternating week schedule due to Child's infection with head lice and the

failure of the first attempted treatments for the condition. The dates this

occurred were not elicited in the testimony.

¶23 Section 112(D)(1) of Title 43 provides that "[e]xcept for good cause

shown, a pattern of failure to allow court-ordered visitation may be determined

to be contrary to the best interests of the child and as such may be grounds for

modification of the child custody order." On its face, this statute recognizes a

pattern of conduct may serve as the basis for a custody modification, and

it also contains an exception allowing good cause to be shown for interrupting

visitation. "'Good cause' is determined by application of equitable principles."

King v. King , 2005 OK 4,

¶ 18 , 107 P.3d 570, 578 . The

record does not demonstrate a pattern of denial of visitation and good cause was

shown for the single episode of temporary denial of visitation.

¶24 Both parties cite Child's attainment of school age as a change of

condition. However, the mere fact there has been a change of condition since

entry of the last order, standing alone, is not sufficient for a change

of custody because, as cases have long recognized, the change also must

adversely affect a child's temporal, moral and mental welfare so as to

necessitate the trial court's alteration of the current custodial placement.

See, e.g., Daniel v. Daniel , 2001 OK 117 , 42 P.3d 863 ; Fox v. Fox , 1995 OK 87 , 904 P.2d 66 ; Pirrong v.

Pirrong , 1976 OK 36 , 552 P.2d 383 ; Owens v. Owens ,

1972 OK 26 , 494 P.2d 318 ; Gibbons v.

Gibbons , 1968 OK 77 , 442 P.2d 482 ; Johnson v.

Wingert , 2011 OK CIV APP

128 , 268 P.3d 145 . The

record does not support a conclusion Child has suffered an adverse effect

necessitating a change in the current custodial placement.

¶25 Father contends the trial court exhibited an impermissible preference for

public schooling over home schooling. His mother testified she had purchased the

Calvert home schooling system in June of 2011, Child had begun to use it, and if

the system, which was one approved by the State of Oklahoma, was used for two

years Child might have been allowed to skip a grade upon changing to public

school if she was ahead of her cohort in the public school. In other words, both

Father and his mother considered Child as capable of excelling. However, the

trial court also heard evidence that the public school system was considering

changes which would result in children attaining an even later age before

entering school, i.e., making a policy decision resulting in more

maturity at each subsequent grade level. The record shows the trial court

considered all the evidence concerning both educational approaches. As noted

above, primary custody in the Decree was placed with Mother. Cooperative

decision-making is a worthy and important goal, but as Child's primary

custodian, participation in the Pre-K program is within the purview of her

control. As Mother points out, Father testified he had planned to home school

Child only until first grade, only a short time beyond pre-school. However,

Father did qualify his plan as an "initial" one, subject to revision. Even so,

the selection of public school for early education by Mother is not demonstrated

to be adverse to Child's interest so as to qualify as a change of condition.

Father's job, which he has held since 2007, i.e. , before the marital

dissolution, may allow him more flexibility to facilitate visitation, but that

factor alone is insufficient to justify a change of custody under the

circumstances and it is not a change in the conditions post-dating the

Decree.

¶26 Lastly, Father raises an issue regarding alleged "violence" by Mother

towards KV, presumably occurring while the parties were married. The trial court

stopped the line of inquiry and refused to allow exploration of facts predating

the 2008 marital dissolution. As to "Rulings on Evidence," the Legislature has

provided, in 12 O.S.2011 § 2104

that:

A. Error may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of a party is affected,

and:

* * * * *

2. If the ruling is one excluding evidence, the substance of the evidence

was made known to the judge by offer or was apparent from the context within

which questions were asked.

Father did not make an offer of proof regarding excluded evidence of such

behavior by Mother nor did he attempt to elicit any evidence of more recent

events after the period excluded. We will not address an issue not properly

preserved. See Irwin v. Irwin , 1966 OK 146 , 416 P.2d 853 .

CONCLUSION

¶27 Father has not presented clear and convincing evidence of a change of

condition such that the order of the trial court is contrary to the weight of

the evidence and results in an abuse of discretion. The order is

AFFIRMED .

JOPLIN, P.J., and BUETTNER, J., concur.

FOOTNOTES

1

Contrary to the claim in Father's statement of facts in his Brief in Chief,

paragraph 3 of the Decree provides for payment of support. However, support was

not an issue raised at hearing and it is not an issue on appeal.

2 In

particular, the appellate record lacks a joint custody plan meeting the

requirements of 43 O.S.Supp.2001 §

109 which provide:

C. If either or both parents have requested joint custody, said parents shall

file with the court their plans for the exercise of joint care, custody, and

control of their child. The parents of the child may submit a plan jointly, or

either parent or both parents may submit separate plans. Any plan shall include

but is not limited to provisions detailing the physical living arrangements for

the child, child support obligations, medical and dental care for the child,

school placement, and visitation rights. A plan shall be accompanied by an

affidavit signed by each parent stating that said parent agrees to the plan and

will abide by its terms. The plan and affidavit shall be filed with the petition

for a divorce or legal separation or after said petition is filed.

D. The court shall issue a final plan for the exercise of joint care,

custody, and control of the child or children, based upon the plan submitted by

the parents, separate or jointly, with appropriate changes deemed by the court

to be in the best interests of the child. The court also may reject a request

for joint custody and proceed as if the request for joint custody had not been

made.

3 A

modification of initial placement of primary custody with one parent requires a

showing of a permanent and material change of conditions and that the child

would be substantially better off with the change. When joint custody is ended,

the trial court applies the "best interests of the child" test pursuant to 43 O.S.Supp.2009 § 109(A), just as

it would do in a first instance custody determination. Daniel v. Daniel ,

2001 OK 117, ¶ 21 , 42 P.3d 863, 871 .

4 As

described above, in making their claims and assertions, both parties mistakenly

characterize the custody order as a joint custody order.

5 Among

the reasons he cites are Mother's cohabitation with a man, alleged exposure to

tobacco smoke, and her lack of any immediate family in the area.

6 The

trial court entered other findings, including those regarding child support and

expenses for such things as child care and health costs, none of which are at

issue in this appeal.

7 The

schedule is tied to school schedules for Child and KV, her older

half-sibling.

Citationizer © Summary of Documents Citing This Document Cite

Name

Level

None Found.

Citationizer: Table of Authority Cite

Name

Level

Oklahoma Court of Civil Appeals Cases

Cite Name Level

2011 OK CIV APP 128 , 268 P.3d 145 , JOHNSON v. WINGERT Discussed

Oklahoma Supreme Court Cases

Cite Name Level

1992 OK 121 , 836 P.2d 112 , 63 OBJ 2315, Mueggenborg v. Walling Discussed

2001 OK 117 , 42 P.3d 863 , 72 OBJ 3708, DANIEL v. DANIEL Discussed at Length

1966 OK 146 , 416 P.2d 853 , IRWIN v. IRWIN Discussed

1968 OK 77 , 442 P.2d 482 , GIBBONS v. GIBBONS Discussed at Length

1969 OK 164 , 460 P.2d 116 , DAVID v. DAVID Discussed at Length

1995 OK 87 , 904 P.2d 66 , 66 OBJ 2411, Fox v. Fox Discussed at Length

1972 OK 26 , 494 P.2d 318 , OWENS v. OWENS Discussed

1995 OK 133 , 916 P.2d 1355 , 66 OBJ 3771, Kahre v. Kahre Discussed

2005 OK 4 , 107 P.3d 570 , KING v. KING Discussed

2005 OK 6 , 107 P.3d 589 , WILLIAMSON v. WILLIAMSON Discussed

2008 OK 80 , 195 P.3d 896 , IN THE MATTER OF BTW Discussed

1976 OK 36 , 552 P.2d 383 , PIRRONG v. PIRRONG Discussed

1999 OK 40 , 982 P.2d 521 , 70 OBJ 1547, K.R. v. B.M.H. Discussed

1984 OK 74 , 697 P.2d 516 , Boatsman v. Boatsman Discussed

1984 OK 90 , 692 P.2d 1375 , Gorham v. Gorham Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 2104 , Rulings on Evidence Cited

Title 43. Marriage

Cite Name Level

43 O.S. 109 , Best Interest of Child Considered in Awarding Custody or Appointing Guardian - Joint Custody - Plan - Arbitration Discussed at Length