BILYEU v. BILYEU

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BILYEU v. BILYEU

2015 OK CIV APP 58

352 P.3d 56

Case Number: 112300

Decided: 05/14/2015

Mandate Issued: 06/10/2015

DIVISION IV

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

Cite as: 2015 OK CIV APP 58 , 352 P.3d 56

IN RE THE MARRIAGE OF:

JOSEPH BILYEU, Petitioner/Appellee,

v.

SHYLA BILYEU,

Respondent/Appellant.

APPEAL FROM THE DISTRICT COURT OF

MCCLAIN COUNTY,

OKLAHOMA

HONORABLE CHARLES GRAY, TRIAL JUDGE

AFFIRMED

Suzanne Woodrow-Snell, WOODROW-SNELL LAW OFFICE, Purcell, Oklahoma, and Betsy

Ann Brown, Norman, Oklahoma, for Petitioner/Appellee

Ann K. Hadrava, HADRAVA

LAW FIRM, P.L.L.C., Oklahoma City, Oklahoma, for Respondent/Appellant

P. THOMAS THORNBRUGH, JUDGE:

¶1 Shyla Bilyeu (Mother) appeals a divorce decree awarding primary physical

custody to Joseph Bilyeu (Father) with joint custody. On review, we find that

the district court did not abuse its discretion in decreeing joint custody. We

affirm.

BACKGROUND

¶2 The parties were married in 2006. Father filed for divorce in June 2011.

They have two minor children, aged nine and five at the time of the decree.

Father requested joint custody "unless it was untenable," and Mother requested

sole custody. The district court held trial for approximately five days on the

issues, and made the following findings/orders as part of the decree:

13. Joint Custody - In the above styled cause of action the

Petitioner [Father] has pled for joint custody. The court finds that both

parents are fit custodians for the minor children; the parties are able to

cooperate with each other the majority of the time concerning the children.

The minor children are well cared for when in the custody of either parent

and it is patently evident that each parent deeply cares for these children.

The parties do not live far apart from each other. The physical environments

of the two homes of the parties are not extremely different. This Court

believes the parties have a current and functional joint custody plan and

the visitation schedule is adopted. The Court further states the belief that

conflict between the parties has arisen over lack of specificity with the

Plan and therefore adopts the Cleveland County Standard Visitation Plan

regarding holidays, school breaks, and summer visitation. The Court hereby

vests the parties with joint custody of the minor children.

14. Primary Custodian - The Petitioner is hereby deemed to be the

primary custodian of the minor children. The primary custodian has the final

decision making authority in matters regarding the children such as what

school the children attend, medical providers and extracurricular [sic]. The

Petitioner shall only exercise his final decision making authority after

reasonable discussions with Respondent and due consideration of her input

and goals for the minor children as to the issue being considered. The minor

children have more stability in their lives; far greater familial, friends,

extracurricular and school contacts with Dibble area with the Petitioner

than that of the Respondent's home. There is a greater support group in

their current location from both the paternal and maternal sides of the

failed marriage.

Mother now appeals this custody decision, arguing that awarding joint custody

was an abuse of discretion, and requesting that she be awarded sole custody.

STANDARD OF REVIEW

¶3 Custody contests are of equitable cognizance, and although an appellate

court may examine and weigh the evidence, the findings and decree of the trial

court cannot be disturbed unless found to be against the clear weight of the

evidence or an abuse of discretion. Manhart v. Manhart , 1986 OK 12, ¶ 14 , 725 P.2d 1234 (weight of the

evidence); Davis v. Davis , 1960 OK 196, ¶ 0 , 355 P.2d 572 (Syllabus 1) (abuse of

discretion). This formulation, although commonly cited, becomes problematical if

it is interpreted as stating two different decisional standards.

¶4 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. Spencer v. Okla. Gas & Elec. Co ., 2007 OK 76, ¶ 13 , 171 P.3d 890 . We find no generally

accepted definition of the "clear weight of the evidence." It has further become

a familiar form of decision for the appellate courts to find that a domestic

decision was " neither against the clear weight of the evidence nor

an abuse of discretion" implying that the two standards are in some way

different, and have separate elements that must be met. 1

¶5 However, in Williamson v. Williamson , 2005 OK 6, ¶ 5 , 107 P.3d 589 , the Supreme Court

noted in a custody case that "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" (emphasis added). This

principle was previously stated in Miles v. Young , 1991 OK CIV APP 101, ¶ 29 , 818 P.2d 1258 (citing Gorham v.

Gorham , 1984 OK 90 , 692 P.2d 1375 ): "In an action of

equitable cognizance, such as this, we will weigh the evidence, but will not

disturb the trial court's judgment in the absence of abuse of discretion." Hence

we conclude that the "clear weight of the evidence" inquiry is part of the abuse

of discretion standard, and the generally accepted definition of an abuse of

discretion applies in custody cases. In custody cases, we will ordinarily give

deference to the trial court, who observes the demeanor of the witnesses. See

Fast v. Fast , 1989 OK CIV APP

31 , 787 P.2d 1288 ; Miles

v. Young , 1991 OK CIV APP

101 , 818 P.2d 1258 ;

Kilpatrick v. Kilpatrick , 2008 OK CIV APP 94 , 198 P.3d 406 .

ANALYSIS

¶6 Mother raises the following allegations of error and pleas for relief:

1. The trial court erred as a matter of law in awarding the parties joint

custody of the children given Mother's opposition and the weight of the

evidence showing immense hostility between the parties and their inability

to communicate, set aside differences, or engage in any joint

decision-making for the best interests of the children.

2. The District Court erred in failing to award sole custody to Mother

and by designating Father primary custodian given the weight of the evidence

of Father's misconduct throughout the proceedings and evidence showing

Mother was best able to provide a stable environment mentally, physically,

and financially for the children, she was primarily involved in their daily

activities, and tended to the children's medical and education needs.

3. The District Court showed arbitrariness and prejudice toward Mother

and undue bias toward Father by its decisions such that a remand to that

court for any part of this determination would be fundamentally unjust to

Mother. Therefore, Mother requests this equitable Court to exercise its

powers to render such judgment which the trial court should have by (1)

reversing the joint custody award and (2) awarding sole custody to Mother

based on the evidence before this Court.

I. HOSTILITY, COOPERATION AND JOINT CUSTODY

¶7 There are numerous statements by the Supreme Court and Court of Civil

Appeals on this subject, and harmonizing them all is difficult. It is made more

difficult by the fact that much of this case law involves modification of joint

custody post-decree , after the joint arrangement had been tested, away

from the immediate stress and hostility of a custody trial, and found

unworkable, rather than according to the standards for an initial custody

determination.

¶8 The lodestar by which a trial court must judge a custody contest is the

best interests of the child . We emphasize this language because this Court

has periodically observed divorce appeals based on the argument that a court is

legally barred by Supreme Court precedent from initially awarding joint custody

solely because the parents are hostile to each other.

¶9 These arguments are often based on "modification" cases, such as Foshee

v. Foshee , 2010 OK 85 , 247 P.3d 1162 , wherein the Supreme

Court noted: "When it becomes apparent to the court that joint custody is not

working and it is not serving the child's best interest, then a material and

substantial change of circumstance has occurred and the joint custody

arrangement must be vacated . " Id. , ¶ 15. We do not read Foshee

as indicating that mere conflict or personal dislike alone mandates that a

court award sole custody. Only when the situation between the parents has become

so bad that the child would be better off without input from both parents

regarding important life decisions is sole custody required.

¶10 We find it clear that some degree of opposition to joint custody by one

party does not alone render an initial joint custody decision an automatic abuse

of discretion. Hornbeck v. Hornbeck , 1985 OK 48 , 702 P.2d 42 , is clear that the trial

court's power to consider the alternative of joint custody when such an

arrangement clearly furthers the best interests of a child is not entirely

removed because one parent does not wish for joint custody. 2 This view is consistent with

Foshee , and with 43 O.S. 2011

§ 109(c). 3

The case of Rice v. Rice , 1979

OK 161 , 603 P.2d 1125 , notes,

"The question of custody, joint or otherwise, must be decided by reference to

the consequences for the particular child in each case." Id ., ¶ 10. "The

primary contemplation must always be the welfare and best interests of the

child." Id . These cases indicate that the decisional factor is not the

immediate quality of the parents' relationship , but the long-term

effect that the relationship may have on a child in a joint custody

situation.

¶11 However, Hornbeck also states that certain circumstances are

necessary for joint custody: "These circumstances boil down to the presence of

factors showing the likelihood of parental cooperation in matters affecting the

child . . . ." 1985 OK 48, ¶ 19 .

Certain decisions of the Court of Civil Appeals have gone further, implying that

joint custody is automatically an abuse of discretion if one party opposes it.

See , e.g. , Dunham v. Dunham , 1989 OK CIV APP 44 , 777 P.2d 403 ; Anderson v.

Anderson , 1990 OK CIV APP 23 ,

791 P.2d 116 . However, the

Supreme Court does not appear to have adopted this view. Rather, it appears to

have stated a somewhat flexible standard rather than drawing a bright line,

invoking the best interest of the child as a primary concern, but noting that

joint custody requires some degree of cooperation.

¶12 Trial judges are traditionally given wide latitude in custody decisions.

The Supreme Court has consistently noted in many other cases that we should

"consider the better position of the trial court who observes first hand the

parties and their witnesses as they testify." Hoog v. Hoog, 1969 OK 174, ¶ 12 , 460 P.2d 46 .

"There are many things which do not appear in the printed record, but which

undoubtedly have their impact upon the determination of a question . . . ."

Id . "We refer to the mannerisms of the parties; to their attitude toward

the child, toward each other and to other people . . . ." Id . A rigid

rule forbidding joint custody in stated circumstances is contrary to this

established tradition, and to 43 O.S.

2011 § 109. Further, a rule that all that is needed to destroy a joint

custody arrangement is a deliberate decision not to cooperate creates an

incentive for a party who wants sole custody to obstruct peaceful cooperation,

even if peaceful joint custody would be in the best interests of the child.

¶13 The trial court in this case noted some hostility between the parents,

but expressed a belief that this could be overcome if the parties were given

more precise instruction and removed from the immediate stress and hostility of

a custody battle. We do not find that the court was barred, as a matter of law,

from ordering joint custody, with Father as primary physical custodian, by the

parties' lapses in common courtesy or outbursts of hostility.

II. FATHER'S ALLEGED MISCONDUCT THROUGHOUT THE PROCEEDINGS

¶14 The district court vested primary physical custody in Father. Mother

complains of numerous acts by Father that she argues render Father unfit for

custody, including alleged "misconduct" during the proceedings. The record shows

that Mother filed seven applications for contempt citations during the

proceedings, requesting in each case that Father, the primary custodial parent,

be sentenced to six months in jail. 4 The court appears to have granted only one of these,

and imposed no jail time. The court noted both Father's apparent "derogation of

agreed court orders," and Mother's apparent "demand for strict adherence to the

letter thereof without regard to the need for reasonable alterations due to

illness or changing circumstances." The record demonstrates both that Father can

be impulsive, quick to anger, and speak intemperately, and that Mother and her

new "significant other" sometimes attempt to strategically provoke that anger. 5

¶15 "The trial court should [neither] award nor change custody of a child to

punish one parent for contemptuous conduct; the court, however, may consider

such conduct in determining the welfare of the child." Young v. Young , 1963 OK 14, ¶ 19 , 383 P.2d 211 . As noted by Gorham

v. Gorham , 1984 OK 90, ¶¶

13-14 , 692 P.2d 1375 (footnotes

omitted):

While the moral transgressions of the parties are to be considered in the

trial court's determination of what is in the best interest of the child in

a custody determination, the best interests of the child are of paramount

concern. . . .

. . . . The determinative factor in this case, as in all such cases, must

be the effect of the questioned behavior on the welfare of the child. To

establish an abuse of the trial court's discretion, there must be a showing

that this requisite nexus is present and that the effect of the behavior is

detrimental to the best interests of the child.

¶16 The trial court found that both parents are fit custodians for the minor

children and that the parties are able to cooperate with each other the

majority of the time concerning the children. It further found that "the

minor children are well cared for when in the custody of either parent and it is

patently evident that each parent deeply cares for these children." "The trial

court is confronted with the parties themselves and the witnesses," and is in a

much better position to assess the credibility of those witnesses than is this

Court from "the dry, printed words appearing in the record." Perry v.

Perry , 1965 OK 160, ¶ 5 , 408 P.2d 285 . We find nothing in the

record that could cause us to doubt these findings or require us to substitute

our own judgment for that of the trial judge. We do not concur with Mother's

argument that the trial court failed to properly consider Father's alleged

"misconduct throughout the proceedings"

III. ALLEGED ARBITRARINESS AND PREJUDICE AGAINST MOTHER AND

UNDUE BIAS TOWARD FATHER

¶17 Due process entitles a person to an impartial and disinterested tribunal

in both civil and criminal cases. "Every litigant is entitled to nothing less

than the cold neutrality of an impartial judge." Miller Dollarhide, P.C. v.

Tal , 2007 OK 58, ¶ 16 , 163 P.3d 548 . "[T]his Court has the

power to correct the error in refusing to disqualify, even as late as on the

appeal, and will use that power if necessary to promote justice or insure

popular respect for the courts." Casey v. Casey , 2011 OK 46, ¶ 14 , 270 P.3d 109 . However we find no

request that the judge in this case disqualify, and no particular facts of

this case indicating the trial judge was obligated to recuse himself. Our

impression of the written record is that of a judge attempting to act

impartially between the adversarial demands of two aggressive and competent

counsel and two frustrated parents. We find no evidence of the improper bias

claimed by Mother.

IV. BEST INTERESTS

¶18 The district court found that that "both parents are fit custodians for

the minor children"; that "the minor children are well cared for when in the

custody of either parent"; and that "it is patently evident that each parent

deeply cares for these children." Overall, the court found that physical custody

by Father was in the children's best interests, stating, "The minor children

have more stability in their lives; far greater familial, friends,

extracurricular and school contacts with Dibble area with the Petitioner than

that of the Respondent's home. There is a greater support group in their current

location from both the paternal and maternal sides of the failed marriage."

Contrary to Mother's brief, the court clearly did not base its decisions solely

on these geographic factors, but made a careful assessment of the numerous

allegations and arguments presented over five days of trial. We find the court's

custody decision to be within the range of discretion granted to a trial judge

in such matters. We therefore affirm its order.

CONCLUSION

¶19 We note especially that much of the case law on this issue involves

motions to change custody arrangements based on a material change of

circumstances post-decree. It is inherent in that scenario that joint custody

has been tested in a situation free of the stresses and adversarial posture

created by a custody contest and still found to be against a child's best

interests. The record shows some hostility and a refusal to cooperate between

the parents at the time of the divorce. It also shows, as the trial court found,

that "it is patently evident that each parent deeply cares for these children."

It does not show that they are incapable of overcoming this hostility in the

longer term and acting in the best interests of their children. If the latter

eventually proves to be the case, the established modification process is open

to the parties. We therefore affirm the decision of the district court.

¶20 AFFIRMED .

RAPP, P.J., and BARNES, J., concur.

FOOTNOTES

1

See , e.g. , Herrera v. Herrera , 2013 OK CIV APP 25, ¶ 19 , 298 P.3d 1209 ; In re Adoption of

M.C.D ., 2002 OK CIV APP 27,

¶ 27 , 42 P.3d 873 .

2

"However, the existence of [a procedure requiring that each parent agree to

abide by the proposed plan] does not limit the trial court's power to consider

the alternative of joint custody when such an arrangement clearly furthers the

best interests of a child, even though one parent has not agreed in principle.

Such a result would in effect negate the provisions of subsection B which

recognizes the power of the trial court to do whatever is in the best interests

of the child involved." Hornbeck , ¶ 10 .

3 The

statute states, "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." If both parties must desire joint

custody, the statute would require a joint application.

4 Mother

filed contempt citations on August 31, 2011; September 16, 2011: December 21,

2011; January 19, 2012; April 9, 2012; December 26, 2012, and February 6,

2013.

5

For example, see record at p. 231 where the court details attempts by

Mother's new "significant other" to agitate Father by "blowing kisses" during

trial. The court clearly found this behavior disturbing enough to note and

condemn it in its written ruling on dissolution.

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

1989 OK CIV APP 31 , 787 P.2d 1288 , 61 OBJ 680, Fast v. Fast Discussed

1989 OK CIV APP 44 , 777 P.2d 403 , 60 OBJ 2061, Dunham v. Dunham Discussed

1990 OK CIV APP 23 , 791 P.2d 116 , 61 OBJ 1363, Anderson v. Anderson Discussed

1991 OK CIV APP 101 , 818 P.2d 1258 , 62 OBJ 3498, Miles v. Young Discussed at Length

2002 OK CIV APP 27 , 42 P.3d 873 , 73 OBJ 936, IN RE ADOPTION OF M.C.D. Discussed

2008 OK CIV APP 94 , 198 P.3d 406 , KILPATRICK v. KILPATRICK Discussed

2013 OK CIV APP 25 , 298 P.3d 1209 , HERRERA v. HERRERA Discussed

Oklahoma Supreme Court Cases

Cite Name Level

1960 OK 196 , 355 P.2d 572 , DAVIS v. DAVIS Discussed

1963 OK 14 , 383 P.2d 211 , YOUNG v. YOUNG Discussed

1965 OK 160 , 408 P.2d 285 , PERRY v. PERRY Discussed

1969 OK 174 , 460 P.2d 946 , HOOG v. HOOG Cited

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

2007 OK 58 , 163 P.3d 548 , MILLER DOLLARHIDE, P.C. v. TAL Discussed

2007 OK 76 , 171 P.3d 890 , SPENCER v. OKLAHOMA GAS & ELECTRIC COMPANY Discussed

2010 OK 85 , 247 P.3d 1162 , FOSHEE v. FOSHEE Discussed

2011 OK 46 , 270 P.3d 109 , CASEY v. CASEY Discussed

1979 OK 161 , 603 P.2d 1125 , RICE v. RICE Discussed

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

1985 OK 48 , 702 P.2d 42 , Hornbeck v. Hornbeck Discussed at Length

1986 OK 12 , 725 P.2d 1234 , 57 OBJ 877, Manhart v. Manhart Discussed

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