insufficient evidence to conclude interference, but if mother continued to interfere with father’s visitation, the court would approve a change of custody
How later courts described this case
- insufficient evidence to conclude interference, but if mother continued to interfere with father’s visitation, the court would approve a change of custody
Written by the judges who cited it.
The opinion
ON REHEARING
SIMMS, Justice.
On rehearing, Appellee urges misapplication of the law to the facts regarding the award of custody of the minor children of the marriage to appellant; appellate jurisdictional failure in that appellant failed to properly preserve the issue of custody for appeal; mootness of this Court’s decision regarding custody because of an order of the trial court pertaining to custody while this case was on appeal; the “invidious discrimination” of Oklahoma’s “statutory and Judicial scheme”, beginning with 30 O.S.1971, § 11, pertaining to the custodial award of a child of tender years to the mother.
Having carefully reviewed the entire record of all proceedings which have been filed in this Court for purposes of appeal, we conclude that the majority opinion of this Court correctly applied the law of Oklahoma to the evidence of the case in that this Court gave paramount consideration to the best interests of the children of the parties.
No appellate jurisdictional defect is apparent in that the trial court in its decree of divorce awarded custody of the children of the parties to appellant at the time of entry of judgment and appellant therefore had no reason to seek appellate review of the custody order entered by the trial court. Appellant timely filed her petition in error in accordance with Rule 1.14 and 1.15(a) of the Rules on Perfecting a Civil Appeal, 12 O.S. Ch. 15, App. 2. It was after the timely filing of the petition in error that the trial court entertained ap-pellees motion to modify, and entered an order changing the custody of one of the children from the mother to the father. Immediately following the modification order, and before briefs were filed, appellant filed an amended petition in error, as provided by Rule 1.17(a), placing in issue in the appeal the post judgment custody modification order.
The brief in support of rehearing urges mootness of this Court’s opinion regarding custody by reason of a denial of the Appellant’s motion to modify filed and heard in the trial court while the matter was on appeal. We find this argument unique but totally unimpressive. No attempt was made prior to rehearing to have this Court consider the evidence on Appellant’s post-judgment motion to modify nor was such evidence ever tendered to this Court for consideration prior to the pro *387 mulgation of this Court’s opinion. Appel-lee’s effort to have this Court consider matters de hors the designated record for the first time on rehearing is contrary to the prior holding in Pointer v. Hill, Okl., 536 P.2d 358 (1975) wherein we adopted the general rule set forth in 5 Am.Jur.2d, Appeal and Error, § 987.
“In civil cases it is a well recognized rule that questions not advanced on the original hearing will not be considered on petition for rehearing, except in unusual circumstances, or where fundamental or jurisdictional error is involved.”
Also, see: Brown v. State Election Board, Okl., 369 P.2d 140 (1962).
Applying the Pointer, supra, rationale, Appellee’s Application to Supplement the Record and for Continuance is DENIED.
We next treat Appellee’s rehearing argument addressing the purported “invidious discrimination” of Oklahoma’s “statutory and Judicial scheme” based on 30 O.S. 1971 , § 11, pertaining to the award of custody of children of tender years in divorce cases. We need only observe that at no time in this case has any Court relied upon the above statute or so-called “scheme”. Additionally, Appellee belatedly injects this issue for the first time on rehearing and is thereby proscribed by the above-quoted rule in Pointer, supra; and, Brown, supra.
We therefore conclude the petition for rehearing is without merit and deny same.
In the event rehearing is denied, Appellee asks this Court to stay issuance of mandate pending appeal to the United States Supreme Court. Supreme Court Rule 33, 12 O.S. Ch. 15 — App. 1, reads in part: “If the petition for rehearing is denied the mandate may issue.” The word “may” as used in Rule 33 vests with this Court the discretionary authority to either issue or stay issuance of mandate after rehearing. Because stability of environment and a minimum of disruption are salient factors in applying the paramount interest of the child test, and in considering all the facts and circumstances disclosed by the record, we decline to stay issuance of mandate in this cause.
Appellee’s application for visitation filed in this Court is Denied without prejudice to presentment in the trial court, all in accordance with the Judgment of this Court in the majority opinion. His request for oral argument is also Denied.
Because of this opinion on rehearing, we find it unnecessary to rule upon Appellant’s motion to strike.
REQUEST FOR ORAL ARGUMENT DENIED. PETITION FOR REHEARING DENIED. APPLICATION FOR VISITATION DENIED WITHOUT PREJUDICE. APPLICATION TO STAY ISSUANCE OF MANDATE DENIED.
HODGES, V. C. J., and DAVISON, BERRY, LAVENDER and DOOLIN, JJ., concur.
WILLIAMS, C. J., and IRWIN and BARNES, JJ., dissent.