Petition — Gordon v. Gordon

| ex Suprame Co ‘a U.& ae 7AT

} JUL 18 1978

wi

rr

| MICH

ZHAEL RODAK, JR., CLERK

Suthe Sugreme Court of the Gnited States

OcTOBER TERM, 1978

| No. 8-105

GARY STEPHEN GORDON,

Petitioner,

VERSUS

MAXINE DEE GORDON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

WILLIAM B. ROGERS

Don LAUDICK

219 Couch Drive

Oklahoma City, Oklahoma 73102

Counsel for Petitioner

of Counsel:

AMES, DAUGHERTY, BLACK,

ASHABRANNER, ROGERS & FOWLER

219 Couch Drive

Oklahoma City, Oklahoma 73102

July, 1978

UTTERBACK TYPESETTING CO.. 3519 W. CALIF... OKLAHOMA City. PH. 235-0030

TABLE OF CONTENTS

Opinions Below _...._»_-— A ree

EES RIES 0 ee a ey aD ee

Question Presented for Review

Constitutional and Statutory Provisions Involved _.

SEE TLE

Reasons for Granting Writ of Certiorari

The Oklahoma Supreme Court’s Reversal of Peti-

tioner’s Award of Custody Is Premised Upon a

Direct Disparity of Treatment Based Upon Peti-

REE AEE Ee SeS Ce PO OO Ya

The Majority Opinion of the Oklahoma Supreme

Court Is Not in Accord With Decisions of This

Court Relating to Sexual Classifications _____

A Direct Conflict Exists Between State Courts Re-

garding Application of This Court’s Decisions

Related to Sex Discrimination _....

See Ce Or Ge

APPENDICES

Appendix A:

Opinion of the Oklahoma Supreme Court (Gordon

7 Sees, Ga, See Pee ae?

Appendix B:

Decree of Divorce of Oklahoma District Court, No.

ER EE Rn OC ee ee Sobers

Appendix C:

Petition-in-Error of Appellee Gary Stephen Gordon,

filed in Sup. Ct. of Okla., Feb. 27, 1976

13

20

22

A-1

a

TABLE OF AUTHORITIES

CASES:

Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed.

884 (1954)

Brim v. Brim, Okl.App., 532 P.2d 1403 (1965)

Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400

(1968)

Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 LEd.

2d 397 (1976) ..

Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764,

36 L.Ed.2d 563 (1973) ——_...... aE SEES aoe

Harper v. Virginia, 383 U.S. 663, 86 S.Ct. 1079, 16

RR sc or,

Irwin v. Irwin, Okl., 416 P.2d 863 — 2

Korematsu v. United States, 323 U.S. 214, 65 S.Ct.

193, 89 L.Ed. 794 (1944) _

Liberti v. York, 28 Conn. Super. 9, 246 A.2d 106

i) ....

Loving v. Virginia, 388 US. 1, 87 S.Ct. 1817, 18 L.

Ed.2d 1010 (1967) __....

McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101,

6 L.Ed.2d 393 (1961)

Morrow v. Morrow, Okl., 383 P.2d 24 (1963) _._.

Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d

aa ae DORR Sis tier ete

Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1125,

86 L.Ed. 1655 (1942) A ne id OREN

Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.

Ed.2d 688 (1975) —

State ex rel. Watts v. Watts, 77 Misc.2d 178, 350

a

Sumrell v. York (D. Conn., 1968), 288 F.Supp. 955 _

PAGE

16

11

17

19

17

16

15

16

17

16,17

16

11

17

AUTHORITIES CONTINUED PAGE

U. S. ex rel. Robinson v. York (D. Conn., 1968), 281

F.Supp. 8 _ Enis tagut Mah ested bes Glenaiids 17

UnITED STATES CONSTITUTION:

ee nee eee 3

U.S. STATUTES:

Be a Or i a a 2

OKLA. STATUTES:

i: Fe S| Reem.

eT ee ee

In the

Supreme Court of the United States

OcTOBER TERM, 1978

(ge eee

GARY STEPHEN GORDON,

Petitioner,

VERSUS

MAXINE DEE GORDON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

The petitioner, Gary Gordon, respectfully prays that

a writ of certiorari issue to review the judgment and opin-

ion of the Supreme Court of the State of Oklahoma en-

tered in this proceeding on February 7, 1978.

OPINIONS BELOW

The Opinion of the Oklahoma Supreme Court is re-

ported in Gordon v. Gordon, Okl., 577 P.2d 1271, and ap-

pears as Appendix A hereto. The Decree of Divorce of the

Oklahoma District Court in cause Number JFD-75-232,

appears as Appendix B hereto.

= SS

JURISDICTION

The decision of the Oklahoma Supreme Court was en-

tered on February 7, 1978, and a timely petition for re-

hearing was denied on April 19, 1978. This petition for writ

of certiorari was filed within ninety days of such denial of

rehearing. The jurisdiction of the Supreme Court is in-

voked pursuant to 28 U.S.C. §1257(3) for reason that the

validity of a state statute is questioned on the grounds that

it is repugnant to the Constitution of the United States.

QUESTION PRESENTED FOR REVIEW

Whether a statutory presumption favoring mothers

in custody conflicts involving young children, commonly

known as the “tender years presumption,” works as un-

constitutional discrimination against fathers. Specifically,

did application of such a legislative and judicial classifi-

cation premised upon unalterable sex cheracteristics which

resulted in Petitioner’s loss of custody of his child, consti-

tute an unconstitutional denial of Petitioner’s right to equal

protection of the law under the Fourteenth Amendment to

the United States Constitution? Stated more broadly, is

gender-based discrimination based upon purported “cul-

tural, psychological and emotional” differences between the

sexes constitutional and, if so, who has the burden of prov-

ing such differences?

a

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment Fourteen to the United States Constitution:

“* * * nor shall any State deprive any person of life,

liberty or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

30 Okl. Stat. 1971, $11:

“In awarding the custody of a minor, or in appoint-

ing a general guardian, the court or judge is to be

guided by the following considerations:

“1. By what appears to be for the best interests of

the child in respect to its temporal and its mental and

moral welfare; and if the child be of sufficient age to

form an intelligent preference, the court or judge may

consider that preference in determining the question.

“2. As between parents adversely claiming the cus-

tody or guardianship, neither parent is entitled to it

as of right, but, other things being eaual, if the child

be of tender years, it should be given to the mother;

if-it be of an age to require education and preparation

for labor or business, then to the father.”

ve ‘es

STATEMENT OF THE CASE

Petitioner seeks a Writ of Certiorari to the Oklahoma

Supreme Court from a decision reversing the judgment of

the District Court of Oklahoma County Oklahoma. Proceed-

ings giving rise to this action arose in January of 1975 when

the plaintiff below, Maxine Gordon, brought an action of

divorce against the Petitioner. Both Maxine Gordon, re-

ferred to hereinafter as the plaintiff, and Petitioner prayed

in their respective Petition and Cross-Petition that they

be granted custody of their child, Danny Gordon. The child

was born in January of i973. In January of 1976 trial was

held before the District Court of Oklahoma County in Ok-

lahoma City, Oklahoma, and the court granted the divorce,

made a division of the property and upon the determi-

nation that such was in the child’s best interest, granted

custody of the then three-year-old boy to his father, the

Petitioner, with reasonable visitation rights to the plaintiff.

(Decree of Divorce is attached hereto as Appendix B.)

Plaintiff perfected her appeal to the Oklahoma Supreme

Court and asserted error by the trial court in awarding

custody to the Petitioner. In February of 1976, upon ap-

plication of the plaintiff, the Oklahoma Supreme Court en-

tered its order staying enforcement of the District Court’s

award of custody to the Petitioner. Pursuant to the Peti-

tioner’s motion to modify such a stay order, the Oklahoma

Supreme Court appointed the Judge of the District Court

as its Special Master to conduct further proceedings in

order to make findings of fact and law and to make recom-

mendations regarding custody of the child pending appeal.

A hearing was held in May of 1976 and the Special Master

found the plaintiff to be unfit to have custody and recom-

ee

mended that custody be awarded to the Petitioner. The

Oklahoma Supreme Court approved such recommendation

in July of 1976 and ordered that the child be placed in the

custody of the Petitioner pending disposition of the appeal.

The boy remained in the custody of the Petitioner from

July of 1976 until May of 1978.

Pursuant to regular appellate procedure in Oklahoma,

plaintiff and Petitioner submitted their briefs to the Okla-

homa Supreme Court with Petitioner’s Appellee’s Brief

being filed with the Court in December of 1976. Plaintiff's

principal contention of error by the trial court was based

upon the position that the trial court had failed to apply

a presumption favoring mothers in matters involving cus-

tody of children of tender years. Plaintiff argued that the

above-cited Oklahoma statute, 30 Okl. Stat. 1971, §11, as

interpreted by the Oklahoma courts, required that a trial

court award custody of such a child to the mother rather

than the father unless the mother was specifically found

to be an “unfit” custodian. Petitioner’s counter-argument

in support of the decision of the trial court relating to the

foregoing argument of the plaintiff was centered upon the

position that Oklahoma courts were no longer bound to

award mothers custody absent a finding of unfitness and

that application of any such rule, whether legislative or

judicial in its origin, favoring a party on the basis of their

sex would constitute an unconstitutional denial of Peti-

tioner’s right of equal protection of the law as such right

has been recently examined and defined by this Court. Pe-

titioner supported a true application of the often recited

but seldom employed standard that the sole criteria in such

cases should be the child’s best interest.

ae Ue

The above referenced federal question was raised for

the first time in these proceedings by way of the plaintiff's

Petition-in-Error, attached hereto as Appendix C, with Pe-

titioner’s subsequent assertion that the “tender years pre-

sumption” invoked by the plaintiff was repugnant to the

United States Constitution.

On February 7, 1978, the Oklahoma Supreme Court

filed its opinion (Appendix A) reversing the trial court,

finding 30 Okl. Stat. 1971, §11 to be constitutional, awarding

custody of the child to the plaintiff and remanding the

action to the District Court with instructions to conduct

hearings on the issue of Petitioner’s visitation and child

support. Petitioner made timely petition for rehearing, and,

subsequent to extensive briefing, the Oklahoma Supreme

Court denied rehearing on April 19, 1978. As directed, on

June 8, 1978, the District Court conducted a hearing to

determine Petitioner’s right to visitation with his child and

the amount of child support to be awarded.

The appellate phase of this action has been limited

from its inception solely to the issue of custody of the

minor child.

a

REASONS FOR GRANTING WRIT

OF CERTIORARI

Prior to discussing the various asp2cts of this cause

from the standpoint of tMefr effect’ iffon the Petitiorter,

brief mention will be made of a factor which is, perhaps,

so evident that it needs little comment. While Petitioner

knows of no reliable statistical measurement of the fre-

quency that judicial determinations as to custody of chil-

dren must be made, the fact that such a situation is at

least one of the more common issues confronting the legal

system and one that touches the lives in a very substantial

way of a vast number of persons is readily perceived by

the most casual observer. Without risk of exaggeration it

can be said that determinations of custody of children in

divorce actions is a matter of great importance to a great

many persons and is an issue which deserves thoughtful

and serious legal consideration.

There are, of course, a good number of elements in-

volved in sound decisions regarding the often hoary ques-

tion of granting one parent and denying the other parent

custody of their child and the present petition seeks review

of only one of these factors. However, inasmuch as that

single criteria involves differentiation in legal treatment

based upon the sex of the divorcing parents, it would be

difficult to propose a more universal factor involved in

such actions.

At its simplest level this petition seeks a review of the

legislative and judicial practice, as embodied in the decision

of the Oklahoma Supreme Court, of basing awards of cus-

tody to a large measure upon the sex of the parties. As

a

might be supposed, Petitioner is hopeful that such a review

will not only be granted but that the ultimate decision of

this Court would result in an elimination of this sexual

preference favoring women and that the demise of such

gender-based favoritism would give way to the often re-

cited but not wholly consistent goal of deciding the custody

of a child solely upon what is shown to be in that child’s

best interests.

The Oklahoma Supreme Court’s Reversal of Petitioner’s

Award of Custody Is Premised Upon a Direct

Disparity of Treatment Based Upon

Petitioner’s Sex

A careful review of the appended opinion of the Ok-

lahoma Supreme Court reveals a line of reasoning with

attendant application of law relating to a substantial and

very pervasive question involving the constitutionally guar-

anteed right to equal protection of the law which is wholly

at odds with decisions of this Court. Specifically, the Okla-

homa Supreme Court has, by its decision in this action, de-

termined that a statutory method of discriminating against

persons solely on the basis of their sex to be a constitution-

ally acceptable application of law, and, while no decision

by this Court has been found dealing with the particular

question of such classification in divorce-custody disputes,

the decision from which this request for a writ of certiorari

is made is inconsistent with every recent pronouncement

by this Court on matters of sex discrimination.

The immediately foregoing comment was prefaced with

the qualification of a careful reading of the decision for

reason that the Oklahoma majority opinion may, by casual

an

reading, appear to involve essentially a factual question

with what might perhaps be seen as a peripheral reference

to the constitutional issue. Petitioner proposes, however,

that a studied inspection of the opinion reveals just the

opposite. That is, the very foundation upon which the Ok-

lahoma Court has built its discussion of the factual aspects

of the case can only make sense and contain even a modi-

cum of internal consistency if that court’s ultimate ac-

ceptance of sex-based favoritism is recognized. It is the

standard by which the facts are reviewed which the Pe-

titioner proposes to be repugnant to the United States

Constitution. It might be argued, and indeed has been

argued by the plaintiff in her brief in opposition to re-

hearing below, that the decision of the Oklahoma Supreme

Court can be justified as a simple matter of the evidence

not supporting the trial court’s award of custody to the

Petitioner. Such a position, of course, has a certain amount

of simplistic appeal but it does not answer the ultimate

question regarding the criteria by which the Oklahoma Su-

preme Court would have the trial court judge the unique

facts-of the case. The answer may be found in the ma-

jority opinion and it involves a pure and relatively simple

form of the very sort of sex discrimination previously dis-

approved by this Court.

That the facts of the cause are inexorably tied to the

critical constitutional question is exemplified by the Okla-

homa Supreme Court’s apparent quandary in attempting to

retain its traditional support of the doctrine that a mother

be granted custody unless she were found to be unfit, or,

conversely, that a “fit” mother would be the preferred cus-

=—

todian without regard: of the relative parental merits of

the father.

For lack of a better term such a rule shall be referred

to herein as th~ “fitness rule.” Any indication of an intent

to abandon the “fitness rule” is belied by the balance of

the opinion, and is hinted at on page 1277 of the opinion

(Appendix A) when the court notes that the admitted

“gender preference” should be employed when the scales

are “relatively” balanced. While such words of art are often

quite necessary as moderating factors to the law, when

read in conjunction with the rest of the opinion, the in-

clusion in this decision of such a qualifier leads one to

believe the entire statement is more for show than sub-

stance. The obvious question presenting itself to anyone

attempting to apply this decision to other cases must surely

be, “how relative”? And the answer supplied by the ulti-

mate conclusion of the court is, “not very.”

The Oklahoma Supreme Court’s unwillingness to ac-

tually abandon the conspicuous discrimination of the “fit-

ness rule” in favor of a more rational sounding, veiled form

of favoritism only when factors are “relatively” balanced,

can be seen in the fact that the court repeatedly made ap-

proving mention of the plaintiff’s argument that she should

have been awarded custody because she had not originally

been found to be “an unfit mother.” The court’s own dis-

cription of the appeal in its first sentence of the opinion

states that the action was an “... appeal by the wife from

a trial court’s award of custody of a three-year-old child

of the parties to the husband in a divorce action absent a

finding of unfitness on the part of the mother.” (Appendix

—

A at page 1272, emphasis added.) It is also noteworthy that

in its discussion of 30 Okl. Stat. 1971, §11, the court re-

ferred to the fitness or lack of unfitness of the plaintiff no

less than seven additional times; three of such references

occurring by way of rejecting Petitioner’s argument that

a mother need not be found to be unfit in order for the

father to qualify for custody, and the remaining references

to the rule being made in commentary apparently approv-

ing the plaintiff’s argument that a mother must be awarded

custody unless she is clearly shown to be unfit.

Without going into greater detail, it should also be

noted that the majority decision rejects two Oklahoma

opinions cited by the Petitioner in support of what ap-

peared to be a prior abandonment of the “fitness rule” in

custody disputes in favor of simply attempting to deter-

mine the child’s best interest without benefit of gender-

based preconceptions, Morrow v. Morrow, Okl., 383 P.2d 24

(1963) and Brim v. Brim, Okl.App., 532 P.2d 1403 (1965).

The court distinguished these decisions for reason that they

arose from actions to modify divorce decrees rather than

from divorce actions themselves. Petitioner directs atten-

tion to this extraordinary result of the majority opinion

whereby the standards used to determine custody and pre-

sumably the child’s best interest somehow vary according

to the nature of the proceeding. Such a result is not only

peculiar but is also one more indication that the Petitioner

is but another victim of the unpreven but entrenched con-

cept that parental ability is a direct and proximate func-

tion of gender. In other words, the very factor which

dictated the Petitioner’s status as a father also impaired

his position before the law. The decisive factor weighing

-— =

against the Petitioner was not his parental ability but his

sex.

Prior to noting the particular decisions of this Court

which are not in accord with the present ruling, it should

be pointed out that the Oklahoma Supreme Court approv-

ingly recites in its own words the following condensation

of the plaintiff’s position:

“Plaintiff cites numerous decisions of this Court de-

cided under 30 O.S. 1971, §11, which set forth the

general rule that in this jurisdiction the mother is

recognized as the natural and preferred custodian of

a child of tender years; that other things being equal,

unless the mother is clearly shown to be an improper

person to be trusted with its care and custody, a child

should be placed in her custody.” 577 P.2d 1271 at 1274

(Appendix A, emphasis added.)

When the immediately preceding and internally con-

tradictory statement (i.e., the gender-based instructive por-

tion of the statute is to be employed when other things are

equal unless the mother is unfit—the latter provision de-

stroying the meaning of the former) is read in conjunction

with the conclusion of the court that “[p]laintiff was shown

to be a fit and proper person to have Danny’s custody and

the award of the custody in the defendant was clearly

against the weight of the evidence” (Appendix A at page

1277), there is little room for doubt that the “fitness rule”

with its inherent sex-based discrimination is alive and well

in Oklahoma and has worked its mischief against yet an-

other father, the Petitioner.

—13—

The Majority Opinion of the Oklahoma Supreme

Court Is Not in Accord With Decisions of This

Court Relating to Sexual Classifications

While some confusion may legitimately exist as to the

precise constitutional boundaries of equal protection as re-

lated to sex discriminations, it is reasonable to suppose that

the position taken by the Oklahoma Supreme Court falls

quite wide of all the recent discussions of the issue by this

Court, and it seems unlikely that the decision would with-

stand application of even the least rigorous standards.

It being apparent that the majority opinion of the Ok-

lahoma Supreme Court relied unon a presumption favoring

mothers of young children as a necessary element in arriv-

ing at the ultimate reversal of the trial court, it might be

helpful to attempt to sort out those portions of the opin-

ion which offer an indication of the rationale relied upon

by the Oklahoma court to justify its invocation of the ma-

ternal preference. The majority summarized with apparent

approval the plaintiff's argument that the statutory dis-

crimination favoring women was proper and desirable in

child custody cases by stating as follows:

“' .. in this jurisdiction the mother is recognized

as the natural and preferred custodian of a child of

tender years. ... The rule further recognizes that a

child of tender years needs the constant bestowal of its

mother’s care and love...” (Appendix A at nage 1274)

After a discussion rejecting one of the Petitioner’s ar-

guments that sex discrimination had been previously de-

termined by this Court to be of an inherently suspect

nature, the majority opinion suggests that the historical

willie

basis for the discrimination contained in 30 Okl. Stat. 1971,

§11 was the “. .. old notion that a child of tender years

needs a mother more than a father .. .” and that the

gender-based roles established by “. . . traditional patterns

of thought .. .” dictate that children should be in the care

of their mother. The decision of the Oklahoma court adds

still more preconceptions, if no supportive facts, when it

notes the proper role of an awareness of “. . . obvious and

essential biological differences .. .” and the “. . . cultural,

psychological and emotional characteristics that are gender

related .. .” (Appendix A at page 1277)

It is significant that none of the factors upon which

the Oklahoma court supported its guesses as to the original

legislative intent in enacting what is now 30 Okl. Stat. 1971,

$11 (Stat. of Okl., 1890, Chapter LXIII, Article 3, §11) were

based upon any known legislative history nor were any

of the gender related role generalizations employed by the

court supported by the evidence for the simple reason that

no such evidence had ever been submitted in these pro-

ceedings. Petitioner had even suggested in his Petition for

Rehearing to the Oklahoma Supreme Court that it might

indeed be proper for that court to remand the cause for

purpose of conducting an evidentiary hearing into the legis-

lative purpose and to determine if there was any con-

temporary evidence which might justify the classification.

While the Oklahoma majority declined to call for or allow

such presentation of evidence, choosing rather to stand on

its apparent “judicial notice” of sex characteristics, the

opinion does reflect a marked secular trend in the judicial

justification for unequal treatment of parents. Whereas the

Oklahoma majority now endorses sex-based disparity of

inn

treatment as being justified by such factors as “traditional

patterns of thought,” “old notions” and “cultural, psycho-

logical and emotional characteristics,” as late as 1966 the

Oklahoma Supreme Court supported such sexual prefer-

ence as being a matter of “divine justice.” Irwin v. Irwin,

Okl., 416 P.2d:853. Petitioner knows that no evidence had

been presented in this action to support the court’s present

conclusions and suspects that such was also the case a

dozen years ago in the Irwin case.

The salient point of this commentary relating to the

majority opinions’ reliance upon unproven notions regard-

ing the gender-based parental roles is that such attempts to

justify sexual discriminations no longer meet the consti-

tutional criteria outlined by this Court.

There can be no doubt that the majority opinion of

the Oklahoma court supports unequal treatment of two

classes of citizens and that such classification is based solely

upon those persons’ sex. Given the fact of such disparity

of treatment, the issue presented herein involves whether

such action falls within constitutionally acceptable parame-

ters. It necessarily follows, then, that the classification must

be measured against some standard in order to judge its

constitutionality and the question of what standard to apply

has prompted the submittal of the present Petition.

As is often the case during periods of re-evaluation

and transition in a particular area of constitutional law,

definitive standards are somewhat illusive. This is not to

say, however, that in many instances such a standard can-

not be determined. Petitioner suggests that the opinion of

the Oklahoma court fails to conform to even the well estab-

tiie

lished minimum standard. The range of possible criteria

by which a statutory classification may be reviewed runs

from the traditional view that such action shall be pre-

sumed to be constitutional if it is rationally related to a

permissible public purpose and that the evidence necessary

to demonstrate such characteristic may be adduced by ju-

dicial notice with the permissible legislative purpose being

presumed. Under such rule the burden of proof in a con-

stitutional dispute falls upon the party attempting to show

unconstitutionality. See generally, McGowan v. Maryland,

366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

Of course, such an attitude gradually gave way to a

far different standard particularly as related to classifica-

tions based on such factors as race, alienage, and economic

status. The presumption arose that such legislation was

“inherently suspect,” Korematsu v. United States, 323 U.S.

214, 65 S.Ct. 193, 89 L.Ed. 794 (1944), “constitutionally

suspect,” Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98

L.Ed. 884 (1954) or “essentially suspect,” Loving v. Vir-

ginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) and

were subject to “the most rigid scrutiny,” Korematsu v.

United States (supra), “strict scrutiny,” Skinner v. Okla-

homa, 316 U.S. 535, 62 S.Ct. 1125, 86 L.Ed. 1655 (1942) or

are “closely scrutinized,” Harper v. Virginia, 383 U.S. 663,

86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Pursuant to these and

other decisions the rule was established that if the criteria

for the classification was disfavored, the burden rested not

with the attacker of the “inherently suspect” discrimina-

tion to demonstrate unconstitutionality but rather was born

by the defender of the discrimination to prove constitu-

tionality, and such burden was not easily discharged. The

—]7—

defender of the discrimination had a “very heavy burden

of justification which the Fourteenth Amendment has tra-

ditionally required of state statutes drawn according to

{suspect classifications]” Loving v. Virginia (supra).

For some years gender was not included in those areas

subject to the heightened standard of review. Subsequent

to several lower court decisions whereby sex discrimina-

tion was judged by a higher (but not necessarily highest)

standard, U. S. ex rel. Robinson v. York (D. Conn., 1968),

281 F.Supp. 8; Commonwealth v. Daniel, 430 Pa. 642, 243

A.2d 400 (1968); Sumrell v. York (D. Conn., 1968), 288

F.Supp. 955 and Liberti v. York, 28 Conn. Super. 9, 246 A.2d

106 (1968), this Court redered its decision in Reed v. Reed,

404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), and while

not going so far as to hold sex to be as “suspect” as race,

the Court did subject the sexual discrimination to a con-

siderably more strict standard than the traditional “rational

relationship” test and the burden of attempting to establish

constitutionality was sauarely placed unon the defender of

the classification.

This Court followed the Reed “= 'rontiero v.

Richardson, 411 U.S. 677, 93 S.Ct. wu.Ed.2d 583

(1973), which not only continued tc .eat sex discrimina-

tion on a par with race discriminatic’ but, in fact, spoke

in terms of it possessing an inherently suspect status. The

strong language of Frontiero was somewhat moderated in

Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688

(1975), wherein the Court declared that it had not actually

determined the standard to be applied to sexual classifi-

cation. The Court in Stanton did not, however, abandon the

- =

concept of a heightened standard of review in sex discrimi-

nation matters and, in fact, took the opportunity to spe-

cifically reject the Utah Supreme Court’s reliance upon

“old notions” and “widely accepted idea[s]” as supportive

of age-sex discriminations. It is interesting to note the Ok-

lahoma opinion’s adoption of and reliance in the instance

case of what the Utah court is now calling “traditional pat-

terns of thought” regarding “roles of mother and father”

(Appendix A at 1277) as well as the Oklahoma court’s

gratuitous inclusion of the term “old notions” to support

its finding of constitutionality. |

The Oklahoma majority opinion refers to Reed and

Frontiero and points out that both involved only matters

of administrative convenience and that Frontiero was a

plurality opinion which had not been followed in regard

to its characterization of sex being a “suspect” classification.

Petitioner would at this point briefly comment upon

the attempt by the Oklahoma court to distinguish cases

involving gender-based classification whose purpose was to

achieve “administrative convenience” and the classification

involved in the present action. It is suggested that. there is

no real difference between imputing what is perceived as

a general sexual characteristic to a class as a whole and

formalizing such preconception into rules of law for ad-

ministrative convenience or for judicial convenience in de-

termining custody. In both instances the generalization is

just that; a method of grouping people together for unequal

treatment without regard to characteristics which might

be possessed by individuals within the class.

|

—19-—

Moving on to more recent decisions of this Court re-

lating to sexual classifications the case of Craig v. Boren,

429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), presents

an interesting situation from several aspects. That decision,

which also arose out of Oklahoma, was handed down by the

Court only a few days after the appellate briefing in the

instant action was completed. It might be recalled that

Craig involved another Oklahoma Statute which differen-

tiated between males and females in setting out the age at

which persons could purchase 3.2 beer. The State attempted

to defend the statute on the basis that the Legislature’s

motive in enacting the statute may have been to promote

the interest of public safety. An attempt was made to sup-

port such position by statistical evidence but this Court de-

termined that the burden of establishing the constitution-

ality of the statute had not been met and that the sex

discrimination involved therein was violative of the plain-

tiff’s constitutional rights.

Amazingly enough, however, the Oklahoma Supreme

Court cited the Craig decision as supportive of its position

that the sex discrimination embodied in Oklahoma custody

law did not violate constitutional standards even though

there was a complete absence of any evidence relating to

a justification for the classification. The Oklahoma court

noted that the Craig case had established a “middle tier”

standard of review for gender-based classifications and then

went on to point out that the Petitioner herein had not met

his burden of proving that the classification was unconsti-

tutional. Such a result was reached despite the fact that

in the Craig case this Court found that the supporter of

the classification had the burden of nroving its justification

—20—

and had, in fact, failed to meet such burden, The Oklahoma

court has completely reversed the clear import of the Craig

case and has not only ignored this Court’s ruling that sex-

ual classifications must at least be supported by convincing

imperical evidence in order to be found constitutional but

has instead substituted its own preconceptions regarding

sexual roles, It is this very sort of unsupported categoriza-

tion which has in recent years been rejected by this Court.

A Direct Conflict Exists Between State Courts Regarding

Application of This Court’s Decisions Related

to Sex Discrimination

By virtue of the decision of the Oklahoma court in this

action, there exists a pointed and direct conflict between

jurisdictions regarding the application of the standards de-

termined by this Court to apply to gender-based classifi-

cations. While the discriminatory “tender years doctrine”

has been abandoned in several states on statutory or policy

grounds, a striking example of the direct constitutional

conflict may be seen by way of a comparison of the present

Oklahoma decision and the New York case of State ex rel.

Watts v. Watts, 77 Misc.2d 178, 350 N.Y¥.S.2d 285 (1973).

Whereas the Oklahoma court addressed the constitutional

issue raised by the presumption favoring mothers and found

that such doctrine was not unconstitutional, the New York

court examined the decisions of this Court and arrived at

the diametrically opposite conclusion that application of

the “tender years presumption” could stand on neither

policy nor constitutional grounds. The very fundamental

conflict between New York and Oklahoma law as deter-

mined in the present majority opinion is vividly demon-

—21—

strated in the following language from Watts v. Watts

(supra):

“Finally, application of the ‘tender years presump-

tion’ would deprive respondent of his right to equal

protection of the law under the Fourteenth Amend-

ment to the United States Constitution

* * * e * * *

“Recent decisions of the Supreme Court of the United

States make clear that differential treatment on the

basis of sex of the kind created by the ‘tender years

presumption’ is ‘suspect’ and therefore subject to the

strictest judicial scrutiny. In Fronterio v. Richardson

(411 U.S. 677, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583, 1973)

the court made explicit the incurable flaw in rules

of law which accord different treatment of men and

women on the basis of rigid and outdated sexual stero-

types:

’ * * * ” « *

“Thus message of Fronterio is clear: persons simi-

larly situated, whether male or female, must be ac-

corded evenhanded treatment by the law. Legislative

classifications may legitimately take account of need

or ability; they may not be premised on unalterable

sex characteristics that bear no necessary relationship

to the individual's need, ability or life situation. (See

also Reed v, Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d

225, 1971; of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct.

1208, 31 L.Ed.2d 551, 1972.

* e * * ” * *

“Thus the ‘tender years presumption’ in addition to

its other faults, works an unconstitutional discrimina-

tion against the respondent.”

It is difficult to imagine a more pointed difference of

opinion regarding the application of this Court’s recent de-

eaiibites

cisions relating to gender-based discrimination than has

been determined in these states. The rule of law which

acted agaist the Petitioner’s interest in the instant action

cannot be unconstitutional in New York and constitutional

in Oklahoma and yet such is now the circumstance present

in these jurisdictions. Such a situation emphasizes the im-

mediate and pressing need for determination of the issue

by this Court.

CONCLUSION

The decision of the Oklahoma Supreme Court as set

out in the appended opinion is founded upvon a pervasive

form of sex discrimination which denies the Petitioner’s

constitutionally protected right to equal protection of the

law and Petitioner respectfully requests that a Writ of Cer-

tiorari issue to review such decision of the Oklahoma Su-

preme Court entered in this cause on February 7, 1978.

Respectfully submitted,

WILLIAM B. ROGERS

Don LAUDICK

219 Couch Drive

Oklahoma City, Oklahoma 73102

Counsel for Petitioner

July, 1978

APPENDIX A

SE Enieeeel

[577 P.2d 1271]

Maxine Dee GORDON, Appellant,

v.

Gary Stephen GORDON, Appellee.

No. 49371.

Supreme Court of Oklahoma.

Feb. 7, 1978.

Rehearing Denied April 19, 1978.

[577 P.2d at 1272]

Appeal from the District Court of Oklahoma County;

Joe Cannon, Judge.

Appeal by wife from the trial court’s award of custody

of three-year-old child of the partie: to the husband in a

divorce action absent a judicial finding of unfitness on the

part of the mother. She alleges the order was clearly

against the weight of the evidence and that the trial court

abused its discretion.

REVERSED AND REMANDED WITH INSTRUC-

TIONS. |

Fagin, Hewett, Mathews & Fagin, Arnold D. Fagin,

Cliff A. Jones, Legal Intern, Oklahoma City, for appellant.

William B. Rogers, Don D. Laudick, Ames, Daugherty,

Black, Ashabranner, Rogers & Fowler, Oklahoma City, for

appellee.

SIMMS, Justice:

In a divorce action, the trial court awarded custody

of three-year-old Danny Gordon to his father, Gary Gor-

don. His mother, Maxine Gordon, now Frank, appeals. We

reverse the Trial Court.

A-2

[APPENDIX]

Maxine Gordon filed this action for divorce in January

of 1975, alleging that through the defendant’s fault the

parties had become incompatible. She sought custody of

Danny, who was then two-years-old; child support; ali-

mony and division of property. By ex parte order, Danny’s

temporary custody was placed with the plaintiff and de-

fendant was ordered to make payments for the support

of plaintiff and the minor child during the pendency of

the action.

Defendant answered and denied all plaintiff’s material

allegations. He also filed a cross-petition seeking divorce for

himself and division of property. Several weeks before

trial on the issues was held in January of 1976, defendant

amended his cross-

[577 P.2d at 1273]

petition to request that custody of Danny be placed with

him.

The trial court granted divorce to both parties, entered

certain orders regarding division of property and alirnony,

and awarded custody of Danny to defendant. The award

of custody is the only issue before us on appeal. For con-

venience the parties will be referred to by their designation

in the trial court.

Testimony pertaining to Danny which is relevant to

this appeal can be summarized as follows. Plaintiff had

taken care of Danny since his birth. She was not employed

and the overwhelming majority of her time was spent at

home with him. Testimony revealed that until, and during,

the pendency of this action, Danny had been away from

plaintiff only a few hours a week. He was enrolled in a

music school which met for two hours on two mornings a

week and he was cared for by a baby-sitter approximately

one to one-and-a-half hours a week while the plaintiff

played tennis. During another veriod of time, not simultane-

ous with the music school, Danny had been in a “mother’s

day out” program at a church on Fridays. Other than these

periods of time, Danny was constantly with his mother.

ae

art eee atl eb awen

LE OE ATE 1 LNT Ct TN ky te > 6 ome

a

A-3

[APPENDIX]

The defendant worked six days and at least one night

each week in the family business. At the time of trial he

lived with his parents who also worked at least six days

a week in the family business.

Plaintiff testified that when the parties lived together,

the defendant spent no time with Danny. This testimony

was not disputed by defendant.

Plaintiff testified that since the parties had separated,

Danny visited with his father on Sundays, and that while

he liked to go visit his father, he loved to come back home.

The defendant testified that Danny was “thrilled” to

see him for visitation periods and that Danny enjoyed those

times tremendously.

It was defendant’s further testimony that Danny had

told him that he didn’t want to go home to his mother

because he got lonesome when she left him with a baby-

sitter while she played tennis.

Defendant complained on direct examination that

plaintiff had refused to allow him to see Danny on certain

occasions and, on cross-examination, he reauested the court

to set out specific times for his visitation periods.

‘Fhere was no attemot to show that the plaintiff was

unfit in any manner to have custody of Danny. In fact,

during his opening statement, counsel for defendant de-

clared to the court that:

“The defendant will also ask the Court to award him

custody of the minor child of the parties, not on the

basis that the plaintiff is an unfit mother because the

evidence would not justify that, but that the interest

of the minor child would be best served by his resi-

dence and custody in his father.”

During closing argument, counsel for defendant ac-

knowledged to the court that “. . . Now, I realize there is

A-4

(APPENDIX)

not a strong case to be made for custody of the child in

Gary. I know where the evidence is.” And, counsel further

stated:

“We would ask at a minimum that the Court direct

Mrs. Gordon to remain within the custody of this Court

until at least the child is through grade school so that

his father can have an opportunity to see his child for

whom he is certainly willing to pay support.”

These statements, while not evidence, certainly offer

an indication of how the parties and their counsel perceived

the evidence.

Announcing his judgment, the trial court stated in part

that:

“I listened and tried to analyze all of the evidence

that I heard in this case and like a lot of cases, I think

the evidence is—it’s not a question of one party is not

fit to have the children.

cone *

“And I think what what (sic) I heard and putting

reasonable inference between the lines, it is my judg-

ment that the best

[577 P.2d at 1274]

interest of this child will be served by giving custody

of it to the father. I think in the long run with the

interest of these people with what I can see, at least

what I think I can see deep down in them, I think this

little boy will have a better chance. That’s going to be

my judgment and it will be my ruling. Not that she’s

unfit; I’m just not too sure that some of the things in

her life are a lot more important than some of the

things that I think are more important for the benefit

of this child .. . I just have a gut feeling that it’s going

to be the best thing for this child to put custody in his

father, from what I’ve heard. Maybe I’m wrong, I don’t

know, but that is what I’m supposed to do is what I

think.”

a eee ee ES.

A I ati

A-5

[APPENDIX}

Post-trial proceedings, regarding the custody of Danny

pending this determination on appeal, were held in this

Court and before the trial court and Danny is currently

in the custody of his father.

Urging reversal of the trial court’s award of custody,

plaintiff first argues that because Danny is a child of tender

years that the court abused its discretion by awarding Dan-

ny’s custody to defendant in the absence of a showing of

unfitness on her part. In support thereof, plaintiff relies on

30 O.S.1971, § 11, which states:

“In awarding the custody of a minor, or in appoint-

ing a general guardian, the court or judge is to be

guided by the following considerations:

1. By what appears to be for the best interests of the

child in respect to its temporal and its mental and

moral welfare; and if the child be of sufficient age to

form an intelligent preference, the court or judge may

consider that preference in determining the question.

2. As between parents adversely claiming the custody

or guardianship, neither parent is entitled to it as of

right, but, other things being eaual, if the child be

of tender years, it should be given to the mother; if it

be of an age to require education and preparation for

labor or business, then to the father.”

Plaintiff cites numerous decisions of this Court! de-

cided under 30 O.S.1971, § 11, which set forth the general

rule that in this jurisdiction the mother is recognized as

the natural and preferred custodian of a child of tender

years; that other things being equal, unless the mother is

clearly shown to be an improper person to be intrusted

1 E. g., Blackwood v. Blackwood, 204 Okl. 317, 229 P.2d 602 (1951);

Miracle v. Miracle, Okl., 360 P.2d 712 (1961); Hurt v. Hust, Okl.,

315 P.2d 957 (1957); Earnst v. Earnst, Okl., 418 P.2d 351 (1966);

Irwin V. Irwin, Okl., 416 P.2d 853 (1966); Waller v. Waller, Okl., 439

P.2d 952 (1968).

A-6

(APPENDIX)

with its care and custody, a child should be placed in her

custody. The rule further recognizes that a child of tender

years needs the constant bestowal of its mother’s care and

love and that the courts are, therefore, loath to deprive a

mother of her child’s custody where she is a fit and proper

person.

Plaintiff further argues that the trial court’s finding

that Danny’s best interests would be served by placing cus-

tody in his father is manifestly against the weight of the

evidence, and that the trial court therefore abused his

discretion,

In support of this argument, plaintiff primarily relies

upon the fact that because of defendant’s work schedule

he must leave Danny in the care of a maid or housekeeper

for 90% of the child’s waking hours. Plaintiff maintains

that the trial court’s judgment removed Danny from his

mother—the person who had been his primary caretaker

since his birth and who was admitted by defendant to be

a good mother and a fit and proper person to have Danny’s

custody—and placed him in the actual care of a person in

the employ of defendant whose identity and qualifications

were unknown to the court. This result, plaintiff contends,

is clearly against the weight of the evidence and is, in fact,

detrimental to Danny’s best interests.

Plaintiff additionally maintains that the trial court’s

judgment was obviously against the weight of the evidence

as to

[577 P.2d at 1275]

Danny’s best interests because testimony showed that be-

cause of his personality, defendant would not be the better

custodian of Danny. According to plaintiff's testimony,

defendant’s disposition was certainly less than cheerful.

Plaintiff testified that she was seeking a divorce from de-

fendant because, among other things, he was withdrawn

and uncommunicative and had a verv bad temper. In re-

gard to his temper, plaintiff stated that defendant had

A-7

[APPEND!IX}

ripped up articles of his clothing and had thrust his fist

through a closed door.

Defendant argues that the trial court’s award of Dan-

ny’s custody to him was a proper exercise of the court’s

discretion and that the court’s determination that Danny’s

best interests would be served by this placement is sup-

ported by the evidence. Defendant points out that the trial

court was able to directly observe the parties and their

demeanor and that because of this observation it was better

able to decide which parent would be the better custodian.

In support thereof defendant relies upon certain testimony

presented at trial which, in his opinion, showed plaintiff to

be an overly “materialistic” person. Defendant also con-

tends that because the court must be vrimarily guided by

the child’s best interests, where the evidence shows that

those best interests will be better served by living with the

father, the mother need not be shown to be unfit to have

custody. Defendant cites and relies uvon Morrow v. Mor-

row, Okl., 383 P.2d 24 (1963) and Brim v. Brim. Okl.App.,

532 P.2d 1403 (1975) to suvport his contention, that “unfit-

ness” by the mother need not be shown to vlace custody

of a child of tender years with its. father.

[1] Neither Morrow, supra, nor Brim, supra, involved

an original award of custody. Both cases arose from judg-

ments in motion to modify decree provisions. As a change

of custody on a motion to modify presents separate ques-

tions and different legal issues than those raised in original

custody award actions,” those decisions are not controlling

here.

Additionally, defendant contends that this Court should

not reverse the trial court’s award of custody to him in

reliance upon the maternal preference provision of 30 O.S.

1971, §11 because that preference is an unconstitutional

discrimination against defendant based upon his sex. De-

2 Gibbons v. Gibbons, Okl., 442 P.2d 482 (1968).

A-8

[APPENDIX]

fendant submits that the maternal preference for custody

of young children denied him, as Danny’s father, equal

protection of the laws. Defendant argues that gender-based

classifications are now “inherently suspect” and must be

reviewed under “strict judicial scrutiny.” In support of this

argument, defendant relies primarily on the recent Su-

preme Court decisions of Frontiero v. Richardson, 411 U.S.

677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) and Reed v. Reed,

404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

Reed, Frontiero, and their progeny* do not however,

support defendant’s contention that gender is now a “sus-

pect” classification for equal protection purposes.

In Reed, the Supreme Court struck down a provision

of Idaho’s probate code which gave a mandatory preference

to males over females as executors of decedents’ estates

although both were otherwise equally entitled to serve.

Relying on Royster Guano Co. v. Virginia,‘ (a classification

“must be reasonable, not arbitrary, and must rest upon

some ground of difference having a fair and substantial

relation to the object of the legislation, so that all persons

similarly circumstanced shall be treated alike”), the Court

reviewed the Idaho gender classification under the tradi-

tional “rational bases” standard. Finding that the only pur-

pose of the provision was to reduce the workload of probate

courts by eliminating hearings on

[577 P.2d at 1276]

the merits, the Court held the preference violative of the

Equal Protection Clause.

3 Kahn v. Shevin, 416 US. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974);

Schlesinger Vv. Ballard, 419 US. 498, 95 S.Ct. 572, 42 LEd.2d 610

(1975); Weinberger v. Wisenfeld, 420 US. 636, 95 S.Ct. 1225, 43

LEd.2d 514 (1975); Stanton v. Stanton, 421 US. 7, 95 S.Ct. 1373, 43

L.Ed.2d 688 (1975); Craig v. Boren, 429 US. 190, 97 S.Ct. 451. 50

LEd2d 397 (1976).

' 253 US. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).

A-9

[APPENDIXx1

In Frontiero, the Supreme Court held that a statutory

Provision ~vhich differentiated between male and female

members of the uniformed services as to eligibility for de-

pendents’ benefits unconstitutionally discriminated against

women in violation of the due process clause of the Fifth

Amendment. The Court discussed at length our Nation’s

“long and unfortunate history of sex discrimination” (Id.,

41 U.S. at 684, 93 S.Ct. at 1769) which had, among other

injustices, denied women even the most basic civil and

political rights—participation in the electoral process and

ownership of property. It was “with these considerations

in mind” that the Court concluded that “classifications

based on sex... are inherently suspect, and must there-

fore be subjected to strict judicial scrutiny.” (Id. at 683,

93 S.Ct. at 1768.) The only purpose for the provision, as

conceded by the government, was mere administrative con-

venience, and the Court held that different treatment of

male and female military personnel “solely for the purpose

of achieving administrative convenience” was unconstitu-

tional. (Id. at 690, 93 S.Ct. at 1772.)

It is very important, however, to stress two points

about Frontiero. First, it was only a vlurality opinion as to

the holding that sex is a “suspect” classification requiring

the stricter standard of review. Second, since Frontiero,

the Court has retreated from the vlurality’s analysis of sex

as a “suspect” classification and that holding has not been

followed in any subseauent decision.

Instead, the Court has fashioned a new “middle-tier”

standard of equal protection review under which it has

analyzed certain classifications such as gender. While the

existence of this recently evolving third standard is obvious

and has received considerable comment, the mechanics

® See e. g. The Supreme Court 1971 Term-Forward, 86 Harv.LRev. 1

(1972); Wilkinson, The Supreme Court, The Equal Protection Clause,

and the Three Faces of Constitutional Equality, 61 VaLRev. 945

(1975); Nowak, Realigning the Standards of Review under the Equal

‘ A-10

LAPPENDIX]

of the test’s application are not yet clearly developed.

Basically, it is a “means focused” ground of review which

subjects certain classifications, such as gender, to a more

critical examination than they would receive under the

deferential lower-tier “rational basis” test but, being less

stringent than the upper-tier “strict scrutiny” review, it

relieves the judiciary of making the numerous value judg-

ments inherent in that analysis.

The most recent, and by far the strongest, enunciation

of this “middle-tier” standard is found in Craig v. Boren,

supra, where the Court struck down Oklahoma's age-sex

differential for sale of 3.2 beer. Obviously expanding the

“rational relationship” standard of Reed, the Court declared

that:

“Classifications by gender must serve important gov-

ernmental objectives and must be substantially related

to the achievement of those objectives,’

[2] Clearly then defendant is not correct in his con-

tention that gender is currently a “suspect” classification

for equal protection purposes.

[3] Under even the heightened review required by

middle-tier analysis, our maternal preference custody pro-

vision of 30 O.S. 1971, § 11 is constitutional.

This is not a situation like Reed or Frontiero where the

sole purpose for the classification is administrative con-

venience. Here, on the contrary, the classification serves the

undisputedly important objective of assuring that children

5 (Continued )

Protection Guarantee-Prohibited, Neutral and Permissive Classifica-

tions, 62 Geo.L.J. 1071 (1974); See also, Craig V. Boren, supra, 429

US. 210-228, 97 S.Ct. 463-473, 50 LEd.2d 415-426 (Powell, J. and

Stevens, J., Concurring Opinions; Burger, C. J. and Rehnquist, J., Dis-

senting Opinions); Wright v. Keiser, Okl., 568 P.2d 1262, 1268

(1977) (Lavender, J., Dissenting Opinion).

6 429 US. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 407.

A-ll

[APPENDIX}

whose parents have severed their marriage relationship,

will be placed in the custody of that parent most

[577 P.2d at 1277]

apt to provide them with the best care and protection.

Neither party challenges the importance of the State's in-

terest in providing for the welfare of its minor citizens,

nor questions the legitimacy of the State’s involvement in

this decision making process,

We are of the opinion that the gender-based means

chosen by our Legislature are substantially related to this

important objective and the classification scheme is con-

stitutional. It is indeed an old notion that a child of tender

years needs a mother more than a father, but defendant

has not persuaded us that this notion is either unsound or

unconstitutional. We believe that consideration of the cul-

tural, psychological and emotional characteristics that are

gender related make this custodial preference one of “those

instances where the sex-centered generalization actually

[comports] to fact.” Craig v. Boren, supra, 429 U.S. at 199,

97 S.Ct. at 458, 50 L.Ed.2d at 408. The statute’s additional

provision that children who are of an age to require educa-

tion and preparation for labor or business should be placed

in the father’s custody further reinforces our decision, This

provision makes clear the essential fact that this statute is

not concerned entirely with the “rights” of parents to their

children, In addition to, and far beyond, their rights, the

paramount purpose of the statute is to serve the welfare

and best interests of children.

We agree with the reasoning of the Supreme Court of

Utah in their recent decision of Cox v. Cox, Utah, 532 P.2d

994, 996 (1975). There a father of young children chal-

lenged the court’s award of custody to their mother, sup-

porting his appeal upon the additional authority of Utah’s

“equal rights” amendment. The Court shared his view that

mothers have no “absolute or invariable right” to custody

and that fathers’ rights and interests are entitled to equal

A-12

(APPENDIX)

and just consideration, The Court stressed however, that

this equality of consideration “does not mean that the law

must pretend to be unaware of and blindly ignore obvious

and essential biological differences.” In light of the statute’s

primary concern—the welfare and adjustment of children—

the Court found that “there is wisdom in the traditional

patterns of thought that the roles of the mother and father

in the family are such that, all other things being compara-

tively equal, the children should be in the care of their

mother, especially so children of younger years; and that

this may be true even where the divorce is granted to the

father,”

[4] There is nothing within this statute which pro-

hibits a judge from placing a child, regardless of his or her

age, with the father where the evidence supports a finding

that the father will be the better custodian and paternal

custody will serve the child's best interests.

[5] The gender preferences of 30 O.S, 1971, § 11, are

intended to direct the trial court's determination of custody

only when the scales are relatively balanced between the

attributes of both parents, and the statute should be used

only in such a situation,

If the Legislature should determine that our contem-

porary social structure demands a change in the traditional

family roles that have been part of our culture since its

beginning, they may enact legislation reflecting that

change. Meanwhile, the expression of those roles as em-

bodied in 30 O.S, 1971, $11, is not unconstitutional,

(6] The evidence in this case did not support the trial

court’s finding that Danny's welfare and best interests

would be best served by placing his custody with his father,

the defendant. Plaintiff was shown to be a fit and proper

person to have Danny's custody and the award of custody

to defendant was clearly against the weight of the evidence.

The trial court did, as urged by plaintiff, abuse his discre-

A-13

(APPENDIX)

tion by ordering Danny’s custody placed with his father

rather than with his mother, as directed by 30 O.S.1971,

$11. Blackwood v, Blackwood, Okl., 229 P.2d 602 (1951);

Waller v, Waller, Okl., 439 P.2d 952 (1968).

[7] As discussed above, certain post-trial proceedings

regarding Danny’s custody pending the outcome of this

appeal were held both in this Court and in the trial court.

In an effort to eliminate the possi-

[577 P.2d at 1278]

bility of future litigation arising by reason of the Special

Master's findings regarding Danny's custody pending this

appeal, we take this opportunity to expressly find that the

issues raised and litigated at that hearing are now moot.

In this appeal from the divorce decree we are not concerned

with whether the Special Master’s award of temporary

custody to defendant was correct based upon the facts pre-

sented at that time and we are of the ovinion that any

further consideration of those facts by the trial court would

be irrelevant and unnecessary.

We REVERSE AND REMAND WITH INSTRUC-

TIONS to place Danny in the custody of his mother and

to hold further hearings to determine the issues of the

father’s visitation periods and the amount of child support.

HODGES, C. J., and IRWIN, BERRY and DOOLIN,

JJ., concur,

BARNES, J., concurs in part, dissents in part.

WILLIAMS, J., joins with BARNES, J.

LAVENDER, V., C. J., dissents.

BARNES, Justice, concurring in part and dissenting

in part:

I concur in that part of the opinion which holds that

30 O.8.1971, § 11, is constitutional. I dissent to that part of

the opinion which finds that the evidence in his case did

A-14

[APPENDIX]

not support the Trial Court’s finding that the child’s best

interest would be best served by placing his custody with

the father.

I am authorized to state that Justice Williams concurs

in the views herein expressed.

WS Awe Oe a et ee ee. <i

APPENDIX B

FILED IN DISTRICT COURT

OKLAHOMA COUNTY, OKLA.

FEB 6 1976

Dan Gray, Court Clerk

Deputy

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

MAXINE DEE GORDON,

Plaintiff,

Vs. No. JFD-75-232

GARY STEPHEN GORDON,

ee a

Defendant.

DECREE OF DIVORCE

This cause came on to be heard before the undersigned

Judge of the District Court in and for Oklahoma County,

Oklahoma, the 26th day of January, 1976, pursuant to regu-

lar setting, upon the Petition for divorce filed herein by

plaintiff and the Counterclaim for divorce filed by the

defendant; and the plaintiff appeared in person and by her

attorney, James M. Little, and the defendant appeared in

person and by his attorney, William B. Rogers;

Whereupon, the parties announced ready for trial and

agreed that said cause may be heard by the Court and

determined on its merits without delay;

And the Court having heard the oral testimony of wit-

nesses duly sworn and examined in open court, the evi-

dence offered on behalf of both parties, and the statements

of counsel, and being fully advised in the premises and on

consideration finds as follows:

B-2

[APPENDIX]

3.

That this Court has jurisdiction of this cause and

of the parties hereto.

That the parties at the time of the filing of the

Petition and Counterclaim herein were and had

been actual residents in good faith of the State

of Oklahoma for more than six months next pre-

ceding the filing of such Petition and such Coun-

terclaim, and were at the time of such filing, actual

residents in good faith of Oklahoma County, and

had been for more than thirty days prior thereto.

That the parties to this action were married on

the 10th day of August, 1969, at St. Louis, Mis-

souri, and have ever since been husband and wife.

That one child has been born of such marriage,

namely, Daniel Jonathan Gordon, born January

28, 1973.

That the parties hereto have during the course of

their marriage acquired certain real and personal

property which is subject to division by this

Court.

That the marriage relationship of the parties has

become incompatible, and both parties are entitled

to be awarded a divorce from the other.

That the best interests and the mental, temporal

and moral welfare of the minor child of the parties

hereto would be best served by awarding of the

custody of such child to the defendant Gary Ste-

phen Gordon.

That the plaintiff, Maxine Dee Gordon, should be

awarded the right and privilege to visit with the

minor child of the parties at reasonable times and

on seasonable occasions.

That the plaintiff, Maxine Dee Gordon, should be

awarded as alimony by the way of support the

10.

11.

12,

13.

14.

B-3

[APPENDIX]

sum of $6,000.00, payable at the rate of $1,000.00

per month for a period of six months beginning

on the first day of February, 1976, and payable

on the first day of each succeeding month there-

after until fully paid.

That the plaintiff, Maxine Dee Gordon, should

have by way of division of property the sum of

$18,000.00, payable at the rate of $200.00 per

month beginning the first day of August, 1976,

and payable on the first day of each succeeding

month thereafter until fully paid, together with

the Monte Carlo automobile now in her posses-

sion, free and clear of any mortgage, or other en-

cumbrance, or if the defendant is unable to effect

delivery of such automobile to the plaintiff, then

the sum of $2,000.00, also payable the first day of

February, 1976.

That the residence of the parties at 2425 N. W.

111th Street in Oklahoma City, Oklahoma, shall

be sold, and the net proceeds from such sale after

payment of mortgage indebtedness and expenses

of sale shall be divided equally between the plain-

tiff and the defendant.

That the personal belongings, including clothing,

shall be awarded to the respective parties.

That the furnishings contained within the resi-

dence of the parties at 2425 N. W. 111th Street

shall be awarded to the defendant, Gary Stephen

Gordon,

That the defendant, Gary Stephen Gordon, should

receive and be awarded as his share of property

of the parties, and to have and possess as his sole

and separate property, free and clear of any claim

or right of the plaintiff therein, in full and com-

plete satisfaction and release of all his property

B-4

[APPENDIX]

15.

16.

rights any and all remaining property, real, per-

sonal, or mixed, not herein specifically awarded

to the plaintiff, which has been acauired by plain-

tiff and defendant, or by the defendant, including

but not limited to the interest of the defendant in

the profit sharing plan of DWG, Inc., d/b/a Sam-

uel Gordon and Company.

That the defendant, Gary Stephen Gordon, should

be relieved from any obligation to pay any indebt-

edness of the parties incurred at any time prior to

the date hereof, except as specifically referred to

herein, except that he shall on or before February

15, 1976, pay the following, if the same have not

already been paid:

1. Jack Blackwell, County Treasurer

of Oklahoma County, 1975 Personal 65.00

2. The Shorthand Revorters, deposition

expense of Gary Stenhen Gordon 79.40

3. Riggs Plumbing, Heating and Aircon-

ditioning Co.—plumbing repair to

residence, 2425 N. W. 111th 197.76

4. Medical Arts Laboratory, Maxine

Gordon 5.00

5. James C. Hammack, D.D.S. 11.00

6. Gerald Rogers, M. D. . 10.00

7. Car Safety Inspection 5.57

8. Residence Roof repair and dishwasher 30.55

9. Service Fees for subpoenas 60.00

That the defendant, Gary Stephen Gordon, shall

pay an additional fee to the plaintiff’s counsel,

James M. Little, in the amount of $500.00, payable

the first day of February, 1976.

Ailes ‘iat nage ‘ain

17.

B-5

[APPENDIX]

That the parties should be required and directed

to execute prover deeds of conveyance, assign-

ments, bills of sale, or muniments of title to each

other to carry out the terms of this decree as

hereinabove more svecifically set forth.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED by the Court as follows:

1.

That this Court has jurisdiction of this cause and

of the parties hereto.

That the parties at the time of the filing of the

Petition and Counterclaim herein were and had

been actual residents in good faith of the State of

Oklahoma for more than six months next preced-

ing the filing of such Petition and such Counter-

claim, and were at the time of such filing, actual

residents in good faith of Oklahoma County, and

had been for more than thirty days prior thereto.

That the parties to this action were married on the

10th day of August, 1969, at St. Louis, Missouri,

and have ever since been husband and wife.

That one child has been born of such marriage,

namely, Daniel Jonathan Gordon, born January

28, 1973.

That the parties hereto have during the course of

their marriage acquired certain real and personal

property which is subject to division by this Court.

That the plaintiff and the defendant be and are

hereby granted an absolute decree of divorce from

the other, and the marriage relation heretofore

existing between them is dissolved, and both

parties are released from the same, provided that

neither party shall be permitted to remarry for a

period of six months next succeeding the date

hereof.

B-6

(APPENDIX)

7.

10.

11.

12.

That the care, custody and control of the minor

child of the parties hereto, to wit Daniel Jonathan

Gordon, be and is hereby awarded to the defend-

ant, Gary Stephen Gordon; the plaintiff, Maxine

Dee Gordon, is awarded the right and privilege to

visit said child at reasonable times and on season-

able occasions.

The defendant is hereby ordered to pay Maxine

Dee Gordon as alimony by way of support the

sum of $6,000.00, payable at the rate of $1,000.00

per month for a period of six months, beginning

the first day of February, 1976, and payable on the

first day of each succeeding month thereafter until

fully paid.

The plaintiff, Maxine Dee Gordon, shall have, by

way of division of property, and the defendant is

hereby ordered to pay, the sum of $18,000.00, pay-

able at the rate of $200.00 per month, beginning

the first day of August, 1976, and payable on the

first day of each succeeding month thereafter until

fully paid, together with the Monte Carlo auto-

mobile now in her possession, free and clear of

any mortgage or other encumbrance, or in the al-

ternative, the sum of $2,000.00, payable the first

day of February, 1976.

The residence of the parties at 2425 N. W. 111th in

Oklahoma City, Oklahoma, shall be sold, and the

net proceeds from such sale after payment of

mortgage indebtedness, and expenses of sale, shall

be divided equally between the plaintiff and the

defendant.

The personal effects, including clothing, of the

parties, are hereby awarded to them respectively.

The furnishings contained in the residence of the

parties at 2425 N.W. 111th Street in Oklahoma

13.

14.

B-7

(APPENDIX)

City, Oklahoma, shall be and become the property

of the defendant, Gary Stephen Gordon.

The defendant, Gary Stephen Gordon, shall re-

ceive and is hereby awarded as his separate share

of the property of the parties, to have and possess

as his sole and separate property, free and clear

of any claim or right of the plaintiff therein, in

full and complete satisfaction and release of all

his property rights, any and all remaining prop-

erty, real, personal or mixed, not herein spe-

cifically awarded to the plaintiff or by the de-

fendant, including but not limited to the interest

of the defendant in the profit. sharing plan of

DWG, Inc., d/b/a Samuel Gordon and Company.

That the defendant, Gary Stephen Gordon, is

hereby relieved from any obligation to pay any

indebtedness of the parties incurred at any time

prior to the date hereof, except as specifically re-

ferred to herein, and excepting further that he

shall on or before the 15th day of February, 1976,

pay the following:

1. Jack Blackwell, County Treasurer

of Oklahoma County, 1975, Personal 65.00

2. The Shorthand Reporters, deposition

expense of Gary Stephen Gordon 79.40

3. Riggs Plumbing, Heating and Aircon-

ditioning Co.,—plumbing repair to

residence, 2425 N. W. 111th 197.76

4. Medical Arts Laboratory, Maxine

Gordon 5.00

5. James C. Hammack, D.D.S. 11.00

6. Gerald Rogers, M. D. 10.00

7. Car Safety Inspection 5.57

8. Residence Roof repair and dishwasher 30.55

9. Service Fees for subpoenas 60.00

B-8

(APPENDIX)

15. That the defendant, Gary Stephen Gordon, shall

pay as additional fee to the plaintiff's counsel,

James M. Little, the amount of $500.00, payable

the first day of February, 1976.

16. The parties and each of them is hereby required

and directed to execute prover deeds of convey-

ance, assignments, bills of sale, or muniments of

title to each other, to carry out the terms of this

decree, as hereinabove more specifically set forth:

and it is ordered by the Court that upon the fail-

ure of either of said parties to execute such instru-

ments within ten days of date hereof, this decree

will operate as such conveyance, as herein pro-

vided.

?

It is further considered and ordered by the Court that

all Orders heretofore entered in this cause be and the same

are hereby vacated and merged with this decree.

s/ Joe Cannon

JUDGE OF THE DISTRICT COURT

APPROVED AS TO FORM:

s/ James M. Little

JAMES M. LITTLE

Attorney for plaintiff

s/ William B. Rogers

WILLIAM B. ROGERS

Attorney for defendant

I, DAN GRAY, Court Clerk for Oklahoma

County, Okla., hereby certify that the foregoing is a

true, correct and complete copy of the instrument

herewith set out as appears of record in the District

Court Clerk's Office of Oklahoma County, Okla., this

6th day of February, 1976.

DAN GRAY, Court Clerk

By (illegible), Deputy

ei anita agit itelste bane

APPENDIX C

| EE

FILED

SUPREME COURT

STATE OF OKLAHOMA

FEB 27 1976

Ross N. LILLarp, Jr.

CLERK

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

MAXINE DEE GORDON, )

Appellant,

vs. ) No. 49,371

GARY STEPHEN GORDON,

Appellee.

PETITION IN ERROR

COMES NOW Gary Stephen Gordon, appellee, by his

attorney William B. Rogers, and for his Petition in Error

shows the Court as follows:

(a) This is an appeal from the District Court in

and for Oklahoma County.

(b) The style and number assigned to the case in

the trial court was Maxine Dee Gordon, plaintiff, vs.

Gary Stephen Gordon, defendant, No. JFD-75-232.

(c) The plaintiff sought divorce from the defendant

on the grounds of incompatibility together with cus-

tody of the minor child of the parties, division of

property, child support, and alimony. The defendant

counterclaimed for divorce by reason of the fault of

the plaintiff and also sought custody of the minor child.

He denied the accumulation by the parties of any joint

property.

C-2

(APPENDIX)

(d) The decision to be reviewed was announced on

January 26, 1976, and Decree of Divorce was signed

and filed on February 6, 1976.

(e) The plaintiff Maxine Dee Gordon filed a Motion

For Reconsideration Of Judgment As To Child Cus-

tody Or In The Alternative For A Motion For New

Trial the 3rd day of February, 1976, which Motion was

overruled the 12th day of February, 1976.

(f) The appellee and counterappellant Gary Ste-

phen Gordon asserts that the trial court erred in find-

ing that the parties had during the course of their

marriage acquired certain real and personal property

which was subject to the division by the court, such

findings being contrary to law and not supported by

the evidence. The court further erred in awarding to

the plaintiff there, Maxine Dee Gordon, alimony by

way of support, such award being not supported by

any evidence, and contrary to law. The court also erred

in attempting to dispose of the residence of the parties

which was acquired through separate funds of the

crossappellant, Gary Stephen Gordon.

(g) The crossappellant, Gary Stephen Gordon, re-

quests the Court to reverse the decision of the trial

court insofar as the same purports to divide any jointly

acquired property of the parties and insofar as the

same awards the plaintiff-anpellant Maxine Dee Gor-

don alimony.

s/ William B. Rogers

William B. Rogers

219 Couch Drive

‘ Oklahoma City, Oklahoma 73102

Attorney for counterappellant

C-3

(APPENDIX)

CERTIFICATE OF MAILING

This is to verify that a true and correct copy of the

above and foregoing Petition In Error was mailed this 27th

day of February, 1976, to James M. Little, Esq., Conner,

Little & Conner, 630 Hightower Building, Oklahoma City,

Oklahoma 73102, and to Arnold Fagin, Esq., Fagin, Hewett,

Mathews & Fagin, Fidelity Plaza, Oklahoma City, Okla-

homa 73102.

s/ William B Rogers

William B. Rogers

A copy of the Petition In Error was also filed with the

Clerk of the District Court of Oklahoma County. There are

no unrepresented parties, and Maxine Dee Gordon is the

only represented party.

s/ William B .Rogers

William B. Rogers