| Opinion: | In re The Marriage of Williamson, 2022 OK CIV APP 14 |
| Subject Matter: | Family Law |
| Date Decided: | November 30, 2021 |
| Trial Court: | District Court of Pottawatomie County |
| Route to this Court: | Mother appealed the trial court’s journal entry stemming from Father’s objection to her moving to Florida with their child G.W for her new husband’s employment, the trial court’s order declining to appoint a primary physical custodian of G.W. and requiring the child to attend private virtual school, the requirement that one parent or step-parent supervise the virtual schooling, and orders regarding child support. |
| Facts: | After their divorce, Mother married a member of the U.S. military, and notified Father that she desired to relocate to Florida with the minor child to her husband’s location of employment. The Father objected, and the parties agreed to equal physical custody with G.W. to alternate six months, which plan lasted until May, 2020. In July, 2019, Mother filed a Motion to Modify Visitation and Child Support because G.W. planned to start school in August, 2020 and the current visitation schedule was unworkable. She requested that the court grant her primary physical custody, subject to Father’s visitation rights. Father filed a response requesting that he be the primary physical custodian and awarded child support. The trial court ordered G.W. to alternate between her parents’ homes every three months and that she attend a virtual private school to accommodate the physical custody schedule. The trial court split the school expenses 50/50 and required that a parent or step-parent be present during the schooling. It also held that neither party pay child support. |
| Standard of Review: | The Court will not disturb a trial court’s discretion in awarding child custody and visitation rights “absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence.” Daniel v. Daniel, 2001 OK 117, ¶ 21. The issue of appointing a primary physical custodian in this case is a question of law, and is reviewed de novo. Child support issues in this case require an interpretation of the applicable child support statutes, presenting a question of law reviewed de novo. See Hub Partners XXVI, 2019 OK 69, ¶ 6. |
| Analysis: | The primary issue before the court was that the trial court erred in appointing a primary custodian of the child. Oklahoma law dictates the procedure for when, a “person who has the right to establish the principal residence of the child” moves more than 75 miles from the child’s principal residence. The Oklahoma Supreme Court has answered that a person who has the right to establish the child’s principal residence is the parent who is deemed the primary physical custodian of the child. So, a court must make that determination before a child can be moved a distance such as this. To even determine when a relocation is proper, courts have to implement a two-step process. First, the parent seeking relocation must show the relocation is made in good faith, and if the parent has, then the objecting parent must show the relocation is not in the child’s best interest. If the good-faith requirement is not met, that parent must show that relocation is in the child’s best interest. A primary physical custodian must be selected in order to apply this analysis and make a ruling on this matter. The child’s best interest shall be the paramount consideration in determining the primary physical custodian. Here, the trial court lost sight of its own role when it ordered that the child enroll in virtual school, despite the parents’ objections, and overstepped to maintain joint legal custody. The court’s focus should have been to determine the primary custodian, then base its following decisions on that determination. The trial court also erred in ordering the Father to not pay child support, because his income tripled that of the Mother’s. The Child Support Guidelines are not optional, and courts may only deviate from award amounts if the deviation is in the best interest of the child. A court may not order a 50% split of payment for private school tuition without making the requisite findings to support how payments for education are divided between parents. Courts may not revoke child care expenses and they “shall determine the actual annualized child care expenses reasonably necessary” for either or both parents to work, seek employment, or attend school or training to increase income. Finally, in its last determination, the Court found that when travel costs are split between parents, the travel costs shall be split in proportion to the gross income of each parent. |
| Outcome: | Reversed and Remanded for Further Proceedings. |
| Vote: | 3-0. Fischer, V.C.J., Rapp, J., Hixon, P.J. (author) concur. |
| Other: | Judge Rapp concurred specially, emphasizing the importance of the child attending a brick-and-mortar school over a virtual school, believing that virtual school in this instance would be a disaster for the child. Whoever the child is not living with should get the child for major holidays and summer vacation. |