Recent Developments 2009
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Recent Developments in Oklahoma Family Law in 2009

Recent Developments in Oklahoma Family Law in 2009

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  • Thielenhaus – 1995 OK 5, 890 P.2d 925 – not a prevailing party rule.
  • Thielenhaus – 1995 OK 5, 890 P.2d 925 – not a prevailing party rule.
  • Thielenhaus – 1995 OK 5, 890 P.2d 925 – not a prevailing party rule.
  • Thielenhaus – 1995 OK 5, 890 P.2d 925 – not a prevailing party rule.
  • Husband had employer testify that he was a key employee, Options treated like deferred compensation in Carpenter. Ettinger 1981 case – options granted after divorce could not be divided. Factors at work – what is the purpose of granting the option – reward for years of service (accrued during marriage) v. incentive to stay with company (must remain employed after marriage to earn reward). Get copy of option plan, stock option agreement, agreement awarding option.
  • Dad’s income up from 125K per year to 1.3 million.
  • Foster parents are aunt and uncle Attorney for child suggested making child support payment – parents offered and foster parents declined. Other offers tendered after support order entered.
  • Foster parents are aunt and uncle Attorney for child suggested making child support payment – parents offered and foster parents declined. Other offers tendered after support order entered.
  • Trial court found relocation statute unconstitutional. Since reversed on other grounds, supreme court dodged issue. What is the status of Kaiser and 10 O.S. 19 – custodial parent has right to change child’s residence, subject to power of court to restrain parent.
  • Dad’s income up from 125K per year to 1.3 million.
  • Foster parents are aunt and uncle Attorney for child suggested making child support payment – parents offered and foster parents declined. Other offers tendered after support order entered.
  • Dad’s income up from 125K per year to 1.3 million.
  • Dad’s income up from 125K per year to 1.3 million.
  • Thielenhaus – 1995 OK 5, 890 P.2d 925 – not a prevailing party rule.

Recent Developments 2009 Recent Developments 2009 Presentation Transcript

  • Recent Developments In Oklahoma Family Law - 2009 December 3, 10, 2009 Materials – Julie S. Rivers Slides - David A. Tracy Julie S Rivers PLLC Naylor, Williams & Tracy, Inc 512 NW 12th St. 1701 S. Boston Ave. Oklahoma City, Oklahoma 73103 Tulsa, OK 74119 405-232-6357 918-582-8000 [email_address] [email_address]
    • NEW LEGISLATION
  • New Juvenile Code
    • Statutes repealed
      • § 4 – support of children
      • § 5.1 – death of custodial parent
      • § 5A – sibling visitation
      • § 6 – custody to mother of unmarried minor
      • § 7 – allowance to parent of child’s property
      • § 8 – parent control of child’s property
      • § 9 – abuse of parental authority
  • New Juvenile Code
    • Statutes repealed
      • §10 - Emancipation
      • § 11 – Civil action for support of orphans
      • § 12 – Maintenance of disabled adults
      • § 14 – Compensation for voluntary support
      • § 16 – Support after majority
      • § 17 – Control over child’s earnings
      • § 18 – Wages of minor
  • New Juvenile Code
    • Statutes relocated
      • § 5 (grandparent visitation) – 43 O.S. 109.4
      • § 5.2 (access to records) – 43 O.S. 109.4
      • § 13 (necessaries) – 43 O.S. 209.2
      • § 15 (support of stepkids) – 43 O.S. 112.4
      • § 19 (relocation) – 112.2A
      • § 20 (vicarious liability) – 76 O.S. 1.1
      • § 21.1 custody preference) – 43 O.S. 112.5
  • New Juvenile Code
    • Statutes amended
      • 10 O.S. § 7103 – mandatory reporting of child abuse or neglect. “every person” is now a mandatory reporter.
  • New Juvenile Code
    • Obtaining DHS Records
      • 10A O.S. § 1-6-102 – Motion for production
  • Protection From Abuse
    • H.B. 1739
      • 43 O.S. § 109 – rebuttable presumption, not in best interests of child to reside with DV perpetrator.
      • 43 O.S. 110.1 – sets DV limit on public policy favoring “frequent and continuing contact”
      • 43 O.S. 111.1 – visitation limitations in DV cases
      • 43 O.S. 111.4 – child abuse, neglect, DV limits on visitation
      • 43 O.S. 112.6 – mandatory attorney fees for DV victims
    • PROPERTY DIVISON
  • Kennedy v. E. I. DuPont 129 S. Ct. 865 (2009)
    • Decree waives wife’s interest in retirement accounts.
    • Husband changes beneficiary designation on pension, but not on savings and investment plan (SIP)
    • Husband dies, child and wife claim SIP benefits.
    • 5 th Circuit – no QDRO, no waiver
    • Supreme Court says no need for QDRO, but plan documents control
  • Elliott v. Elliott 2009 OK CIV APP 2, ___ P.3d ___
    • Decree awards wife undivided ½ interest in pension.
    • QDRO awards wife a separate interest in plan.
    • Court reviews PBGC publication re “separate” and “shared” interest QDROs
    • Held – affirmed – wife’s interest vested in decree, no prejudice to husband
  • In Re Marriage of King 2009 OK CIV APP 49, 212 P.3d 1232
    • Transfer of assets during marriage to wife.
    • Husband had child support judgment against him.
    • In subsequent divorce action, wife claims assets are separate property
    • Trial court awards property to wife
    • Held – affirmed, property gifted, no fraud
  • McQuay v. McQuay 2009 OK CIV APP 59, ___ P.3d ___
    • Concrete business
    • Trial court value includes $350,000 in “goodwill”
    • Issue – does this business have goodwill?
    • Analysis – is goodwill a distinct business asset, or dependent on personal reputation
    • Held – goodwill personal to husband, not business, reversed
    • CHILD CUSTODY
    • VISITATION
  • Buffalo v. Buffalo 2009 OK CIV APP 44, 211 P.3d 923
    • Motion to modify custody.
    • Sole reason for change, preference of 10-year-old child
    • Trial court granted motion.
    • Court of appeals reversed. Preference of child not well founded.
    • Application of Gibbons standard?
  • Redmond v. Cauthron, 2009 OK CIV APP 46, 211 P.3d 233
    • Trial court – custody to mother
    • Father appeals, wants equal time.
    • Issue – should 43 O.S. 110.1 apply to final custody orders?
    • Held – No
  • Moore v. Moore 2009 OK CIV APP 27, 209 P.3d 318
    • 2001 divorce – joint custody.
    • 2006 move – father does not give statutory notice.
    • Mom objects – trial court says Dad’s move not in good faith.
    • Trial court - Termination of joint custody, sole to mom.
    • Held - affirmed. Denial of relocation, termination of joint custody and sole custody to mom proper.
    • CHILD SUPPORT
  • DHS v. Palmer 2009 OK CIV APP 38, 212 P.3d 491
    • Father owes back child support
    • Father receives death benefits for father’s death under Energy Employees Occupational Illness Compensation Program
    • DHS attaches – father claims exemption
    • Admin court says no exemption – district court says exemption attached
    • Held – exemption does NOT apply
    • ADOPTION - TPR
  • Adoption of L.J.S. 2009 OK CIV APP 60, 216 P.3d 300
    • Mother terminated, father consents w/condition that grandparents have right to visit
    • Child adopted, grandparental rights omitted
    • Motion to enforce denied by trial court
    • Held – should be granted based on history of access, and terms of consent.
  •  
    • DISSOLUTION PROCEDURE
  • Seirafi-Pour v. Bagherinassab, 2008 OK CIV APP 98, 197 P.3d 1097
    • Marriage in Iran 2002 – in US in 2003
    • Prenup included dowry
    • Wife gets green card, separates
    • Trial court annuls marriage based on fraud
    • Held – trial court did not abuse discretion. Affirmed
  • In Re Marriage of Lahman 2009 OK CIV APP 26, 209 P.3d 793
    • Goodwill value of ranch
    • Court appoints appraiser to give opinion of goodwill value.
    • Issue – authority of court to call witnesses
    • Held – Court may call own witnesses under 12 O.S. 2614
  • Cooper v. Cooper 2009 OK CIV APP 73 ___ P.3d ___
    • Motion to set aside decree based on fraud, undue influence.
    • Trial court denies based on pleadings
    • Held – reversed and remanded for hearing on Husband’s factual allegations.
  • In Re Rowe 2009 OK 66, ___ P.3d ___
    • Guardian ad Litem appointed, recommends custody to father
    • GAL appeals award of custody to mother.
    • Held – appeal dismissed, GAL does not have standing.
    • COSTS AND EXPENSES
  • Marriage of Sanel, 2009 OK CIV APP 7, 217 P.3d 141
    • Fee application pending, client files bankruptcy.
    • Firm listed as unsecured creditor, husband as co-debtor.
    • Firm gets relief from stay, pursues fee app.
    • Trial court denies fee claim for wife’s lack of post-discharge standing. Attorney appeals
    • Held – court may consider, but fee award will be property of bankruptcy estate.
  • Nichols v. Nichols 2009 OK 43, ___ P.3d ___
    • Attorneys fees judgment to client; attorneys lien claimed
    • Former client files bankruptcy 2000
    • Former client renews judgment post-discharge, attorney learns of collection effort
    • Trial court enforces lien – COCA reverses
    • Held – client is constructive trustee of fee award.
  • Recent Developments In Oklahoma Family Law - 2009 December 3, 10, 2009 Materials – Julie S. Rivers Slides - David A. Tracy Julie S Rivers PLLC Naylor, Williams & Tracy, Inc 512 NW 12th St. 1701 S. Boston Ave. Oklahoma City, Oklahoma 73103 Tulsa, OK 74119 405-232-6357 918-582-8000 [email_address] [email_address]