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Richards v. Richards

Court of Appeals of Oklahoma, Division I

August 18, 2017

WAYNE A. RICHARDS, Petitioner/Appellee,
v.
RACHAEL M. RICHARDS, Respondent/Appellant.

          Mandate Issued: 09/20/2017

         APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY, OKLAHOMA HONORABLE DAWSON ENGLE, JUDGE AFFIRMED

          Charles M. Laster, Shawnee, Oklahoma, and MaryGaye LeBoeuf, Oklahoma City, Oklahoma, for Appellant,

          Marianne Miller, Amanda C. Dockrey, Shawnee, Oklahoma, for Appellee.

          Larry Joplin, Judge

         ¶1 Mother, Rachael Richards, appeals the trial court's order, filed December 15, 2015, modifying custody, visitation and child support. In the order, the trial court found Mother did not have a good faith basis to relocate with the children and Father, Wayne Richards, met the Gibbons standard so that custody, visitation and child support should be modified making Father the primary custodial parent. Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482.

         ¶2 Mother and Father were married in October 2004 and divorced in April 2014. There were two children born during the marriage, H.R., born in 2005, and J.R., born in 2012. Mother was awarded "the exclusive care, custody and control of the minor children[, ]" subject to Father's reasonable visitation, including the "Pottawatomie Standard Visitation Schedule" which was attached to the divorce decree. [1] Mother was awarded the marital home in Tecumseh, Oklahoma and was to make the mortgage payments thereafter. Father also continued to reside in the Tecumseh area.

         ¶3 During the course of the marriage, Mother was the children's primary caregiver, taking the children to the doctor, attending parent-teacher conferences and generally dealing with the children's day to day needs. Father became more involved in the children's day-to-day matters after the divorce.

         ¶4 After the divorce, Mother was unable to make the mortgage payments on the Tecumseh home and was in imminent danger of foreclosure. As a result, she considered moving from Tecumseh pending the foreclosure. She proposed moving with the children to Hugo, Oklahoma, approximately 138 miles from Tecumseh. On January 28, 2015, Mother filed a notice of relocation in which she gave an address for a rental home in Hugo and said she planned to enroll in a nursing program in Hugo. Father filed an objection on February 4, 2015 and a motion to modify custody on February 20, 2015. Mother moved from Tecumseh on March 15, 2015. When Father contacted Mother to find out where she had gone, she responded by text saying, "to Hugo, like I said in the relo papers." Father filed an amended motion to modify custody on June 5, 2015. Mother filed a response and counter-motion on June 18, 2015. The trial court conducted the hearing on the competing motions to modify on September 29th and October 19th and issued the appealed from order on December 15, 2015.

         ¶5 Instead of moving to Hugo, as Mother had originally stated in her relocation notice, Mother actually moved to Rattan, Oklahoma, a community a few miles north of Hugo. Mother did not move into the rental home, the address for which she provided in the relocation notice. Instead, Mother moved into the home of her boyfriend's parents in Rattan, Oklahoma. [2] Mother's boyfriend lived in a separate residence on the property near his parents' home. In addition, Mother did not enroll in the nursing program, nor had she been attending classes at the time of the October 2015 hearing at which the court considered the motion to relocate. The nursing classes began only weeks earlier in August 2015. Mother testified it was her desire to eventually enroll in the nursing classes, after she was able to save some money and find a reliable means of transportation. Mother did not provide any updates, changes or amendments to her January 2015 relocation notice as her living arrangements and school plans changed, nor did Mother provide notice she and the children were moving into the home of her boyfriend's parents, instead of into the Hugo rental home address provided in her relocation notice.

         ¶6 The 2014 divorce decree included relocation provisions outlined in 43 O.S. Supp.2008 §112.3 (D), describing notice and hearing requirements in the event either parent moved more than 75 miles from their current residence. The language in the decree included:

A. The relocating party shall mail (or serve in the manner provided for service of summons) a Notice of Intent to Relocate containing the following information in writing to the other party, and any other person entitled to visitation with the child, on the terms set out herein:
1. the intended new address, including the specific address, ...

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