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Mullendore v Mullendore

Case No. 108740 (OK Ct. Civ. App., Nov. 9, 2012)

Eric Vance Mullendore (Father) appeals the denial of his motion to modify custody and related rulings. Finding no error, we affirm.

BACKGROUND



The parties were divorced in June 2007. An August 2007 order awarded custody of the parties' four minor children, aged three to six at the time, to Sabrina P. Mullendore (Mother). Father undertook various efforts to address concerns regarding his parenting ability raised by the district court during the initial divorce proceedings. On November 19, 2008, Father filed a motion to modify the August 2007 order in which he sought joint custody and equal visitation with the children. Mother filed a "counter-motion" to modify seeking to reduce Father's current visitation and to terminate the parenting coordinator previously appointed by the court. The district court denied Mother's motion to reduce Father's visitation but granted her motion with respect to termination of the parenting coordinator. Father appeals the denial of his motion to modify, the order terminating the parenting coordinator and the award of attorney fees to Mother.

STANDARD OF REVIEW



Custody contests are of equitable cognizance, and although an appellate court may examine and weigh the evidence, the findings and decree of the trial court cannot be disturbed unless found to be against the clear weight of the evidence or an abuse of discretion. Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871; Mueggenborg v. Walling, 1992 OK 121, ¶ 7, 836 P.2d 112, 114. We will affirm a district court's determination with respect to a request to modify a child custody order unless "the trial court's decision is clearly against the weight of the evidence so as to constitute an abuse of discretion." Williamson v. Williamson, 2005 OK 6, ¶ 5, 107 P.3d 589, 591. "An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." In re BTW, 2008 OK 80, ¶ 20, 195 P.3d 896, 908 (footnote omitted).

ANALYSIS



Father's appeal raises three issues for disposition. A fourth issue, that Mother relied on facts not in the record during her written closing argument, will not be considered. Father did not object after receiving Mother's closing argument or notify the district court of his position regarding the challenged statement. Generally, this Court does not reach issues the appealing party fails to raise in the district court, and we decline to do so here. Bottles v. State ex rel. Oklahoma State Bd. of Med. Licensure and Supervision, 1996 OK 59, ¶ 4, 917 P.2d 471, 472; Jackson v. Jackson, 2002 OK 25, n.12, 45 P.3d 418.
 

 

Judge(s): John F. Fischer
Jurisdiction: Oklahoma Court of Civil Appeals
Trial Court Judge(s)
Mark Ihrig

 
Court of Appeals Judge(s)
Deborah Barnes
John Fischer
Jane Wiseman

 
Appellant Lawyer(s) Appellant Law Firm(s)
Bradley Grundy Hall Estill Hardwick Gable Golden & Nelson PC
Suzanne Kern Hall Estill Hardwick Gable Golden & Nelson PC
Jada Stiner Hall Estill Hardwick Gable Golden & Nelson PC
Richard Wagner, II Hall Estill Hardwick Gable Golden & Nelson PC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Pamela Anthony Anthony & Associates PLLC
Jon Brightmire Doerner Saunders Daniel & Anderson LLP
Sam Daniel Doerner Saunders Daniel & Anderson LLP

 

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Click the maroon box above for a formatted PDF of the decision.
¶1 i respectfully concur in result with part ii of the majority's opinion. although father order. court's decision is clearly against the weight of the evidence so as to constitute an abuse these children be removed from their present surroundings and concludes that continuing the parenting coordinator is in the children's best interests although not the version of the statute in effect when the district court decided this preference by a child can support a trial court's decision to modify custody."); beougher 6 father argues, in essence, that the district court appointed the parenting coordinator for a court did not err." hamid v. sew original, 1982 ok 46, ¶ 6, 645 p.2d 496, 497. foshee v. foshee, 2010 ok 85, n.6, 247 p.3d 1162, 1167. affirmed parenting coordinator all contributed to her doubt about the parenting coordinator's permanent, substantial and material change of conditions directly affecting the best of father is at odds with the august 28, 2007 order appointing the parenting coordinator. the father relies on several cases from our court of civil appeals in support of his record indistinguishable from facts on which stanfield was decided. court to "consider the expression of preference." 43 o.s.2011 § 113(d). cf. in re father's family may have given him financial assistance, the record does not support a substantially improve the temporal, mental and moral welfare of the minor children. decision. evidence from another witness, the parenting educator, established that father it is also worthy of note that the order appointing the parenting coordinator required the 917 p.2d 471, 472; jackson v. jackson, 2002 ok 25, n.12, 45 p.3d 418. gibbons v. gibbons, 1968 ok 77, ¶ 12, 442 p.2d 482, 485.2 v. initial request is not included in the record. "the appellant bears the total responsibility may have supported him and helped him finance his lawsuit, his income is far less than provisions of a joint custody plan, and hogue v. hogue, 2008 ok civ app 63, 190 p.3d preference, as asserted in father's offer of proof, would not have justified a change of court's order terminating the appointment of the parenting coordinator or the order 2010 ok 85, ¶ 22, 247 p.3d 1162, 1170. the award of attorney fees to mother is determine if the gibbons requirements have been met." id. ¶ 18, 211 p.3d at 927. we effect of that change on the children. "[a]pplicant must show that the change in conclude father's litigation conduct does not support the trial court's award of attorney and cited in gibbons for stating one of the "basic rules" for determining a motion to division ii that made her defense of his motion to modify custody "extraordinarily complex." she preparation for their trial testimony. she also concedes not all of these professionals were time with him. v. state ex rel. oklahoma state bd. of med. licensure and supervision, 1996 ok 59, ¶ 4, that father had achieved a level of parenting skill where he could spend "good quality correctly states, prevailing party status does not determine who qualifies for attorney fees. time with his children," the goal expressed by the district court in its 2007 custody of the parenting coordinator did not state the parenting coordinator was terminated for the attorney fees she incurred during these proceedings. as a result, the district court's supreme court declined to do so. parenting classes was necessary. father also entered an offer of proof, that had his "[l]egal error may not be presumed in an appellate court from a silent record. the bradley a. grundy, richard a. wagner, ii, suzanne e. kern, jada stiner, hall, cite as: 2012 ok civ app 100, __ p.3d __ douglas, 1964 ok 65, ¶ 10, 390 p.2d 871, 874. the test of prejudice is the likelihood the i. change in custody the present case the trial court initially appointed the parenting coordinator for a parenting coordinator and the award of attorney fees to mother.1 if the court so finds, then the child may express such preference or give ¶4 father's appeal raises three issues for disposition. a fourth issue, that mother relied on l.l.p., tulsa, oklahoma, and pamela l. anthony, anthony & associates, coordinator. he argues the evidence demonstrates that interaction and communication parte meetings with the parenting coordinator, and the size of the file compiled by the decided: 09/24/2012 district court concluded that the younger boy "should not be separated" from his older court's previous custody order in this case. likewise, we find no error in the district wiseman, j., concurs, and barnes, p.j., concurs as to part i, concurs in result as to 2004 ok civ app 6, 83 p.3d 911, both involve the children's preference when stanfield, 1960 ok 55, ¶ 8, 350 p.2d at 263. founded and supported by reasons justifying that preference. id. ¶ 17, 211 p.3d at 927 within the sound discretion of the court, not to be disturbed unless there exists a clear change custody). further, the fact pattern here is essentially identical to the facts in was terminated for cause, but rather the order was focused on each parent's continued 19, 2008, father filed a motion to modify the august 2007 order in which he sought joint argues that the "inordinate time" spent by father with the parenting coordinator, his ex october 29, 2009 hearing, and the record reflects that the district court declined to do so. as a reason for termination of the parenting coordinator. the court found that the for including in the appellate record all materials necessary to secure corrective relief." longer exist." the court ordered the parties to "effectively and civilly communicate with iii. attorney fees parties' four minor children, aged three to six at the time, to sabrina p. mullendore moreover, the trial court's order awarding attorney fees to mother also specifically states midwest v. dyer, 2002 ok civ app 126, ¶ 17, 61 p.3d 912, 916. father has failed to judicial balancing of the equities." thielenhaus v. thielenhaus, 1995 ok 5, ¶ 19, 890 "when the trial court determines the child's best interest will be served by considering see r., p. 18, august 28, 2007 order, paragraphs 8-9. activities, read books to his children's classes and coached their sports teams. outside of we agree. gibbons, and those cases addressing the modification of an existing custody attorney fees. father correctly cites the controlling authority: in matrimonial cases, footnotes p.2d 925, 935. see king v. king, 2005 ok 4, ¶ 30, 107 p.3d 570, 581. the district court's respondent/appellant children been permitted to testify, they would have testified they wanted to spend equal ¶6 mother's characterization of the parenting coordinator's actions as biased and in favor d. if the child is of a sufficient age to form an intelligent preference, the justify a change in custody. in buffalo, this court also addressed the relevance of the in his care. she testified that father was invested in his children's lives, she had no result would have been different had the evidence been admitted. hartford ins. co. of nevertheless argues that the trial court abused its discretion in terminating the parenting that determination twice in this case. however, the district court's ruling on father's custody in this case based on the gibbons analysis for the reasons we have previously "[t]he court makes no specific finding of impropriety regarding [father's] actions" in mullendore v. mullendore including an order appointing a parenting coordinator, to facilitate the district court's conditions or circumstances affects the welfare of the children and that a change in analysis against him.3 be served by allowing the child to express a preference as to which parent limits to or periods of visitation, the child may express a preference as to it is reversible error for the trial court not to interview the child to ascertain the reasons "makes specific findings that the case is a high-conflict case," and that it is in the best 7 to part iii: opposite is true. absent a record showing otherwise, this court presumes that the trial 120.3(a) that attempted to curtail the ability of the trial court to modify any order, parenting coordinator is affirmed. 43 o.s.2011 § 120.3(a). the order of the district court terminating the services of the ¶3 moreover, § 120.3(b) provides that upon objection of either party to the appointment equitable award of attorney fees to mother and we find that it does so here. see foshee, sam p. daniel, jon e. brightmire, doerner, saunders, daniel & anderson, pursuant to 43 o.s.2011 § 120.3(b) and, therefore, the trial court erred in terminating the of discretion occurs when a decision is based on an erroneous conclusion of law or where the termination of joint custody based solely on the father's improved circumstances). ("nazworth stands only for the proposition that if the child requests a change of custody, cases including those already in the appellate pipeline." id. ¶ 20, 237 p.3d at 156-57. one custody which is altogether different. in that context, we have not addressed the child based on his preference, holding: "under both case law and statutory law, a well- a. in any action or proceeding in which a court must determine custody or discretion. daniel v. daniel, 2001 ok 117, ¶ 21, 42 p.3d 863, 871; mueggenborg v. appeal from the district court of creek county, oklahoma in effect. second, even if permitted to testify, "the preference of the child is just that -- a ¶9 i see no compelling equities that reasonably favor an award of attorney fees to mother the court of civil appeals of the state of oklahoma, ¶7 further, as mother concedes, it was the trial court that established a complex array of given the opportunity to approve the father's interpretation of hogue and nelson, the cause; rather, the order stated the parenting coordinator's services were terminated concerns about his parenting capacity and that she did not believe continuation of find nothing in this record suggesting the district court should have made such a finding which the trial court is required to consider." foshee v. foshee, 2010 ok 85, ¶ 13, 247 1 neutrality and, thus, her attorney's need to spend time trying to find "evidence of the argument. the court of civil appeals opinions are not binding on this court, but even if background john f. fischer, chief judge: agree with buffalo.6 gibbons test in evaluating a child's section 113 preference, holding "the child's any other change of circumstance." id. ¶ 4, 83 p.3d at 913.5 supp. 2002 § 113. parenting coordinator. i agree with the majority opinion and conclude no error was of" the children's well being while in the care and keeping of the other. in ordering the attorney fee awards do not "depend on one's status as prevailing party in the case, [and] p.3d 896, 908 (footnote omitted). court's discretion." ynclan, 2010 ok 29, ¶ 13, 237 p.3d at 152. of a parenting coordinator, "[t]he court shall not appoint a parenting coordinator" unless it granting mother's motion for attorney fees, and we affirm those orders. custody and equal visitation with the children. mother filed a "counter-motion" to modify ability raised by the district court during the initial divorce proceedings. on november thielenhaus v. thielenhaus, 1995 ok 5, ¶ 19, 890 p.2d 925, 935. rather, "[i]n domestic improvements in his ability to safely care and provide for the minor children" since the 2010 ok civ app 142, ¶ 7, 245 p.3d 630, 633 (citation omitted). as is stated in the fees to mother and conclude the award was an abuse of its discretion. therefore, i would and appointment of the parenting coordinator, mother, argues that it was father's actions children, and consequently, whose reports caused both parties to expend money in custody and visitation order. dilbeck, ¶ 12, 245 p.3d at 634. consequently, although in might have been the more appropriate course in this case. further, "the entire ok civ app 142, ¶ 12, 245 p.3d 630, 634, we rejected this overly restricted reading of show that if considered, the evidence of his children's preference would have changed the gibbons: non-custodial parent sought a change in custody showing non-custodial parent's 5 ¶5 father's principal argument in this appeal is that the district court erred in finding that court shall consider the expression of preference or other testimony of the in the present case there has been a showing that defendant is now in a result. position regarding the challenged statement. generally, this court does not reach issues the burden of proof of making it appear that the change in her condition would result in should have custody or limits to or periods of visitation with either parent. affirmed. conducting such an in camera interview and whether the child is of a sufficient age to the guidelines for determining whether children should testify in custody and/or determining custody or modifying custody. rather, it is merely one of many factors v. beougher, no. 94,648 (okla. ct. app. sept. 4, 2001) (noting that section 113 allows ¶13 a child's preference "should never be the only basis for determining custody." ynclan minimum of ten years and cannot change that appointment. in dilbeck v. dilbeck, 2010 disturbed unless found to be against the clear weight of the evidence or an abuse of denied. the controlling statute provides, in part: communicate directly . . . ." nothing in the court's order states the parenting coordinator under these circumstances. consequently, contrary to the majority's conclusion, i child in determining custody or limits to or periods of visitation. v. woodward, 2010 ok 29, ¶ 12, 237 p.3d at 151 (footnote omitted). therefore, even if one another involving the children," and ordered "each shall . . . keep the other apprised made that moved the case away from being one of high-conflict. benefit to the children and their welfare. . . . defendant's change of facts not in the record during her written closing argument, will not be considered. father issues continue to cause some problems between the parents that upset the children. he guidelines will set forth the due process standards from which we will measure objections because the case was no longer high-conflict as required by 43 o.s.2011 § 120.3(b). barnes, p.j., concurring as to part i, concurring in result as to part ii, and dissenting as the trial court to exercise its discretion in determining whether a child will be allowed to preference is the only change which has occurred, nor do we do so today. seeking to reduce father's current visitation and to terminate the parenting coordinator however, there has been no showing that such home and environment is parties to each pay fifty percent of the parenting coordinator's fees. mother has pointed to school, father's home was a safe, healthy environment for the children; he helped them used just to defend against father's motion. father took full opportunity to avail himself court's order, including the finding that, because of his lack of financial resources, father circumstances alone do not satisfy the gibbons v. gibbons test for changing the district ¶17 affirmed. and related rulings. finding no error, we affirm. honorable mark a. ihrig, trial judge concur with the majority that the order of the district court terminating the services of the the fact that two parents are now able to provide the environment on which the district bears the burden of proving that: (1) subsequent to the order sought to be modified, a changed, in a manner that adversely affects the children, since the entry of the 2007 but that use was not found to appropriate weight to be given to a child's preference when the child's change in of his children because "a child's stated custody preference can support a modification the child's choice or wishes and shall take all factors into consideration in better than that provided by plaintiff and that a change would be of greater conclusion other testimony. determination with respect to a request to modify a child custody order unless "the trial estill, hardwick, gable, golden & nelson, p.c., tulsa, oklahoma, for mother's. see stepp v. stepp, 1998 ok 18, ¶ 20, 955 p.2d at 727. moreover, while visitation proceedings were adopted in ynclan v. woodward, 2010 ok 29, 237 p.3d 145. ¶12 we have followed the nelson and nazworth decisions in eimen v. eimen, 2006 ok that thirteen-page order expressly provides for ex parte meetings between the parenting reversed the order modifying the original custody order because: "mother failed to sustain ¶4 i, however, respectfully dissent to part iii of the majority opinion. as the majority coordinator and the individual parents, their attorneys, and other professionals involved for the change of custody . . . if the best interest test is met, a reasoned expression of preference. we have never held that child preference is 'the' deciding factor when award was not "punitive in nature" and recognizes father's legitimate interest in pursuing made these proceedings "extraordinarily complex." that conduct is summarized in the the boy's being substantially better off, in those respects, if his custody were changed articulated.7 which of the parents the child wishes to have custody or limits to or determination "cannot be made fairly and reasonably without hearing from the child." id. case, the current version is in all respects material to this appeal identical to 43 o.s. district court's september 29, 2009 minute order reflects that father's request to have the 19, 955 p.2d 722, 726-27. although father was not fully successful because he did not ii. termination of parenting coordinator involved in determining a motion to modify previously ordered visitation. scott v. scott, brother "in order to avoid jeopardizing that bond." id. ¶ 1, 83 p.3d at 912. 43 o.s.2011 § 113.3 preference. mandate issued: 11/09/2012 parenting coordinator is affirmed. "requirements for appointment of a parenting coordinator under 43 o.s. § 120.3 no ¶2 "an abuse of discretion occurs when a decision is based on an erroneous conclusion of (preference should be "for good reasons and well supported by the facts"). father's 1177, regarding the preference of a fifteen-year-old. in buffalo v. buffalo, 2009 ok civ children to testify regarding their preference as to the custody and visitation issues. the ¶8 further, mother's income is significantly greater than father's. although his family children younger than twelve are of sufficient age to form an intelligent preference, we court's authority to alter its custody and visitation orders is provided in 43 o.s.2011 § law, or where there is no rational basis in evidence for the ruling." dilbeck v. dilbeck, argument ignores this aspect of the nazworth decision, arguing that preference alone can 3 child's preference and the reasons underlying it can be considered and evaluated to 55, ¶ 0, 350 p.2d 261 (affirming the denial of the non-custodial parent's motion to modify abuse of discretion." edwards v. andrews, davis, legg, bixler, milsten & murrah, inc., 1 app 44, 211 p.3d 923, we reversed a change of custody based solely on the preference of without proof of any other change of circumstances." father's argument is derived from although ynclan was decided after the district court's 2009 ruling, "following these this court's opinion in nazworth v. nazworth, 1996 ok civ app 134, 931 p.2d 86, eric vance mullendore, respondent/appellant. (mother). father undertook various efforts to address concerns regarding his parenting the mandated process of judicial balancing of the equities." stepp v. stepp, 1998 ok 18, ¶ judgment in the action." it is well established that a parent seeking to modify custody mother filed a motion to strike portions of father's reply brief, on which the oklahoma ¶7 the district court concluded that as admirable as father's efforts had been, becoming a evidentiary ruling has the burden of showing that the ruling was prejudicial. doyle v. ¶ 6, 931 p.2d at 88. in nelson v. nelson, 2004 ok civ app 6, 83 p.3d 911, this court be improper and should not, in my view, be used as a vehicle for taxing attorney fees determining the best interest of the child. the court shall not be bound by in the case. as previously stated, the court's august 2010 order terminating the services ¶2 the parties were divorced in june 2007. an august 2007 order awarded custody of the the appealing party fails to raise in the district court, and we decline to do so here. bottles the district court had allowed the preference of these children to be presented, their father's visitation but granted her motion with respect to termination of the parenting entry of the 2007 custody order. father's evidence established that he attended majority opinion, in dilbeck we rejected an overly restricted reading of 43 o.s.2011 § family members. the district court awarded mother approximately twenty-five percent of must be granted only to that litigant who qualifies for the benefit through the process of a of the very resources established by the court for his use.2 periods of visitation. of visitation). although section 113 does not preclude the district court from finding that preliminary determinations concerning whether the child's best interest is served by clearly, the district court made the child's preference, whether to hold such an interview is generally within the trial civ app 23, 131 p.3d 148, considering preference of three children, aged fourteen, they were, hogue v. hogue, 2008 ok civ app 63, 190 p.3d 1177, and nelson v. nelson, sixteen and eighteen in regard to their father's motion to modify the physical custody years of age or older is of a sufficient age to form an intelligent interviewing the child does not diminish the discretion of the court in ¶15 finally, father contends the district court erred in granting mother's motion for previously appointed by the court. the district court denied mother's motion to reduce 3 to or allegations concerning due process issues in custody/visitation cases in all future 2001 ok 9, ¶ 5, 19 p.3d 273, 275. relied on nazworth and section 113 to affirm the change of custody of a twelve-year-old did not object after receiving mother's closing argument or notify the district court of his nor lacking in merit. id. ¶ 20, 955 p.2d at 727. the depth of the majority's analysis in attain equal custody of his children and his litigation strategy was characterized by the from the father to her." gibbons, 1968 ok 77, ¶ 24, 442 p.2d at 487. we also find this communicate by email and text messaging if they were unable to "effectively and civilly conditions alone is not sufficient reason, in our opinion, to require that ¶1 eric vance mullendore (father) appeals the denial of his motion to modify custody ¶10 father's offer of proof only provides that if the children would have been permitted to see treva krivohlavek kruger, gibbons v. gibbons, the burden of proof for a change ¶6 as the district court noted and the record shows, father had made "significant father's counsel sought reconsideration of the court's denial of father's request at the october 14, 2009, father's counsel announced that the court had ruled on that request. children's testimony presented to the court was taken under advisement. at the hearing on conflict. father's concession that this case is no longer high-conflict further supports the conclusion that he has no financial obligation to them. see thompson v. thompson, no. 99,393, slip op. at 8 (okla. ct. app. aug. 24, 2004) the ten-year-old child. we noted that nazworth required the child's preference to be well- footnotes using the parenting coordinator. minimum of ten years, the court was within its discretion to modify that order. conferences with his children's teachers, participated in school field trips and other partiality of the parenting coordinator." express a preference as to custody). court's original custody order was predicated is insufficient to justify a change in that with respect to these children. "admissibility of evidence in a cause tried to the court is order, have focused the analysis not only on a change in circumstances but also on the according to the district court's findings had a "strong bond" with his older brother. the with their homework and extracurricular activities, provided transportation when transplanted into an entirely new environment. visitation] whenever circumstances render the change proper either before or after final examine and weigh the evidence, the findings and decree of the trial court cannot be applying the gibbons standard. 112(a)(3): "[the court may] modify or change any order [providing for custody or interests of the minor children has occurred; and (2) a change in custody would better parent, in and of itself, did not automatically entitle father to a change in custody. position to provide a home for these children in a good environment. hulsey v. mid-america preferred ins. co., 1989 ok 107, ¶ 7, 777 p.2d 932, 936. further, matters," they "may be granted only to that litigant who qualifies for the added benefit by there is no rational basis in evidence for the ruling." in re btw, 2008 ok 80, ¶ 20, 195 mother argues that the parenting coordinating was terminated for cause pursuant to § in nelson, the court also considered the testimony of the younger brother, aged 7, who david v. david, 1969 ok 164, ¶ 6, 460 p.2d 116, 117. similar considerations are than the twelve years of age that would create a rebuttable presumption requiring the testify, they "'uniformly and unanimously have said that they wish to spend more time in marriage of crouch, 2010 ok civ app 144, 247 p.3d 747 (holding the district court p.l.l.c., tulsa, oklahoma, for petitioner/appellee c. there shall be a rebuttable presumption that a child who is twelve (12) awarding custody or limits of or period of visitation. founded custody preference by a child will support a change of custody without proof of interests of the children to appoint the parenting coordinator. both findings are required.1 ¶8 absent from this record is any evidence that mother's home or her parenting has modifying custody from one parent to the other, not modifying or terminating joint itself supports this conclusion. preference does not allow the court to bypass the obstacles articulated in gibbons, but the these children were between the ages of five and eight years old, substantially younger custody order. cf. johnson v. wingert, 2011 ok civ app 128, 268 p.3d 145 (reversing trial court's decision that a parenting coordinator was no longer needed. consequently, i order is based on extensive findings regarding father's conduct, which the court found of discretion." williamson v. williamson, 2005 ok 6, ¶ 5, 107 p.3d 589, 591. "an abuse 1982 ok 72, ¶ 21, 650 p.2d 857, 863. further, the party objecting to the court's the use father was making of the parenting coordinator. in my view, such an adjustment the court properly relied on evidence that demonstrated the case was no longer high- ¶11 finally, father argues that the district court erred in failing to consider the preference concedes the evidence shows this case is no longer considered high-conflict, he no place in the record where she or the court sought to modify that percentage based on form an intelligent preference." id. ¶ 19, 237 p.3d at 156.4 determination of the question must be in the light of what is the child's best interest." sabrina p. mullendore, petitioner/appellee, case number: 108740; cons. w/109254 trial court as "extraordinarily complex," in my view his arguments were neither frivolous ¶5 although father was required to defend against mother's motion to modify visitation ¶9 father also contends that the district court erred in denying his request to permit his more time with his children. nonetheless, father's litigation conduct can support an p.3d 1162, 1166-67. third, at the time of the hearing on the parties' motions to modify, coordinator. father appeals the denial of his motion to modify, the order terminating the ¶3 custody contests are of equitable cognizance, and although an appellate court may note that the district court did grant father partial relief by ordering the "2/2/5/5" plan father requested for the summer months and affirming father's expanded visitation then efforts to effectively and civilly communicate with the other, efforts the parents already 4 professionals to assist father with developing parenting skills in the best interests of the of custody since 1968, 83 obaj 1709 (2012), for a comprehensive review of cases b. the court shall first determine whether the best interest of the child will was able to conduct the litigation in the manner he did only because of the support of his 120.3(g)(2); however, nothing in the court's august 27, 2010 order supports that reason committed. coordinator testified that father did not give any of his children preferential treatment and of the guidelines established requires the district court to "make and state on the record its termination of the parenting coordinator's services, the court ordered the parties to necessary and sound nutritional meals while the children were in his care. the parenting reverse the order awarding attorney fees to mother. his evidence was insufficient to warrant a change in custody and visitation. the district had acquired, in her opinion, excellent parenting skills and that the children were thriving walling, 1992 ok 121, ¶ 7, 836 p.2d 112, 114. we will affirm a district court's part ii, and dissents as to part iii. supreme court deferred ruling to the decisional stage. mother's motion to strike is their father's custody,' i.e., no less than 50/50 time sharing with their parents." first, we 2 standard of review 2 circumstances had changed. the gibbons court found that evidence insufficient and erred in refusing to entertain the preference of a twelve-year-old child regarding periods custody would result in greater benefit to the children." stanfield v. stanfield, 1960 ok ¶14 father also appeals the district court's termination of the parenting coordinator. division ii ¶16 the district court did not err in denying father's motion to modify. father's changed 2012 ok civ app 100 the father in foshee made the same argument made by father in this case. although holding that where a thirteen-year-old child requested a change in custody that


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