¶1 In this post-paternity action, Appellant/Plaintiff, James Steven Snyder (Father), appeals from the trial courts journal entry denying Fathers motion for new trial or in the alternative motion to reconsider. Father requested the trial court to reconsider its judgment modifying the courts emergency custody and visitation order and awarding Appellee/Defendant, Erica Lynn League (Mother), sole custody of the parties minor child and reinstating Fathers previous visitation with a few modifications. Father contends the trial court abused its discretion when it denied his motion for a new trial because the court should have entered a judgment granting Father equal-time with the minor child and the court should have issued findings of fact and conclusions of law as mandated by 43 O.S. 2021 § 110.1. Father also contends the trial court should have granted a new trial because it erroneously failed to apply 43 O.S. 2021 § 112.2(B)(3) and award Father custody due to Mothers substance abuse. Father also challenges the trial courts evidentiary rulings when it excluded Fathers evidence of Mothers substance abuse treatment and when it admitted certain exhibits and hearsay evidence over Fathers objection. We hold § 110.1 is inapplicable to this paternity proceeding. We further hold the trial court consider § 112.2(B)(3) when it awarded Mother sole custody of the child and reinstated Fathers previously awarded visitation. We finally hold Father failed to show he was prejudiced by the trial courts evidentiary rulings and that such rulings did not amount to reversible error. Because we hold in this matter, we cannot find the trial court abused its discretion when it denied Fathers motion for a new trial. The trial courts order and the underlying custody judgment are affirmed.
¶2 Mother and Father were never married. The minor child was born June 8, 2018, and resided with Mother. Father filed a paternity action, and the court entered an agreed judgment December 2018 awarding Mother legal and primary physical custody of the minor child and Father supervised visitation. The court also entered a protective order against Father and in favor of Mother. In July 2020, the court lifted the requirement that Fathers visitation be supervised. On December 16, 2020, the court granted the parties shared physical custody with equal-time.
¶3 In December 2020, Mother was involved in a single car accident and the minor child was in the vehicle. Mother was arrested and charged with child endangerment, child neglect, leaving the scene of the accident, possession of controlled dangerous substances and driving under the influence of drugs. Father obtained temporary emergency custody of the child on December 29, 2020. The court suspended Mothers visitation. Mother pled guilty to the charges and received a deferred sentence. Mother entered drug rehabilitation. In January 2021, Father moved to modify custody and visitation. Father cited the vehicle accident as the material substantial permanent change in conditions that warranted changing the primary physical and legal custody of the child to Father and modifying Mothers visitation. Mother objected to Fathers motion, and she requested the court to “grant her such other and further relief as is just and equitable.”
¶4 At the trial on Fathers motion to modify, Mother testified that she is a veterinarian. She acknowledged her drug addiction and discussed her time in drug rehabilitation. Mother testified she became dependent upon pain killers - ketamine - after she had surgery for a dog mauling. Mother testified she has been drug-free over a year; she is extensively drug tested by the Oklahoma Health Professionals Program (OHPP); and she no longer works with or around controlled substances. She stated she can modify her work schedule to accommodate her daughters needs. Mother testified and produced recordings and written evidence showing that Father was verbally abusive towards Mother in the childs presence; he denied Mother visitation when he was angry at Mother; and he demanded sex from Mother in exchange for visitation. Mother testified that without her permission, Father sold Mothers clothing and personal effects at a garage sale. The evidence also showed that after Father obtained emergency custody of the child, Father was criminally charged for violating protective orders on behalf of Mother.
¶5 Father produced evidence concerning Mothers accident and her drug dependency. Father attempted to elicit testimony from Mother regarding her conversations with her therapist and other records while Mother was inpatient at a drug treatment center. Mothers counsel objected to this line of questioning citing 12 O.S. 2021 § 2503, the patient/counselor privilege. The court disallowed this evidence.
¶6 On January 30, 2023, the court entered an order denying Fathers motion to modify custody and visitation. The court reinstated the parties agreed-to order awarding Mother sole legal custody of the child and awarding Father visitation in accordance with the physical custody schedule filed January 14, 2021, along with a few modifications. Father now appeals.
¶7 For his first assignment of error, Father contends the trial court erred when it failed to grant his motion for new trial. This Court will reverse a trial courts order denying a motion for new trial only if we determine the trial court acted arbitrarily, clearly abused its discretion, or erred on some pure, unmixed question of law. Dominion Bank of Middle Tenn. v. Masterson, 1996 OK 99, ¶16, 928 P.2d 291. Father timely filed his motion for new trial within ten days after the filing of the final judgment,
1
consequently, his post judgment motion for new trial extended his time to appeal the trial courts final custody judgment. See 12 O.S. 2021 § 990.2. We also point out the resolution of this assignment of error depends on whether this Court finds the trial court committed reversible error in the underlying post-paternity custody/visitation modification proceeding. We thus address the merits of Fathers assignments of error related to the underlying judgment modifying custody and visitation.
¶8 The trial courts paramount consideration in a custody/visitation proceeding is the best interests of the child. Daniel v. Daniel, 2001 OK 117, ¶21, 42 P.3d 863. The trial courts underlying judgment in this post-paternity modification action is an equitable matter; thus, the trial courts ruling will not be disturbed unless it is against the clear weight of the evidence respecting the childs best interests. Manhart v. Manhart, 1986 OK 12, ¶14, 725 P.2d 1234. In custody modification matters, this Court gives great deference to the trial courts judgment because the trial judge is better able to determine controversial evidence by observing the witnesses and their demeanor. Id. at ¶15. Father, as the appealing party, has the burden to show that the trial courts decision is erroneous and contrary to the childs best interests. Daniel at ¶21.
¶9 Father argues the trial court erred when it sua sponte modified and reduced Fathers parenting time because Mother did not plead for or request such relief. Father contends he was denied due process because he was not provided with notice that the court may modify the equal-time visitation; thus, he was not prepared to address this issue at trial. We reject this assignment of error. Once Father invoked the trial courts modification jurisdiction, the court had the equitable authority to enter a custody/visitation order in the childs best interests. See 43 O.S. 2021 § 112(C)(3). The courts jurisdiction regarding the care and custody of a minor child is continuing and the court on its own motion may make any reasonable order as may be necessary for the minor childs custody (and visitation) and such order may be changed from time to time. Danielle v. Thomas, 1960 OK 202, ¶10, 355 P.2d 1000.
¶10 Furthermore, Mothers response to Fathers motion to modify specifically requested that Mother be granted “such other and further relief as is just and equitable.” Father was provided with notice that Mother objected to his motion to modify and she sought just and equitable relief on her own behalf. Accordingly, we reject Fathers attempt to wrench jurisdiction from the trial court to modify the equal-time visitation order.
¶11 Father next argues the parent-child relationship is a fundamental relationship. We agree with this statement of law. Father also contends Oklahoma public policy as set forth in 43 O.S. 2021 § 110.1 dictates Father should have equal-time with the child, absent a showing of detriment. He claims the trial court committed reversible error by failing to adhere to this public policy. Initially, we dispel Fathers claim that § 110.1 is applicable in this paternity proceeding. Section 110.1 provides:
It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. The court may consider evidence of the ability of the parents to cooperate on issues related to their minor children, as well as evidence of domestic violence, stalking, or harassment as defined in Section 109 of this title. To effectuate this policy, if requested by a parent, the court may provide substantially equal access to the minor children to both parents at a temporary order or final hearing, unless the court finds that shared parenting would be detrimental to the child. The court shall issue findings of fact and conclusions of law to support its decision after a final hearing on the merits. (Emphasis added.)
Section 110.1, by its language, is limited to separation and dissolution of marriage proceedings. Mother and Father were never married. We therefore conclude § 110.1 is inapplicable in this post-paternity custody and visitation proceeding.
¶12 Father next argues the trial court erred when it failed to issue findings of fact and conclusion of law as required by § 110.1. Because we hold § 110.1 is inapplicable in a paternity proceeding, we further hold the trial court was not bound by § 110.1s mandate for court-issued findings of fact and conclusions of law.
¶13 Even if § 110.1 was applicable (which it is not), we reject Fathers claim that there was no evidence of detriment which would negate the “equal-access” presumption of § 110.1. The record contains evidence of Fathers angry outbursts towards Mother in front of the child, Mothers protective orders against Father, and Fathers written threats to withhold Mothers access to the child whenever Father disagreed or was angry with Mother. When evaluating a parents behavior regarding visitation, “[t]he determinative factor ․ must be the effect of the questioned behavior on the welfare of the child.” Gorham v. Gorham, 1984 OK 90, ¶14, 692 P.2d 1375. The court observed Fathers demeanor, considered Mothers evidence consisting of the parties texts and emails, and listened to recorded conversations between Mother and Father. Based on this evidence, it was not error for the court to conclude that Fathers coercive and violent behavior and verbal abuse of Mother, sometimes in the childs presence, necessitated the reduction of his equal-time and the reinstatement of the prior agreed to visitation schedule.
¶14 While § 110.1 is inapplicable to this paternity proceeding, 43 O.S. 2021 § 112(C)(3) provides guidance with respect to visitation in paternity matters. That section states, in part:
When in the best interests of the child, custody shall be awarded in a way which assures the frequent and continuing contact of the child with both parents. When awarding custody to either parent, the court:
a. shall consider, among other facts, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent[.]
Father has not sustained his burden of showing that the trial court failed to consider these statutory mandates in making its visitation decision. We therefore reject Fathers contention that the trial court abused its discretion and committed reversible error when it failed to provide him equal-time with the child.
¶15 For his next assignment of error, Father asserts the trial court committed reversible error in granting sole custody to Mother because it failed to consider 43 O.S. 2021 § 112.2(B)(3). This section provides:
There shall be a rebuttable presumption that it is not in the best interests of the child to have custody or guardianship granted to a person who:
3. Is an alcohol-dependent person or a drug-dependent person as established by clear and convincing evidence and who can be expected in the near future to inflict or attempt to inflict serious bodily harm to himself or herself or another person as a result of such dependency.
Based on the trial courts announcement at the conclusion of trial, the trial court considered Mothers drug dependency and her extensive rehabilitation efforts as well as Fathers behavior in making its custody decision. The court stated Mother has her “act together a little better than [Father] does,” and awarded custody to Mother. Furthermore, Father failed to produce evidence that Mothers sobriety was at risk or that Mother could be expected, in the near future, to cause bodily harm to herself or the child. We therefore reject this assignment of error.
¶16 For his next assignment of error, Father argues the trial court erred when it excluded Fathers evidence relating to Mothers record at an inpatient treatment facility. The court excluded this evidence under 12 O.S. 2021 § 2503 (physician and psychotherapist-patient privilege.) Father claims this evidence was necessary to impeach Mothers claim that she is not an addict. At trial, Mother testified “I did have an addiction, yes.” She also testified she will be monitored by the veterinary board for five (5) to ten (10) years, she no longer works around veterinary controlled substances, and she will have five (5) years of drug monitoring. Based on Mothers own admissions, this excluded evidence was not necessary to impeach Mothers testimony.
¶17 Father finally claims the trial court erred when it allowed Mothers hearsay evidence from DHS and allowed Mother to present exhibits that Mother only provided a week before trial. Evidentiary rulings concerning the admission of evidence are measured against the abuse of discretion standard. Holm-Waddle v. William D. Hawley, M.D., Inc., 1998 OK 53, ¶5, 967 P.2d 1180. Father, as the party objecting to the courts evidentiary rulings, has the burden of showing that the rulings were prejudicial. Doyle v. Douglas, 1964 OK 65, ¶10, 390 P.2d 871. The test of prejudice is the likelihood the result would have been different had the evidence been admitted. Hartford Ins. Co. of Midwest v. Dyer, 2002 OK CIV APP 126, ¶17, 61 P.3d 912. This was a bench trial; thus, this Court usually assumes the trial court disregarded incompetent evidence when rendering its judgment, unless the contrary clearly appears. Duke v. Duke, 2020 OK 6, ¶26, 457 P.3d 1073. Father failed to show how he was prejudiced by these rulings, that the trial court improperly considered incompetent evidence or that the outcome of the trial could have been different had this evidence been excluded.
¶18 AFFIRMED.
Citationizer© Summary of Documents Citing This Document
Cite Name Level None Found. Citationizer: Table of Authority
Cite Name Level Oklahoma Court of Civil Appeals Cases Cite Name Level 2002 OK CIV APP 126, 61 P.3d HARTFORD INSURANCE COMPANY v. DYER 912, Discussed Oklahoma Supreme Court Cases Cite Name Level 2001 OK 117, 42 P.3d 863, 72 OBJ DANIEL v. DANIEL 3708, Discussed 1960 OK 202, 355 P.2d 1000, DANIELLE v. THOMAS Discussed 1964 OK 65, 390 P.2d 871, DOYLE v. DOUGLAS Discussed 1996 OK 99, 928 P.2d 291, 67 OBJ Dominion Bank of Middle Tennessee v. Masterson 2798, Discussed 2020 OK 6, 457 P.3d 1073, DUKE v. DUKE Discussed 1998 OK 53, 967 P.2d 1180, 69 HOLM-WADDLE v. HAWLEY OBJ 2341, Discussed 1984 OK 90, 692 P.2d 1375, Gorham v. Gorham Discussed 1986 OK 12, 725 P.2d 1234, 57 Manhart v. Manhart OBJ 877, Discussed Title 12. Civil Procedure Cite Name Level 12 O.S. 2503, Physician- and Psychotherapist-Patient Privilege Discussed 12 O.S. 653, Time for Filing Application for New Trial Cited 12 O.S. 990.2, Post-Trial Motions - Matters Taken Under Advisement - Costs, Attorney Cited Fees, and Interest Title 43. Marriage Cite Name Level 43 O.S. 110.1, Policy for Equal Access to Minor Children by Parents Discussed 43 O.S. 112.2, Custody, Guardianship, Visitation - Mandatory Considerations Discussed 43 O.S. 112, Care, Custody, and Support of Minor Children Discussed
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FOOTNOTES
1
. Title 12 O.S. 2021 § 653(A) dictates a motion for new trial must be filed not later than ten (10) days after the judgment is filed. Section 653(B) provides if the moving party does not prepare the judgment, the motion must be filed not later than ten (10) days after the earliest date on which the court records show a copy of the judgment was mailed to the moving party.
ROBERT D. BELL, VICE-CHIEF JUDGE:
SWINTON, P.J., concurs and DOWNING, J., (sitting by designation), concurs in result.