Hornbeck v. Hornbeck , 1985 Okla. LEXIS 134 ( 1985 )

SIMMS, Chief Justice,

dissenting:

I respectfully dissent. I do not believe the evidence in this case was sufficient under the guidelines of Gibbons v. Gibbons, Okl., 442 P.2d 482 (1968) to justify modifying the custody order. Also, I agree with appellant that proper application of 12 O.S.Supp.1983, § 1275.4 is wholly dependent on the consent and agreement of both parents to the concept of joint custody, although not necessarily to each specific term, and that the statute is intended to be used only in the initial award of custody.

Under Gibbons, supra, a custody order entered in the divorce decree may not be modified unless movant makes a showing of a permanent, material substantial change in the circumstances or conditions of the parties, which directly affects the welfare of the child to a substantial or material extent, and as a result of which it appears that the child would be substantially better off, with respect to its temporal welfare and its mental and moral welfare, if the requested change in custody were ordered.

Here the mother’s move to Missouri was not shown to be such a permanent, material and substantial change directly affecting the welfare of the child which would enable the movant to justify modification under Gibbons. Reliance on Fletcher v. Fletcher, Okl., 362 P.2d 691 (1961), does not support the majority’s position. Obviously Missouri is much closer to Oklahoma than Bermuda, but much more importantly, Fletcher is a pre-Gibbons decision, and is not useful as to changes of condition now required to support a motion to modify.

During the early portion of this hearing the trial judge recognized this problem, mentioning that while he was convinced that appellee had established enough to increase visitation, he was not sure that the facts would support a modification of the original custody decree. In my opinion, the trial court’s initial assessment was correct. The evidence did warrant an increase in appellee’s visitation rights and supported restructuring those rights, but did not justify any modification of custody.

The award of custody in a divorce matter is clearly a decision addressed to the exercise of the trial court’s sound discretion. The notion of more equal sharing of physical custody of children did not originate with this new statute. Our trial courts have, and have always had, the power to establish custody in the manner which seems to be in the child’s best interest. That power has included the authority to award custody on a split or alternate basis; in other words, alternating physical custody between parents for more or less equal periodic intervals. See for instance, Rice v. Rice, Okl., 603 P.2d 1125 (1979); Gilbert v. Gilbert, Okl., 460 P.2d 929 (1969); Conrad v. Conrad, Okl., 443 P.2d 110 (1968); “Split, divided, or alternate custody of children,” 92 ALR2d 696 (1963).

Our “joint” custody statute envisions by its very terms, something different from mere physical custody shifting over periodic intervals, however. The “legal” custody awarded under the statute does not shift with physical custody but remains with each parent even in the absence of physical custody. Each aspect of “legal” custody is shared by each parent regardless of the physical custody at any particular time. This is a new concept in our custody law. See, “Joint Custody of Children,” 17 ALR 4th 1013. The extent of these differences has not been explored yet by this Court for this is the first decision we have reached under the new statute.

In my opinion, the trial court abused his discretion by modifying the custody award as the requisites of Gibbons were not met by the evidence. It was additional error to apply 12 O.S.Supp.1983, § 1275.4, as this was not an initial award of custody, and the mother did not agree to the imposition of an award of joint custody.