Petty v. Petty

Petty v. Petty
1995 OK CIV APP 12
890 P.2d 1364
656 OBJ 882
Case Number: 82801
Decided: 01/24/1995

KELLY J. PETTY, APPELLANT, v. JULIA A. PETTY, NOW FORRESTER, APPELLEE.

Appeal from the District Court of Mayes County; Dynda Post, Judge.

AFFIRMED.

Randall Elliott, Pryor, for appellant.
K. Ellis Ritchie, Pryor, for appellee.

MEMORANDUM OPINION

CARL B. JONES, Judge

¶1 In this post-divorce action, the trial court below entered an order modifying an earlier order from an Arkansas court by restricting the visitation permitted to Appellant under the earlier order. On appeal, Appellant contends the Oklahoma court did not have jurisdiction in this case; that the evidence was insufficient to support the order of the trial court; and, that attorney's fees and costs were improperly awarded to Appellee.

¶2 The parties were divorced in Arkansas in 1990. Custody of their two minor children (now ages 12 and 10) was awarded to Appellee/Mother. Appellant/Father was granted visitation rights for every third weekend, every other major holiday, for one week during the Christmas holidays, every other spring break, and for four weeks during the summer. Following the divorce, Appellee and the children moved to Oklahoma. Appellant has continued to live in Arkansas, in the county where the divorce was granted.

¶3 In July, 1993, Appellee filed a motion to modify the Arkansas decree seeking to restrict Appellant's visitation rights. She alleged the children had been subjected to physical and mental abuse by Appellant while they were with him in Arkansas during periods of visitation. This motion was filed in Mayes County, Oklahoma, the domicile of Appellee and the children. Jurisdiction of the Oklahoma court was sought under the provisions of the Uniform Child Custody Jurisdiction Act, 43 O.S. 1991

¶4 Appellant's jurisdictional argument is that the Arkansas court never lost jurisdiction and a foreign court in Oklahoma could not properly assume jurisdiction. Both Arkansas and Oklahoma have enacted the Uniform Child Custody Jurisdiction Act.

¶5 Here, the mother and two children had moved to Oklahoma after the divorce. They have now resided in Oklahoma for several years. The father, however, still resides in Arkansas. Similar facts were considered in G.S. v. Ewing, 786 P.2d 65 (Okla. 1990), in determining whether Oklahoma, as the decree entering state, could retain jurisdiction to modify custody where only the father continued to reside in Oklahoma. There it was held that under 10 O.S. 1981

¶6 Arkansas, however, has interpreted the Uniform Child Custody Jurisdiction Act differently. As our Supreme Court noted in G.S. v. Ewing, Arkansas does not recognize the continuing jurisdiction of the decree entering state, Bell v. Bell, 288 Ark. 468, 705 S.W.2d 891 (1986), and thus, under its own law, Arkansas does not presently have jurisdiction to hear this proceeding. 786 P.2d at 70 n. 19. The issue thus becomes merely whether Oklahoma meets one of the jurisdiction prerequisites under

¶7 Appellant also contends that Oklahoma courts were further prevented from exercising jurisdiction by the Parental Kidnapping Prevention Act, 28 U.S.C.A.

¶8 The second error alleged by Appellant was that the evidence was insufficient to justify the modification order. We disagree. There was evidence of physical abuse by Appellant, of excessive alcohol consumption by Appellant in the presence of the children and of his drinking while driving with the children in the car. There was also evidence that the children had been adversely affected emotionally. Although this evidence was not undisputed, we cannot say the modification order was against the clear weight of the evidence so as to constitute an abuse of the trial court's discretion.

¶9 The final error briefed by Appellant is that the award of attorney fees and costs to Appellee was improper because the trial court lacked jurisdiction over the case. However, because we hold the trial court had jurisdiction, it was within its authority under 43 O.S. 1991

¶10 No reversible error has been identified and the order of the trial court must therefore

¶11 AFFIRMED.

¶12 HANSEN, P.J., and JOPLIN, J., concur.

Footnotes:

1 See Ark.Stat.Ann. ' ' 9-13-201-9-13-227 and 43 O.S. 1991 ' ' 501 -527 .