Shaw v. Hoedebeck

Shaw v. Hoedebeck
1997 OK CIV APP 69
948 P.2d 1240
68 OBJ 3833
Case Number: 87292
Decided: 11/13/1997

LISA JAN HOEDEBECK, now SHAW,

MARSHALL COUNTY, - JOHN H. SCAGGS, JUDGE

AFFIRMED

Bradley D. Brickell, Christine R. Fritze, Stephen M. Morris, Oklahoma City, Oklahoma,

GARRETT, Judge

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¶6 Lisa contends the court erred in awarding custody to Raymond based on her religion because there was no finding that her religious beliefs were harmful to the children. She contends her freedom of religious rights under the First Amendment to the United States Constitution have been violated by placing custody with Raymond. She contends the portion of the order which prohibits either parent from interfering with the children participating in the religious life and worship of the other parent is merely superficial.

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Because both parties sought termination of the joint custody arrangement, and because the joint custody arrangement was, in fact, terminated, the trial court was obligated to award primary custody as if custody was being awarded in the first instance. See 43 O.S. 1991 §109 (G). In reviewing such custody orders, deference will be given to the trial court since the trial court is better able to determine controversial evidence by its observation of the parties, the witnesses and their demeanor.Manhart, supra, at 1237.

¶11When custody of minor children is the issue, the primary consideration is always to be what is in the best interest of the children.David v. David, 460 P.2d 116 , (Okl. 1969). One who challenges the trial court's determination on custody, based on the best interests of the children, has the burden of demonstrating an abuse of discretion, and must put forth the evidence relied upon to establish the trial court's error and must affirmatively show how this evidence shows the trial court's decision to have been contrary to the children's best interests.David v. David, supra,Gibbons v. Gibbons, 442 P.2d 482 (Okl. 1968), andGorham v. Gorham, 1984 OK 90 ,692 P.2d 1375 . Absent such a showing, the trial court's determinations are presumptively correct. Cf.Carpenter v. Carpenter, 1982 OK 38 , 645 P.2d 476 .

¶12It must be noted that custody orders will not be disturbed on appeal unless found to be against the clear weight of the evidence.Carpenter v. Carpenter, supra,Lynn v. Lynn, 443 P.2d 106 (Okl. 1968),Manhart v. Manhart, 725 P.2d 1234 (Okl. 1986). InAlonzo v. Alonzo, 1996 OK CIV APP 48, 917 P.2d 1014, a child custody case, this Court said:

Our job on review is not to second guess the fact finder, but only to ascertain whether there was sufficient competent evidence introduced to support the trial court's decision when the correct law was applied.

¶13Based on an examination of the record and considering the totality of the evidence, we cannot say that the trial court's judgment is contrary to the weight of the evidence. We are unable to classify the child custody order as being a violation of Lisa's First Amendment, freedom of religion, rights. We hold that the record supports the trial court's order as being consistent with the best interests of the minor children.

¶14AFFIRMED.

JONES, P.J. and ADAMS, C.J., concur.

FOOTNOTES

1The children were born on June 16, 1983, and February 8, 1985, respectively. At the time of the divorce they were approximately 9 and 11 years of age. At the time the custody order, which is involved in this appeal, was entered, they were approximately 11 and 13 years of age.

2The evidence appears to establish the fact that Lisa's fears were not well founded.