Appellant: Steve Ingle
Appellee: Kristine Ingle
( Goodman )
( Pittsburg County - Thomas M. Bartheld )
AFFIRMED
Ellen Quinton, McAlester, Oklahoma, For Appellee
Beverly Q. Watts, WATTS & WATTS, Oklahoma City, Oklahoma, For Appellant
OPINION
Kristine Ingle (Wife) appeals the trial court's January 25, 2011, Decree of Dissolution of Marriage awarding custody of their minor child to Steven Ingle (Husband). Based on our review of the record and applicable law, we affirm.
FACTS
On April 20, 2009, Husband filed an application for determination of paternity and request for determination of custody, child support, and visitation, seeking a judicial determination of the paternity of the minor child JI and custody thereof Wife answered, admitting Husband was the biological father of JI, but denying that Father was a fit and proper person to have custody. Wife further cross-petitioned for dissolution of marriage, asserting the parties were married on July 15, 1989.
A temporary order was entered on April 29, 2009, providing Husband had confessed the parties were married and that the action was properly a divorce action. The order further provides the parties would utilize shared parenting with Wife having custody of JI during the school week and Husband having custody of him during the weekend.
A trial was subsequently held on February 1 and 2, 2010. A decree of dissolution of marriage was entered by the trial court on January 25, 2011, dividing the parties' martial estate and debts and awarding custody of JI to
Husband, with visitation to Wife. Wife appeals.
STANDARD OF REVIEW
Custody orders will not be disturbed on appeal unless found to be against the clear weight of the evidence. Atkinson v. Atkinson, 2006 OK CIV APP 124, 12, 149 P.3d 1055, 1057-58 (citing Hoedebeck v. Hoedebeck, 1997 OK CIV APP 69, 12, 948 P.2d 1240, 1243 (citations omitted)). "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." Id.
ANALYSIS
On appeal, Wife asserts the trial court erred in awarding custody of the minor child to Husband without specifying a reason for the change of custody from the temporary custody arrangement and without a finding that there had been a material change of condition which substantially impacted the best interests of the minor child. Husband disagrees, asserting the trial court did not abuse its discretion in awarding him custody of the minor child. Husband further contends the court's determination was an initial custody determination and that the Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482, standard is therefore inapplicable. Gibbons is applicable when a non-custodial parent seeks custody from the sole custodial parent. Atkinson, 2006 OK CIV APP 124, at 14, 149 P.3d at 1058; see also 43 O.S. 112(A)(3) (2001-2010). To prevail under Gibbons, a non-custodial parent must show 1) a permanent, substantial, and material change of conditions which directly affects the best interest of the child, and 2) as a result of such change in conditions, the child would be substantially better off, with respect to its temporal, mental, and moral welfare if the change in custody was granted. Gibbons, 1968 OK 77, at 12, 442 P.2d at 485.
Upon reviewing the record, we agree with Husband that Gibbons is inapplicable in the present case. The record provides the trial court entered a temporary order on April 29, 2009, awarding the parties joint custody of the minor child. The order was temporary in that it served to name custodians of the minor child pending the final adjudication of the divorce. See S.W. v. Duncan, 2001 OK 39, 12 & fn.3, 24 P.3d 846, 850 & fn.3 ("It is well known that temporary custody orders occur with great frequency, that they may be modified during a divorce proceeding, and that the final adjudication of custody may, or may not, be awarded to the party exercising temporary custody. ... A District Court's temporary order in a divorce proceeding is not entitled to res judicata effect when that court makes its final adjudication of the matters in the divorce.") The trial court's final adjudication of custody in the decree of divorce was therefore the initial custody determination. It is from this determination that Wife properly appeals.
In a divorce action the trial court is vested with discretion in awarding custody and visitation. Daniel v. Daniel, 2001 OK 117, 21, 42 P.3d 863, 871. The best interest of the child is the paramount consideration of the trial court when determining custody and visitation. On issues regarding the best interest of the child, the standard of review is whether the decision of the trial court is against the clear weight of the evidence or an abuse of discretion. Wood v. Redwine, 2001 OK CIV APP 115, 15, 33 P.3d 53, 57. One who challenges the trial court's determination on custody must demonstrate an abuse of discretion by setting forth evidence to establish error and affirmatively demonstrating that the evidence establishes the custody determination is contrary to the best interests of the child. Gorham v. Gorham, 1984 OK 90, 14 fn. 4, 692 P.2d 1375, 1378 fn. 4; Hoedebeck v. Hoedebeck, 1997 OK CIV APP 69, 11, 948 P.2d 1240, 1243. Absent such a showing, the trial court's determinations are presumptively correct, and this Court will not "second guess the fact-finder . . . ." Alonzo v. Alonzo, 1996 OK CIV APP 48, 6, 917 P.2d 1014, 1016. In reviewing custody decisions, we give deference to the trial court because it "is better able to determine controversial evidence by its observation of the parties, the witnesses, and their demeanor." Moore v. Moore, 2009 OK CIV APP 27, 7, 209 P.3d 318, 320 (citing Hoedebeck, 1997 OK CIV APP 69, at 10, 948 P.2d at 1243).
Upon reviewing the record on appeal, we find Wife has failed to satisfy her burden of establishing the trial court's decision was contrary to the child's best interest. "The appellant bears the undivided responsibility for producing to a court of review a record that will adequately demonstrate error in the trial court's decree because the findings are contrary to the weight of evidence.
The appealing party must include in the record for appeal all materials necessary for corrective relief" Ray v. Ray, 2006 OK 30, 12, 136 P.3d 634, 637 (citations omitted). This Court will not presume error. The appellant must produce a record sufficient to show that the custody award was contrary to the child's best interest. Fleck v. Fleck, 2004 OK 39, 9, 99 P.3d 238, 240. Otherwise, this Court will presume that no prejudicial error was committed by the trial court. "Without examining all the evidence considered by the trial court at that hearing, we cannot conclude, as we must in order to reverse, that the trial court's decision was clearly against the weight of the evidence." Marsh v. Marsh, 2007 OK CIV APP 60, 7, 165 P.3d 358, 361 (citations omitted).
The record on appeal includes the parties' respective home studies providing both parties are fit parents, documentation indicating Wife completed counseling and parenting classes, Husband's judgment and sentence for domestic assault and battery on Wife in 2003, and limited excerpts from the February 1 and 2, 2010, trial. No other evidence from the trial appears in the record. The substandard record Wife chose to submit for our review fails to disclose those factors necessary for this Court to analyze in determining where the clear weight of the evidence lies and is insufficient to show the trial court committed error. In short, Wife failed to meet her burden to provide for this Court's review a record which overcomes the presumption of correctness of the trial court's decision.
Accordingly, the January 25, 2011, decree of divorce granting Husband custody of the minor child with visitation to Wife is affirmed.
AFFIRMED.
RAPP, J., and THORNBRUGH, J., concur.