Stephen v. Stephen , 937 P.2d 92 ( 1997 )

ALMA WILSON, Justice:

Lynn Stephen, now Martin, appellant, was granted an uncontested divorce from Mark Stephen, appellee, on March 29, 1989. Martin was granted custody of their two boys, bom in August 1982, and June 1987. During the 1994-1995 school year Martin quit her job to educate the boys at home. In response, Stephen filed a motion to modify custody alleging that Martin was not qualified to serve as their teacher, and that a home-school education was not in their best interests. After a five-day hearing, the court concluded that the children were probably better off with Martin, but that she was not qualified to educate her children at home. The court ordered a change in custody from Martin to Stephen unless the children were placed in public school. Martin appealed, and her motion to retain was granted.

The dispositive issue is whether the evidence supports the trial court’s determination that home schooling had a direct and adverse effect on the children. We find the evidence does not establish that Lynn Martin’s home schooling of her two boys adversely affected their best interests. We hold that when the trial court found this home schooling was not in the best interest of the children, and ordered a change of custody unless the children were returned to public school, such change was against the clear weight of the evidence, and was an abuse of discretion. Accordingly, we reverse the order.

I. Procedural Issues

Before reaching the evidentiary issue, we address two preliminary issues: 1) whether the change of custody is an appeal-able order; and 2) whether the appellant has accepted the benefits of the order. The modification order appears to be conditional, rather than a final order. However, the conditional aspect of the judgment was removed after October 10, 1995, the time limitation for Martin to enroll the two boys in public school.¹ When an order embodies a conditional judgment and the conditional nature of the judgment has been removed by the passing of the time limits set by the trial court, the order is final and appealable.² Generally, a court of equity may render such judgment as will meet all the exigencies of the litigation and equitably settle all conflicting rights. In granting the necessary and proper relief the court may attach to such grant any reasonable conditions that to it seem proper.³ In this case, whether the boys would continue to live in the familiar and suitable home provided by the mother was conditioned upon the mother’s behavior, and the condition was intended to coerce the mother’s behavior.⁴ Early in the custody dispute, the mother heeded the trial court’s warnings and re-enrolled her older son in public school. Having already placed the older child in public school, when the trial court pronounced its custody order, Martin advised the trial judge that she would comply by enrolling her younger son in public school. Coerced compliance with the conditions in the custody order is not tantamount to acceptance of the benefit of a judgment that

waives the right of appeal.⁵

II. Changed Circumstances and Child’s Best Interests

Title 43 O.S.Supp.1994, § 112(A)(3) authorizes a trial court to modify a child custody order “whenever circumstances render such change proper_”⁶ This language has remained unchanged since Gibbons'v. Gibbons.⁷ Gibbons held that parents requesting modification must establish (1) a permanent, substantial and material change in circumstances; (2) the change in circumstances must adversely affect the best interests of the child; and, (3) the temporal, moral and mental welfare of the child would be better off if custody is changed.⁸ In a hearing upon a motion to modify, the burden is upon the applicant to show a substantial change in conditions since the entry of the last order or decree which bears directly upon the welfare and best interest of the child.⁹ On appeal, a trial court order modifying child custody will be affirmed if the evidence supports a finding that the child is directly and adversely affected by the substantial change of circumstances.¹⁰ Before the trial court, Mark Stephens took the position that Lynn Martin was not qualified to home school the boys because she had no formal education beyond high school, and therefore, the home schooling adversely affected the boys. The testimony and exhibits, however, do not support a finding that Lynn Martin’s home schooling directly and adversely affected the best interests of her children.

The five days of hearings were spread from July 11, 1995, to October 6, 1995. The evidence shows that before Martin decided to start educating the boys at home, Stephen did not follow any pattern of regular visitation. Although he attempted to explain this, the proof was that until Stephen filed his motion to modify custody, visitation with his older son was sporadic, and visitation with his younger son was almost nonexistent. Stephen admitted on cross-examination that Martin was “a great mother,” and that he filed his motion because he “didn’t feel she was giving them a quality education in teaching them herself at home.”

The trial court appointed its own expert for psychoeducational-psychological evaluation. Her tests revealed that the older boy was “bright to superior” in intelligence, and the younger boy “high average to bright.” At the beginning of the 1994H995 school year, both boys were behind a grade level for their ages. The older boy would have started the sixth grade and the younger boy would have started the first grade in the public school system. After one year of home schooling, the Iowa Tests of Basic Skills given in June of 1995, revealed that the older boy had earned a composite grade equivalent of 8.5, meaning that his test performance was approximately the same as that made by a typical student in the eighth grade at the end of the fifth month. As a comparison, at the end of his fifth grade year in public school, the Iowa Test of Basic Skills stated that his overall achievement was about average for his grade. The younger boy’s composite score grade equivalent was 2.4, that is, second grade, fourth month. The report of the court’s expert indicated that the older boy was capable of achieving at the tenth grade level. The court’s expert reported that the younger boy is achieving between second and third grade in all basic academic areas, which findings are consistent with the Iowa Test scores. The expert observed that the younger boy had made good academic progress even though his achievement is not at expectancy for his age and ability. The court’s expert concluded that both boys could handle whatever decision the court made.

Dr. Raymond Moore, a witness for Martin, and whose doctorate was in teacher education and developmental psychology, was offered as an expert witness in home education, developmental psychology and teacher education. The court accepted him as an expert without an objection from Stephen’s counsel. Dr. Moore described Martin as a very attentive, devoted and pensive mother. He concluded that she was doing an excellent job of teaching her boys. Although Dr. Moore preferred his home school program to the one being used by Martin because his program involved “study, work, and service,” he observed that both boys were doing above the national norm based on the 1995 Iowa Test scores. Those tests were taken after the 1994-1995 year of home schooling. Dr. Moore observed that only in one or two areas were they below the national norm. He testified that on several of the skill levels, both boys had scored 100 percent correct. Although there were areas in which she could improve, Dr. Moore testified that the test results indicated that great credit must be given to Martin as a home schoolteacher. He observed that with proper coaching she could do very, very well. When asked if the mother would be disqualified as a home schoolteacher because she overlooked some misspelled words on spelling tests, Dr. Moore replied that the main concern of the mother was braiding character and ability to deal with life, so, putting first things first, the boys were really very well educated. They had manners, were industrious, and helped around the house. He concluded that she did an outstanding job that would not be done in any classroom.

Another of Martin’s witnesses was Glenn Kastner, Director of Special Services for Putnam City Public Schools. He had not met either of the boys, nor the parties until the day of the hearing. He evaluated the older boy’s Iowa Tests. Kastner testified that the older boy had shown a dramatic growth in his reading ability and that he was ready for the seventh grade. At the time of the hearing, as noted above, the older boy was back in public school for the 1995-1996 school year, in the seventh grade. Kastner had checked with the boy’s counselor and found that he had an A in science, a B in social studies, a B in English, and was enrolled in Honors Mathematics where he was maintaining a B. For the younger boy, Kastner did not have the benefit of being able to compare Iowa Tests taken before and after one year of home schooling, like Kastner did with the older boy. But Kastner testified that the younger boy’s scores were all in the average to above-average range and that placing him in the second grade at Putnam City would not be a problem.

Lynn Martin testified that the course material she orders to teach her boys includes teacher’s editions, children’s manuals, tests and quizzes. She visits the library every two weeks to get additional reading material for both boys. She orders biographies of sports heroes who are her older son’s favorites, and even a biography of Colin Powell that he enjoyed. The boys took art classes on Mondays and engaged in physical education classes on Tuesdays that included football, soccer, and baseball at Metropolitan Baptist. When asked what she would do if her older son asked her a question she could not answer, she replied that she would figure it out with him, but if they could not figure it out, and she was not able to teach a course, she would put him in a school where he could learn.

While the trial court finds in its order that Martin is not capable of educating her children properly because of her limited formal education, and cannot educate the children to a normal level, the standardized tests, tests of the court’s expert, and testimony of the witnesses are all to the contrary. The only limitations the record supports is that the mother has a high school degree and overlooked some misspelled words and a grammatical error on some exhibits Stephen’s attorney found in a stack of graded papers. But the Iowa Tests and the testimony of the experts reveal that both boys made substantial improvement in one year. So the trial court’s conclusions are not supported by the record.

Even if the trial court were correct in finding that Martin’s education of the boys at home was not in their best interests, the court does not find that one deficiency outweighs all of the other circumstances and therefore requires that custody be moved to Stephen. There was substantial evidence presented that Stephen may be a problem drinker, occasionally drinks and drives, that he had to be taken to court once to collect past due child support, that he did not regularly visit the boys until after he filed his motion to change custody, that he did not keep his appointments when he did promise to visit them, that when he had them at his home in Tulsa for visitation he left them alone during the day and cheeked on them by phone. In contrast, Martin gave up a $50,-000 a year job to stay home to give the boys a better education and more behavioral supervision than she believed that they were receiving in the public school system. She has had custody of the boys for eight years now. The trial court makes the formal education of the mother, and the overlooking of a few misspelled words outweigh the substantial negative evidence against custody being changed to the father. A change in custody, given these facts, is simply not supported. The trial court cannot presume that a parent possessing only a high school degree is unqualified to educate her children at home and make that the sole basis for a change in custody.¹¹ The trial court’s personal beliefs should not be forced on a custodial parent who has made a legitimate decision for the benefit of the minor children. Finding that Martin, whose formal education is limited to a high school degree, is incapable of educating her children at home "without evidence supporting such a finding is an abuse of discretion in light of the academic advances made by these boys as revealed by the court’s expert, the Iowa tests, and the testimony of other witnesses. The trial court abused its discretion in finding that because of the mother’s home schooling, a change in custody would be in the best interests of the children. The decision is against the clear weight of the evidence.

III. Child Support

Concerning Martin’s motion to increase child support, the only evidence presented failed to prove that Stephen’s income had increased. Martin’s had actually decreased from $50,000 per year to no income. The evidence presented does not meet the burden of proof needed to modify a support decree. The child support computation filed with the divorce decree on March 31, 1989, reveals that Stephen’s child support would have been $413.60 per month, and his part of the child care expense would have been $203.51 per month, for a total of $617.11 per month. By agreement, the child support was set at $500.00 per month. On February 7, 1990, the parties entered a second agreed order setting the child support at $350.00 per month to be paid to Martin by Stephen. Although the statutes provide child support may be based upon imputed income,¹² the loss of Martin’s income resulting from her choice to educate her children at home makes decreasing child support unjust. We find that imputing an income of $50,000 per year to Martin is inequitable and an abuse of discretion. The court’s decision reducing child support is reversed. The cause is remanded for the trial court to set a fair and equitable amount of child support. On remand the trial court should assess the financial .impact of home schooling and apportion it equitably between parents.

IV. Attorney’s Fees and Costs

Martin amended her petition in error appealing the award of attorney’s fees in favor of Stephen. Title 43 O.S. § 110(C) & (D) provide that the court may require either party to pay reasonable expenses of the other as may be just and proper under the circumstances.¹³ As this Court explained in Thielenhaus v. Thielenhaus,¹⁴ the award of attorney’s fees does not depend on which party prevails, but upon a judicial balancing of the equities. Regardless of the fact that Martin was imputed an income of $50,000 per year based upon past years, she gave up that income to educate her sons at home. The trial court awarded attorney’s fees in the amount of $10,000 to Stephen, and additional sums of $63.50 for his costs and $650.00, which represents one-half of the fees of the court-appointed expert witness. The same reasoning that applied to our rejection of a decrease in child support applies here. We find that equity requires each party to pay their own attorney’s fees and expenses for both trial and appellate expenses and one-half of the expense of the court-appointed expert. We so order.

JUDGMENT OF THE TRIAL COURT IS REVERSED AND REMANDED.

KAUGER, C.J., and SIMMS, HARGRAVE, OPALA and WATT, JJ., concur. SUMMERS, V.C.J., and LAVENDER, J., concur in part, dissent in part.

1 . The order was not conditional at the time it was filed with the district court clerk on October 24, 1995, two weeks after October 10, 1995, nor when the petition in error was filed with the clerk of this Court on November 22, 1995.

2 . Sneed v. State ex rel. Dept. of Transp., 683 P.2d 525, 527-528 (Okla.1983). See also Casker v. Dennis, 208 Okla. 34, 252 P.2d 1027 (Okla.1952).

3 . Polk v. Unknown Trustees, 298 P.2d 432, 436 (Okla.1956).

4 . In pronouncing its decision, the trial court said: "The ties of the children are such that excluding the home education, mother is probably the better place to leave the children. I don't know that I have the authority to order mother not to home-educate these children because of the current law, but I do have the authority to tell her that if they are not placed in public school or private school or be educated by some other educator, other than herself, in addition to whatever she wants to give them herself, then I am going to move the children and it's just that simple. It’s what I told you at the very beginning of this trial and my thoughts haven't changed since.”

5 .Robert L. Wheeler, Inc. v. Scott, 818 P.2d 475, 477 (Okla. 1991). In Stokes v. Stokes, 738 P.2d 1346, 1347 (Okla. 1987), we held that an appellant who cashed one of her alimony checks subsequent to the trial court’s order awarding alimony did not waive her right to appeal that judgment. We reasoned that where the judgment accepted was necessary for the support and maintenance of the receiving spouse and minor children, it would be grossly unfair and against enlightened public policy to force the litigant to choose between food and the right to appeal. Likewise, Martin should not have to choose between the continued custody of her children and appeal.

6 . Section 112 has been amended by 1996 Okla. Sess. Laws, ch. 131, § 10, eff. Jan. 1, 1997. The wording quoted above remains the same in the amended statute.

7 . 442 P.2d 482, 484 (Okla.1968).

8 . Gibbons v. Gibbons, 442 P.2d 482, 485 (Okla.1968).

9 . David v. David, 460 P.2d 116, 117 (Okla.1969).

10 . Fox v. Fox, 904 P.2d 66, 69 (Okla.1995), citing Gorham v. Gorham, 692 P.2d 1375, 1378 (Okla.1984); and Rice v. Rice, 603 P.2d 1125, 1128 (Okla.1979).

11 . We note that the legislature has recently amended 43 O.S. § 112(4) to provide regarding care and custody of children that "there shall be neither a legal preference or a presumption for or against private or public school or homeschooling in awarding the custody of a child, or in appointing a general guardian for the child.” 1996 Okla. Sess. Laws, ch. 131, § 10, eff. Jan. 1, 1997.

12 . 1995 Okla. Sess. Laws, ch. 1, § 13(B)(4), codified at 43 O.S. § 118(B)(4).

13 . 1992 Okla. Sess. Laws, ch. 252, § 1(C) & (D).

14 . 890 P.2d 925, 934-935 (Okla.1995).