*1
2,
646.
it,
Carpenter,
.
The court attributed
er, we hold was not error. this computations,
reviewing we will trial court’s absent disturb the OK CIV APP 53 computed clearly is showing the amount ANDERSEN, Andrea Jo weight evidence. ex against the State Plaintiff/Appellee, Dept. Human rel. Services Behalf of APP Snellings Strohmeyer, v. 1995 OK CIV v. 157, pay P.2d 77. The court’s FELLERS, R. Thomas month child was not an Defendant/Appellant. the evidence in this abuse of discretion under No. 87823. case. The court is authorized to order equitably, doing payment of marital debts if Oklahoma, Appeals of Court of Civil so consistent with fundamental fairness is Division No. 3. requirement make both 10, March under property, of marital 43 O.S. division 121, the net Supp.1992 based on worth estate, gives the court
the marital jointly' acquired debts. v.
to divide Sien
Sien, 1994 OK CIV see no abuse discretion
We $7,500.00
ordering Maher to to Hoda as $15,000.00 approximately in mari part of
tal debts. of equita A action is one
¶ 10 divorce courts will not cognizance. Appellate
ble ab property the division of
disturb Teel, Teel of an abuse of discretion.
sence 994; 766 P.2d Johnson v. John
1988 OK
son, Carpenter 1983 OK 674 P.2d *2 Bartlett, Tulsa, Plain-
Barbara Ann tiff/Appellee. Davis, Tulsa, Defendant/Ap-
Shannon pellant.
BUETTNER,
Judge:
Presiding
(Fellers)
Appellant
Thomas R. Fellers
appeals from the trial
of child
court’s award
(An-
Appellee
Andrea Andersen
dersen).
petition
Andersen filed a
for di-
vorce, alleging
marriage
a common law
exist-
trial,
parties.
day
ed between the
On the
marriage
be-
she conceded
no
existed
tween the
The trial therefore was
paternity
held to determine
and establish
support.
Because we find the trial
against
clear
court’s decision was not
evidence,
weight of the
we affirm.
business,
opened
2 Fellers
his own
Specialists in
lers Auto
June 1992. Fellers
began living together
Feb-
son,
ruary 1993. Their first
a
was born
December
out of
1993.
moved
January
Fellers home at the end of
1994.
together in
reconciled and lived
April
May
peti-
1994. Andersen filed
divorce, alleging
tion for
the existence of
marriage,
July
common
A
law
temporary
order was entered
which Fellers was or-
dered
month child
$527.87
as well as 85% of the medical and child care
of the child.' The
second
child, daughter,
January
was born
temporary
The trial court modified the
30, 1995,
provide
support order on March
In
of both children.
that order
the child
was increased
month, along
with 85% of the medical
expenses.
and child care
February
3 Trial was
28—March
held
1,1996.
trial court ruled that there was
marriage
parties,
but that
between
relation-
6 Andersen introduced as Plaintiffs ex-
were born
the two children
prepared
the father of the two
ship and that Fellers is
hibit
document
temporary support hearing.
found that Fellers’
before the
children. The trial court
document,
inexplicably dropped
his net income
income
dramatical-
listed
taxes,
wages,
rental
after
as
ly
after the
order was
from
income
*3
paid
imputed to Fellers the
entered and therefore
Fellers’ business
$5460.
$24,000
drop.
in
in
building
that
The trial
which the
income he made before
rent
$5,284/month
operates.
income to Fel-
submitted an
imputed
court
business
Andersen
lers.
trial
found that
the total
exhibit
indicated that in
Fellers’
The
court
which
which,
$6,389,
$2184.68,
parties
average monthly wages
ac-
in
income of the
was
were
cording
support guidelines,
average monthly wages
child
re-
his
to the
1994
were
$4841.67,
per
.support.
average
in
in
Fellers’
sulted
month base child
and then
$962
monthly wages dropped
for
child
responsible
Fellers was held
83%
The evi-
$1450.
responsible
support
was
for
also
a
while Andersen
dence
established that Fellers had
$5,000
account
a balance between
18%.
bank
$9,000
February
he
in
and
which
closed
Fel-
4 The trial court further found that
support
alleged,
lers
back child
for the first
owed
and the trial court
Andersen
during
for months
1994 when the
agreed,
began paying
child
that Fellers
himself
parties
living together, plus
just
were
significantly less
after the order for tem-
support
child
for
second
months back
in
porary support was entered
$4,769.80.
amounting to
trial
The
1994. Fellers’ 1995 W-2 form indicates that
$18,012.13,
court
further
found that Fellers owed
wages
Fellers’
Fellers
were
while
$1,298.21
$38,576.30
support
for child
and child care
paid
employees
one of
in 1995.
his
by wage
covered
a
amounts that were not
that while she worked for
testified
Fellers,
assignment.
qualified
The court entered a
employees
paid
as
none of the
support
medical child
as well as
much as
The
himself.
balance
for
wage assignment
the amount due.
for Fellers’
indicate the busi-
sheets
business
contempt
$23,953.13
1992;
to be
trial court found Fellers
in
ness had net incomes of
in
1993; $6,606.24
support
$64,117.17
for
under the
failure
in
in
$8,258.41
order.
court
Ander-
awarded
1995. Fellers’
Individual
in-
“property
adjusted gross
as
division” for her
sen
Tax Return
his
income
$1500
shows
$63,329,
in the
year
average
terest
a Cadillac that had been titled
would
which
per
names of both
but
been sold
month. Fellers’ 1994 tax return
$5277
$53,857,
adjusted gross
Fellers.
shows an
income
average
which would
month.
$4488
¶5'
assign
Fellers’
first
second
adjusted gross
lers’ 1995tax return shows
ments of error are that the trial court erred
$17,455,
average
income of
which would
imputing monthly
income of $5283.26
per month.
$1454
income,
($4,281.82 salary,
rental
supports the
8 We find the evidence
benefits) to Fellers and that
insurance
$53
inten-
trial court’s determination
failed to follow the child
tionally
simply
his income
to de-
decreased
determining gross
Fel
guidelines in
income.
support obligation. All
his child
crease
his
argues
opened
he first
lers
when
percentage
as
computed
is
business,
90 hours week and
he worked
parents.
income
gross
combined
began
that his income decreased when he
118(3)
118(1).
provides:
Section
O.S.1991
working
The trial court
40 hours
week.
rent,
self-employment,
from
intentionally reduced
For income
found that Fellers had
business, or
royalties, proprietorship of a
paying
in order to avoid
his income
partnership
closely
joint ownership of a
or
support ordered in the tem
amount of child
gross
is
corporation,
held
income
defined
porary
insists that the trial
order. Fellers
ordinary
gross receipts
and nec-
hours a
as
minus
court has forced him to work 90
required
self-employ-
essary expenses
for
week
meet
operation. Specifically
ment or
obligation.
business
when the
necessary
it was difficult
determine
ordinary and
ex-
excluded from
inequita-
be
together, but that it
this section are
lived
penses
purposes
for
would
when the child
by.
to be
award child
the court
ble to
amounts determined
gross in-
living
Fellers’ home.
inappropriate
sup-
calculating child
purposes
come for
that it determined
11 The court stated
review, in-
carefully
port. The court shall
for months of child
Fellers owed
self-employment
expenses from
come and
daughter
months for the
for the son and two
to determine
operation
or
of business
support. The total
“pre-order” child
gross
available
appropriate level of
income
$4,769 .80. Fellers ar-
of this was
amount
satisfy
parent
a child
to the
son lived
gues that
and'
in-
of business
obligation. A determination
five months in 1994 and that
with him for
purposes
not control for
come for tax
shall
*4
1,
temporary order was entered
a child
purposes of
1994,
re-
only
been
so that he should
have
obligation.
pay
back child
for the son
quired to
announcing its
explained, in
deci-
The court
Although Andersen did
for four months.
14,1996,
any
that it could not see
sion March
“four or
testify that she lived with Fellers
drop in Fellers’ in-
for the dramatic
reason
(3/1/96
35),
months” in 1994
tr.
she also
five
come,
attempt
to
other than an. intentional
at the
of
testified that she left Fellers
end
paying
support.
child
The court noted
avoid
sop
1994,
one
January
when the
was about
persuasive
argu-
Fellers’
that it
not find
did
old,
May
April
returned in
of
month
90 hours
ment that he would have to work
Assuming
good.
for
then left Fellers
money
of
he
per
to
the amount
week
earn
then,
supported
that Fellers
Andersen and
Taking
.agree.
in
the
had earned
1994. We
1994 and
their son for three months out of
month-
figures
regarding
cited above
Fellers’
in
for
that a child
order was
effect
hourly
Fellers’
ly income in 1994 and
1994, the trial
November and December
week,
per
wage,
working 90 hours
even
support for
court should have awarded back
hourly wage
in 1994 and his
for
around $13
during
months
1994. Fel-
the son for seven
find there-
dropped
50 hours
to
We
$7.25.
lers, however,
object to the trial
failed to
that,
pay
if Fellers had continued to
fore
that Andersen had not
court’s determination
hours,
wage,
the same
for fewer
himself
eight
Fellers for
between
with
months
lived
income still would have been about $2600
entry of the
the
of the son and the
birth
month, rather
than
Added to that
$1450.
addition,
temporary support order.
In
in rent Fel-
month
number
$2000
provide authority that the
lers has failed to
paid
had
him in 1994.
lers’ business
decision is reversible error. We
trial court’s
agree
the trial court that it was difficult
may only reverse the trial
with
9 We
together.
lived
support if it is
to determine when the
computation
court’s
of
may
have included a month
weight
the evidence. The trial
clearly against the
of
January, April,
partial
the
months of
Dept.
Human Services v.
State ex rel.
Fellers,
May
returned to
when Andersen left
Strohmeyer, 1995 OK CIV
again.
then left
We therefore do
the trial court’s determination is
77. We find
in
not find the trial court’s decision to award
supported by the evidence and is
accord
eight
guidelines.
for the son
the child
back
months is error.
alleges that
the
10 Fellers next
alleges
12 Fellers next
the
setting
in
ret
trial court erred
ordering
pay
him to
paterni
trial court erred
roactively.
In actions to determine
up
expenses of the children. Ander
support may
to medical
ty, be awarded
sen’s exhibit 8 lists
as 85% medical
years preceding the action. 10 O.S.1991
five
83(C)(1).
decision,
by the children. Fellers
announcing
expenses
the
incurred
its
that he and
both testified
determining “pre-
asserts
Andersen
court noted that
trial
expenses of
paid
the
the court found that
that he
cover
$5000
order monies owed”
birth of their son. Fellers reasons
parties’
the
son lived with
the
Andersen and
against the
noted
this amount should be offset
med-
during part of 1994. The court
by
pleadings
of- When issues not raised
the
or
expenses
ical
listed in exhibit 8. Fellers
order,
by
pretrial
...
conference
are
position.
for this
When
fers
by
parties, they
born,
... consent of the
tried
Fellers and
son
respects
they
as if
shall be treated
all
do
living together.
not see
were
We
pleadings
been raised in the
....
Such
expenses
while the
relevance
necessary
may
cause
amendment as
be
living together to the calculation of
pleadings
pretrial
or the
conference
expenses'
owes for
portion of medical
conform the evidence and
arising
parties separated,
after the
may
upon
raise these issues
be made
mo-
pay
order that he
based
..;
failure
to amend
tion.
but
so
does
expenses.
medical
85% the children’s
affect
result
trial
these issues.
objected
argument is that
13 Fellers’ final
If evidence is
to at the trial on
dividing
parties’ prop
ground
it is
issues
the court
not within the
erred
pleadings
pretrial con-
erty
made
or the
this is
a divorce ease.
since
may
ference
the court
allow the
trial court ordered Fellers to
pleadings
pretrial
or the
conference order
for her interest in a Cadillac that
$1500
freely
to be amended and shall do so
when
living together.
parties bought while
Ander
presentation
on the merits
the ac-
that the
titled
sen testified
Cadillac was
*5
thereby
object-
tion will be served
and the
names,
parties’
both the
but that
took
Fellers
ing party
satisfy
the
fails to
the court that
it
it from
in oi’der to fix it and then sold
her
prejudice
admission of such evidence would
knowledge. At the time Ander
without her
maintaining
his action or defense
Cadillac,
regarding
sen testified
the
upon the merits.
objected based on the fact that the case was
plead-
to
to
longer
Whether
allow amendments
the
a divorce action and that division of
ings is left to the trial court’s discretion.
longer
property was therefore no
an issue.
Inc.,
Prough
Edinger,
v.
OK
that
have to
Fellers asserted
Andersen would
proper-
find that the trial court
P.2d We
bring
part
of
of
claim for conversion
her
ly
regarding
the
heard the evidence
the Cadillac.
interests
the
and “amended” the
Cadillac
responded
14 The trial court
that
it
pleadings
conform to this evidence. Divi-
agreed
“to the extent of
whether
an
property
sion of
issue raised
Nevertheless,
things
jointly
are
assets.”
changed
pleadings. The nature of the'claim
it would
out what
court said
sort
day
of trial
when Anderson conceded
separate property of the individuals. Fellers
marriage
no common law
How-
existed.
present
rebutting
Ander-
did
evidence
ever,
any preju-
Fellers did not demonstrate
testimony
jointly
that °the Cadillac
sen’s
joint
defending
of
dice in his
the claim
own-
its
held. When the trial court announced
joint
ership of
The claim of
the Cadillac.
hearing,
decision in a later
Fellers did not
ownership
regard to
could be made without
$1,500
object
of
to the award
to Andersen
Allowing
marriage
of
status
“equitable
ear.
her
interest” in the
proceeding
tried in
the claim to be
this
justice
and saved the
served
interests
15 Fellers asserts
O.S.1991
expense.
pur-
Thus
parties
time
jurisdiction
§
109.2
the limits
establishes
2015(B)
§
poses of
were met.
§
paternity
in a
case and that
109.2 does
However,
property.
authorize the division of
_16
did not rebut Andersen’s tes
properly raised the
we find that Andersen
timony
names
vehicle
that both
property
petition.
title,
joint
in her
division of
divorce
presumption
which is a
owner
moot,
Ward,
because
Once the divorce issue became
ship.
v.
197 Okla.
Ward
marriage,
(1946);
finding
Plumbing Sup
ho
of the
that there was
v. Norman
Gilles
Inc.,
allow
ply
the court nevertheless had
1975 OK CIV
Co. Okla.
case,
pleadings
type
of the
to conform
174,
that the trial court did not its abuse discre- $1,500 awarding
tion in for her
part of the Cadillac.
AFFIRMED.
ADAMS, J., concurs.
HANSEN, Judge, concurring part,
dissenting part: portion opinion
I dissent to that property. my opinion,
divides the this is
improper longer where the action is no
action for divorce but rather is action to paternity.
determine
*6
No. 90480. (Claim Petitioner, Rebecca L. Reeves ant), filed her Form 3 in the Workers’ Com Court, pensation alleging she sustained an Oklahoma, Appeals Court Civil injury arising accidental out of and in the Division No. 1. employment Respondent, course of her (Employer). March T alleged AT & She she in shoulders,
jured neck, upper her back and trial, right arm on November 1993. At parts body at issue this claim stipulated neck, right as the shoulder upper back.1 trial court entered an order, denying containing the claim and (1) findings that Claimant failed to meet her proof burden of and failed to meet her bur persuasion, citing den of Manage American Burns, Systems, ment Inc. v. 1995 OK (2) 903 P.2d Claimant did not sus proceeding. The trial court consolidated two claims of is not at issue in this review purposes Claimant for of trial. other claim