*1 within the task was the realm of general The in maintenance. installation of is signs
terior at variance with the duties expected reasonably encom are occupied by
passed by position this claima
nt.3 “urgency”
As which this claim- for the faced, not rise
ant it does level claim might compensable. make this began performing
The a mainte- claimant during regular working task
nance-related and, direction, employer’s
hours
stayed merely overtime to com- and worked
plete the same task.
Opinion Appeals of Civil of the Court Compensa- the Workers’
Vacated. Order of Denying
tion this Claim Court is Sustained. SUMMERS,
KAUGER, C.J., V.C.J., and
LAVENDER, HARGRAVE, OPALA and
WATT, JJ., concur. WILSON, JJ., ALMA
HODGES and part. part,
concur in dissent
Lynn STEPHEN, Martin, Appellant, now STEPHEN, Appellee.
Mark
No. 86560.
Supreme Court Oklahoma.
April
following
placed
special-task
3. The
cases illustrate
circum-
lar hours
other
the claim within the
special-task exception
exception.
stances in which the
appellate
rejected
this ar-
See,
inapplicable.
example,
held to be
Schell
gument, concluding
performed
that the tasks he
Inc.,
Bell,
(1981),
Okl.App.,
v. Blue
William Appellant. Davis, Guthrie, W. Frank Michael P. Far- Gordon, E. Legal ris and David Home School Association, Springs, Defense Paeonian Vir- ginia, Curiae, Legal Amici Home School Association, Defense OHahoma Central Consociation, I. Issues Christian Procedural Home Educators Fellowship of Oklahoma. Home Educators reaching evidentiary is Before James, City, Appel- Marcie Oklahoma 1) sue, preliminary we address two issues: lee. appeal- whether *3 order; 2) appellant whether the able and WILSON, ALMA Justice: accepted the of the order. The mod benefits Martin, Lynn appellant, was Stephen, now conditional, appears ification order to be from Mark granted an uncontested divorce However, than the rather a final order. 29, Stephen, on March 1989. Mar- appellee, judgment aspect the re conditional was custody boys, granted two tin was their 1995, 10, limi moved after October the time During August and bom June 1987. boys the tation for Martin to enroll two quit Martin her the 1994-1995 school public school.1 an order embodies When boys In job to the at home. re- educate the na judgment conditional conditional modify sponse, Stephen filed a motion to by judgment ture of the has been removed quali- custody alleging that Martin not was passing time limits set the trial the the teacher, and that a fied serve as court, appealable.2 the is final and order was not in their best home-school education Generally, may equity a court of such render five-day hearing, interests. the court After judgment exigencies as meet all the will probably children concluded that were litigation equitably all conflict settle Martin, off but better with that she was ing rights. granting necessary In qualified to her children at home. educate may proper relief such the court attach to change custody from The court ordered a grant to it reasonable conditions Stephen Martin to unless the children were case, proper.3 seem In this whether appealed, placed public school. Martin boys live would continue to in the familiar granted. and her motion to retain provided and suitable home the mother dispositive the evi- issue whether behavior, conditioned mother’s supports dence the trial court’s determina- and the condition was intended to coerce the schooling tion home had a direct Early mother’s behavior.4 find the adverse children. We effect dispute, the mother heeded the trial court’s Lynn Mar- evidence does not establish warnings and her son in re-enrolled older adverse- tin’s two public Having already placed school. ly affected interests. hold that their best We school, in public older child when the trial when the court found this home school- custody order, pronounced court its chil- was not in the best interest of the comply judge advised the trial that she would dren, change unless ordered enrolling younger public son school. school, public the children returned to compliance Coerced with conditions weight of such the clear accep evidence, order is not tantamount to and was abuse of discretion. Accordingly, reverse order. tance of the we benefit bly place 1. The was not at the time it the better to leave the I don't order conditional was filed district on October authority with the court clerk that I know have the to order mother 10, 1995, after nor two weeks October home-educate these children because of petition when the error was filed with law, authority the current but I do have the clerk this Court on November 1995. placed tell her that are not if private or be school educated some Dept. Transp., 2. Sneed v. P.2d State ex rel. educator, herself, other other than addition to (Okla.1983). 527-528 See also Casker v. herself, give them whatever she wants to then I Dennis, (Okla.1952). 208 Okla. P.2d 1027 going just am the children and it's move Trustees, simple. you very begin- It’s what I told at the 3. Polk v. Unknown ning my thoughts of this trial and haven't changed since.” decision, pronouncing said: "The are such that ties education, excluding proba- the home mother is appeal.5 evidence shows that before Martin decided to waives home, educating Stephen start Changed II. Circumstances any pattern regular did not follow visita- Child’s Best Interests this, Although attempted explain he tion. 112(A)(3) proof Stephen was that until filed his O.S.Supp.1994, Title 43 modify modify custody, a child authorizes a trial court motion to visitation circumstances ren order “whenever sporadic, older son was and visitation with This lan- proper_”6 der such younger son was almost nonexistent. unchanged guage has remained since Gib- Stephen admitted on cross-examination parents Gibbons held that bons'v. Gibbons.7 mother,” great Martin was “a and that he (1) a requesting modification must establish filed his motion because he “didn’t feel she and material permanent, substantial giving quality them a education in teach- *4 (2) circumstances; in circum- ing at them herself home.” adversely must affect the best inter- stances appointed expert trial court own The (3) child; and, temporal, moral of the ests psychoeducational-psychological for evalua- of the child would be and mental welfare boy tion. tests revealed that the older Her changed.8 In a off if hear- better “bright superior” intelligence, was to ing upon modify, a motion to the burden is boy “high younger average bright.” upon applicant to show a substantial beginning of At the the 1994H995 school entry conditions since year, boys grade were behind a for both level directly or decree which bears last order ages. boy The older would have start- welfare and best interest of the boy grade younger and the appeal, modify- ed sixth child.9 On a trial court order grade if ing child will be affirmed the evi- would have started the first supports finding public system. year the child is dence After one directly adversely schooling, affected the sub- home the Iowa Tests of Basic 1995, of circumstances.10 Before stantial given in revealed that the Skills June court, Stephens posi- Mark took the boy composite grade had earned a older Lynn qualified tion that Martin was not 8.5, meaning per- equivalent of that his test had no home school the because she approximately formance was the same as school, beyond high formal education by typical eighth that made student therefore, schooling adversely af- the home fifth month. As a grade at the end of the exhibits, boys. testimony fected the The grade year comparison, at the end of his fifth however, support finding Lynn do not school, public the Iowa Test of Basic Skills schooling directly and ad- Martin’s home stated that his overall achievement was about versely affected the best interests of her boy’s average grade. younger for his 2.4, grade composite equivalent score is, grade, fourth month. The days hearings spread second The five 11, 1995, 6, expert indicated that the July report 1995. The of the court’s from October Wheeler, Scott, 475, Okla. 818 6. Section 112 has been amended 1996 5.Robert L. Inc. v. P.2d Laws, 131, 10, 1, Stokes, (Okla.1991). Jan. 1997. The Sess. ch. eff. In Stokes v. 738 P.2d 477 wording quoted (Okla.1987), above remains the same in appel- 1347 we held that an amended statute. alimony cashed one of her checks sub- lant who awarding sequent to the trial court’s order ali- (Okla.1968). 442 P.2d 484 7. right appeal mony did not waive her judg- judgment. We reasoned that where the Gibbons, (Okla. 485 8. Gibbons v. P.2d necessary accepted ment for the 1968). receiving spouse and maintenance of children, grossly unfair and minor it would be David, 9. David v. against enlightened public policy to force the Fox, (Okla.1995), litigant citing and the to choose between food Fox v. 904 P.2d Likewise, Gorham, (Okla. appeal. Martin should not have 692 P.2d Gorham v. Rice, 1984); between the continued and Rice v. choose (Okla. 1979). appeal. children and achieving City nam He had not met boy capable of at the Public Schools. older expert report- boys, parties nor until the The court’s either grade tenth level. achieving day hearing. older younger boy is between He evaluated the ed that the boy’s grade in all basic academic Iowa Tests. Kastner testified second and third areas, findings boy growth a dramatic are consistent with the older had shown expert reading ability ready and that observed that he was Iowa Test scores. grade. younger boy had made academic the seventh At the time of the hear- above, ing, boy progress though even his achievement is not as noted the older was back ability. expectancy age school for the 1995-1996 school year, grade. expert concluded that both could the seventh Kastner had boy’s decision the court made. checked with the counselor and found handle whatever science, that he had an A in a B in social Moore, Martin, Raymond Dr. witness studies, English, a B in and was enrolled was in teacher edu- and whose doctorate maintain- Honors Mathematics where he was developmental psychology, cation and boy, younger a B. For the did Kastner expert as an in home edu- offered witness being compare not have the benefit of able to cation, developmental psychology and teach- Iowa Tests taken before and after one accepted er education. The court him as an schooling, of home like Kastner did with the objection expert Stephen’s from without boy. older But Kastner testified that *5 counsel. Dr. Moore described Martin as a younger boy’s average in scores were all attentive, very pensive devoted and mother. above-average range placing and that him doing He that concluded she was excellent grade City at Putnam the second would job boys. Although of Dr. problem. not be a preferred program Moore his home school being Lynn the one used Martin because his Martin testified that the course ma- work, service,” program “study, boys involved and terial she orders to teach her includes editions, manuals, boys doing he observed that both were above teacher’s children’s tests library every quizzes. the national norm based on the 1995 Iowa and She visits the two get reading Test scores. Those tests were taken after weeks to additional material for schooling. boys. biographies of Dr. sports the 1994-1995 home both She orders of favorites, only Moore observed that one two areas heroes who are her older son’s and they biography were below the national norm. He tes- even a of Powell that he Colin levels, enjoyed. boys tified that on of art several the skill both The took classes on Mon- boys percent days engaged physical had scored 100 correct. Al- and education football, though Tuesdays there were areas which she could classes on that included soccer, improve, Metropolitan Baptist. Dr. Moore testified that at the test and baseball great results indicated that credit must be asked she do if When what would her older given question to Martin as a home schoolteacher. son asked her a she could not an- swer, proper coaching replied figure He that observed she she that she would it out him, out, very, very figure could do well. asked if the with but if When could course, disqualified mother would be as a home and she was not able to teach a put schoolteacher because she him in a overlooked some would school where he could tests, misspelled spelling words on Dr. learn. replied Moore that the main concern of the While the trial court finds its order that braiding ability mother was character and capable educating Martin is not of her chil- life, so, first, putting things deal with first properly dren because her limited formal boys really very were well educated. education, and cannot educate the children to manners, industrious, They had were and level, tests, a normal the standardized tests helped around the house. He concluded that expert, testimony of the court’s outstanding job she did an that would not be contrary. only witnesses are all done in classroom. supports limitations the record is that high degree has a
Another Martin’s witnesses was Glenn mother over- Kastner, Special misspelled gram- Director of Services for Put- looked some words and Stephen’s supporting finding at- matical on some exhibits such a is an error abuse of graded torney papers. in a stack found in light discretion of the academic advances testimony Tests But the Iowa boys made these as revealed boys experts that made reveal both substan- tests, expert, the Iowa testi- improvement year. tial one So mony of other witnesses. The trial court supported by court’s conclusions are not finding abused discretion that because record. schooling, the mother’s home if the would in the Even trial court correct best interests of the finding that Martin’s education decision clear interests, not in home was their best weight the evidence. deficiency out court does not find that weighs all the other circumstances Support III. Child requires therefore be moved Stephen. There was evidence substantial Concerning Martin’s motion to in may presented Stephen problem be a support, pre child crease evidence drinker, drives, occasionally drinks prove Stephen’s sented failed to income he taken once to had to be to court collect actually had increased. Martin’s had de past support, regu he due child did not $50,000per year from creased to no income. larly visit the until after he filed presented The evidence does not meet the change custody, motion to that he did not proof modify support burden needed to keep appointments promise he did when support computation decree. child filed them, he had at his visit when them 31, 1989, with the divorce decree on March he left them Tulsa visitation that Stephen’s reveals child would during day alone and cheeked them month, part per have been and his $413.60 $50,- contrast, phone. gave up *6 expense the child care would have been year job stay give 000 a to to month, per a su per better education and more behavioral for a total of $203.51 $617.11 pervision than she believed that By agreement, support month. the child system. receiving public in the She school per February month. $500.00 set at On eight years for has had parties agreed a entered second court edu now. The trial makes formal setting support per order the child at $350.00 mother, of a overlooking cation of the and the paid by Stephen. month to be to Martin outweigh misspelled few words the substan Although provide support child statutes negative against custody being tial evidence income,12 may imputed upon be based changed custody, to the father. A resulting from loss of Martin’s income facts, given simply supported. these is to choice educate her children at home makes presume parent trial that a court cannot decreasing unjust. support child We find un possessing high degree a school is $50,000 imputing per year an income of qualified to educate her children at home inequitable to Martin is and an abuse of for a make that sole basis reducing decision discretion. personal custody.11 The trial court’s beliefs child is reversed. The cause is re parent a custodial should not be forced on for court fair manded to set a legitimate who a decision has made equitable support. amount of child On re Finding that benefit of the minor children. trial mand the court should assess finan Martin, to whose formal education is limited apportion .impact schooling cial of home high degree, incapable a of educat equitably parents. her children at home "without evidence between Laws, recently legislature § Okla. ch. eff. 11. We note that 1996 Sess. Jan. 112(4) provide regarding § amended O.S. to 43 care and that "there be shall legal preference presumption neither or Laws, 1, 13(B)(4), § 12. 1995 Okla. Sess. ch. codi- against private or school or home- 118(B)(4). § 43 O.S. fied at child, awarding appointing general guardian for the child.” 98 adequacy inappropriate Attorney’s Fees and Costs of her
IV.
trial
for the
court’s consideration of
petition in
amended her
er
attorney’s
appealing the award of
fees
ror
110(C)
Stephen. Title 43 O.S.
&
favor of
It
is not the
of the courts to
business
(D)
may require
either
provide that the
everyday
become involved
decisions of
party
pay
expenses of the oth
reasonable
rearing
properly
preroga
child
which are
may
just
proper
under the
er as
or,
parents
tive of the
case of
divorced
explained in
circumstances.13 As this Court
parents,
parent.
right
the custodial
Thielenhaus,14 the award of
Thielenhaus v.
parent
the custodial
to determine and control
attorney’s
depend
on which
fees does
the education of the child is well-settled.
judicial
prevails,
upon
balancing
party
but
specific provisions
the absence of
in the di
Regardless
equities.
of the
of the fact
agreement
or an
vorce decree
between the
$50,000
imputed
per
an income of
Martin was
parents,
making power
the sole decision
over
past years,
gave up that
based
significant
affecting
decisions
the child’s wel
her sons at home. The
income
educate
fare,
education,
including
cus
resides
attorney’s
fees in the
court awarded
Annot.,
parent.
todial
See
Noncustodial
$10,000 Stephen,
amount
and additional
Rights
Respects
Parent’s
As
Education of
$650.00,
sums of
for his costs and
$63.50
Child,
1093;
Bennett,
36 A.L.R.3d
Bennett v.
represents
of the
one-half
fees
(Fla.1954);
1Q1 Particularly, well-being. had academic he was At mother admitted that she trial the lack of graded the children’s concerned about the mothers’s knowl- occasions numerous mathematics, incorrectly. give edge boy’s did and the papers She older grade Only high aptitude cards. in antic- periodic children that area. complete
ipation litigation did she parent seeking If the modification of cus- while grade reports the children received tody can there has been show that a sub- frequently being She failed home schooled. moral, affecting the stantial which is misspelled papers. words on to correct their children, temporal or of the mental welfare beyond not go that she did She testified Fox, custody may changed. Fox v. school, algebra that geometry she (Okla.1995). Clearly, there was grade point average had a of about 2.85. She trial court’s ruling. evidence biology, high highest had a D in record shows that children were took. She that science course she testified bright, being but were slowed teach- they pro- did the children when she not tell fact, In results er. there are test gressed grade. to the next regression progression. show instead schooling expert A home testified on behalf expert Even the felt she mother’s could use he home of the mother. While advocated improvement. court concluded that the thought that the schooling and mother well-being children educational doing job, agreed he that it was jeopardy. have harmful to the children’s education to making ruling, judge attempted his papers graded incorrectly. also and tests He judgment to tailor the to fit the best interests agreed used the home that the mother worst prohibit He did not schooling program available. He concluded schooled; rather, being children from home improvement mother needed as it in their he determined that was best inter- thought it possible teacher. he While capable to be ests schooled someone might improve, he advocated the use level, appropriate them at (his own), program as well as different home, school, whether be at mother tutors in where the was weak. areas private ruling I not find his school. do con- being In his opinion the children edu- trary weight to the clear of the evidence. cated, do much better. but could For I would affirm the trial these reasons dispute as to whether the There is some I as to have no actually progressed children the tute- under disagreement opinion with the Court’s other- lage court-appointed mother. A ex- wise. children, pert tested determined I.Q., high each the older was had
capable learning grades beyond several opinion the age.
actual In her children were learning at a rate commensurate with pointed
their abilities. She also out that actually being
children had declined after reading, such as lan- schooled areas ROBINSON, Petitioner, Walanzo Deon guage Test scores and science. showed extremely oldest child was advanced Oklahoma, Respondent. The STATE of mathematics, could learn at tenth grade level. No. PC-96-1224. The father testified that he filed the modi- Appeals of Court of Oklahoma. Criminal
fication because he does not feel it is motion interest of children to be best 14, 1997. April ques- He educated the mother. did not par- tion fitness as custodial the mother’s
ent. are ex- He realized
tremely bright and is concerned for their