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Volume 80 u No. 31 u November 21, 2009

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2354 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 Theme: Editor: Leslie Taylor contents November 21, 2009 • Vol. 80 • No. 31 pg. 2422 Art Contest Winners Departments 2356 From the President 2428 From the Director 2430 Law Practice Tips 2433 Ethics/Professional Responsibility 2434 OBA Board of Governors Actions Features 2437 Oklahoma Bar Foundation 2359 The New Support Guidelines News By Amy E. Wilson 2440 Access to 2371 Is Here to Stay in Oklahoma? 2442 Young Lawyers Division By Michelle C. Harrington 2443 Calendar 2377 For Better or Worse: The Union 2445 For Your Information of Family Law and ERISA By Kenni B. Merritt 2449 and Bar Briefs 2383 If Your Client Records, Do You 2452 In Memoriam Get to Press Play? By John E. Barbush 2429 Editorial Calendar 2389 The Division of 2456 The Back Page Retirement Benefits in Oklahoma Proceedings By A. Kyle Swisher 2395 ‘The Times They Are a-Changin’ Actions When and How to Modify Child House of Delegates Support By Donelle H. Ratheal pg. 2423 2401 Grandparental Visitation in Plus Oklahoma: An Overview 2418 Annual Meeting Highlights By Allison A. Hart 2425 Get Involved – Volunteer for 2409 Marital Homestead a Committee Projection: Impact of Hill v. Discover Card? 2426 Photo Highlights: Board Travels By Kraettli Q. Epperson to Guymon Vol. 80 — No. 31 — 11/21/2009 The OklahomaADOPTED Bar Journal 2355 FROM THE PRESIDENT

Annual Meeting a Complete Success By Jon K. Parsley

I am happy to report that the 105th Annual Meeting of the Oklahoma Bar Association was extremely successful! Those of you who were in atten- dance already know we had a great meeting. Those of you who could not make it missed out on a great event. Everyone should start planning early to attend the Annual Meeting next year in Tulsa. The Annual Meeting was a complete success because of the OBA executive director, the other OBA directors and our wonderful staff. It is really easy to think that The Plenary Session dedi- these types of meetings just happen or run themselves. cated to Abraham Lincoln To some extent, I always thought that in the past. This celebrating the 200th anniver- is simply not true. Now that I have seen behind the sary of his birth was another scenes, I know that every highlight of the meeting. The part of the meeting is the first (and maybe annual) OBA result of long hours of effort Comedy Club was a hit. Henry and dedication by our staff. Those of you Cho performed a hilarious set, I am proud of the work who could not and all in attendance got a they do for us all year, but I great dose of laughter – the am especially proud of the make it missed best medicine. The Lawyers work they did on this year’s out on a great Helping Lawyers Assistance Annual Meeting. Program was wonderful. The event. other CLE sessions and section The Annual Luncheon meetings were great. The YLD was the highlight of the Casino Night was another suc- meeting. We were cessful event. The President’s honored by the presence of the governor, lieu- Prayer Breakfast featuring tenant governor, attorney general and many Bill Paul was also a meeting distinguished members of the state and federal highlight. . We recognized the achievements of our OBA award winners. I presented presi- Overall, I can’t say enough dent’s awards to Gary C. Clark, Stephen Beam, about the quality of this year’s Melissa DeLacerda, Bill Grimm, David K. Petty, meeting. If you missed the Linda Thomas and John Morris Williams for the meeting, I can’t encourage you immense amount of help they have given me enough to try to attend next and our association this year. Then our keynote year. The date will be Nov. 17- speaker took the podium. Gene Kranz, who 19, 2010, at downtown Tulsa’s was the NASA Apollo 13 flight director, gave Crowne Plaza Hotel. It is a President Parsley one of the best luncheon speeches I have ever great time for the lawyers of practices in Guymon. heard. Everyone in the crowd was quiet and Oklahoma to come together [email protected] listened to his every word. He used his experi- and meet, learn and fellowship (580) 338-8764 ences to teach a great lesson about teamwork, with our colleagues who are trust, loyalty and competence. The luncheon also in the business of pursuing was a complete success. liberty and justice for all.

2356 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009

OFFICERS & BOARD OF GOVERNORS

Jon K. Parsley, President, Guymon Allen M. Smallwood, President-Elect, Tulsa Linda S. Thomas, Vice President, Bartlesville events Calendar

J. William Conger, Immediate Past President, Oklahoma City NOVEMBER 2009 Jack L. Brown, Tulsa Martha Rupp Carter, Tulsa 26-27 OBA Closed — Thanksgiving Holiday Charles W. Chesnut, Miami Cathy Christensen, Oklahoma City Donna Dirickson, Weatherford DECEMBER 2009 Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon Jerry L. McCombs, Idabel 3 OBA Legal Intern Committee Meeting; 3 p.m.; Sneed Lounge; Lou Ann Moudy, Henryetta OU College of Law, Norman; Contact: H. Terrell Monks (405) 733-8686 Deborah Reheard, Eufaula Peggy Stockwell, Norman OBA Law-related Education Committee Meeting; 4 p.m.; Oklahoma James T. Stuart, Shawnee Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Richard Rose, Oklahoma City, Chairperson, Jack G. Clark Jr. (405) 232-4271 OBA/Young Lawyers Division 8 Death Oral Argument; Alfred Brian Mitchel; D-2008-57; 10 a.m.; BAR Center Staff of Criminal Appeals Courtroom John Morris Williams, Executive Director; Gina L. Hendryx, General ; Workers’ Compensation Public Hearing; 12:30 p.m.; Oklahoma Bar Donita Bourns Douglas, Director of Educational Center, Oklahoma City; Contact: Tish Sommer (405) 522-8710 Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of 10 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Administration; Travis Pickens, Ethics Counsel; Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack Jim Calloway, Director of Management Assistance Program; Rick Loomis, Director of Information Brown (918) 581-8211 Systems; Beverly S. Petry, Administrator MCLE 11 OBA Board of Governors Meeting; 9:30 a.m.; Oklahoma Bar Center, Commission; Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Oklahoma City; Contact: John Morris Williams (405) 416-7000 Debbie Maddox, Ted Rossier, Assistant General Oklahoma Council of Administrative Hearing Officials; 12 p.m.; ; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; and Krystal Willis, Investigators Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 Nina Anderson, Manni Arzola, Debbie Brink, OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center, Melissa Brown, Brenda Card, Sharon Dotson, Oklahoma City and OSU Tulsa; Contact: Amy Wilson (918) 439-2424 Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, 12 OBA Young Lawyers Division Committee Meeting; 10 a.m.; Misty Hill, Debra Jenkins, Jeff Kelton, Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, Contact: Rick Rose (405) 236-0478 Wanda Reece-Murray, Tracy Sanders, 18 OBA Appellate Practice Section Meeting; 11:45 a.m.; Oklahoma Bar Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough Center, Oklahoma City; Contact: Brian Goree (918) 382-7523 EDITORIAL BOARD 25 OBA Closed – Christmas Holiday Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: Scott JANUARY 2010 Buhlinger, Bartlesville; Emily Duensing, Tulsa; John Munkacsy, Lawton; Pandee Ramirez, Ok- 1 OBA Closed – New Year’s Day mulgee; Julia Rieman, Enid; James Stuart, Shaw- nee; Leslie D. Taylor, Oklahoma City; Lori For more events go to www.okbar.org/news/calendar.htm M. Walkley, Norman; January Windrix, Poteau The Oklahoma Bar Association’s official Web site: www.okbar.org NOTICE of change of address (which must be in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. Copyright© 20082009 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association (405) 416-7000 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Toll Free (800) 522-8065 FAX (405) 416-7001 A MONTH IN JANUARY, February, March, April, May, August, Septem- Continuing (405) 416-7006 ber, October, November and December and bimonthly in June and Ethics Counsel (405) 416-7083 July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, General Counsel (405) 416-7007 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Law-related Education (405) 416-7005 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Lawyers Helping Lawyers (800) 364-7886 tions are $55 per year except for law students registered with the Mgmt. Assistance Program (405) 416-7008 Oklahoma Bar Association, who may subscribe for $25. 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Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2357 2358 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 FAMILY LAW The New Guidelines What You Need to Know about Changes to the Guidelines By Amy E. Wilson ew issues are as heavily litigated in family law as child support, and lawyers across Oklahoma should be Faware that new child support guidelines enacted in June of 2008 became effective July 1, 2009. This article serves as a guide to the changes for practitioners, as well as providing background on why such changes were necessary.1

43 O.S. §118 Many of the definitions are intuitive, while others were found in the previous . One of the main goals of the new was to reorganize the monstrous amount of law 1) Adjusted gross income. This term means stuffed into 43 O.S. §118. This was achieved, as the net income of a parent comprised of it is now much easier to navigate through the the gross income of the parent (discussed guidelines and pinpoint particular citations in 118B), plus any Social Security benefit during an actual case. paid on behalf of that parent (discussed further in 118B(G)), minus: support ali- This section, which previously2 contained the mony actually paid in another case, deduc- entirety of the guidelines, now contains only tions for other children (discussed in 118C), two provisions. Subsection A contains the and deduction for debt service on the pre- “rebuttable presumption” language from the existing, jointly acquired debt of the par- previous statute, and states that a child support ents. calculation based on the guidelines is rebuttably presumed to be the correct amount. New lan- 2) Base child support obligation. The amount guage in subsection B lists the assumptions of from the guidelines schedule found in 43 what is covered by a basic child support obliga- O.S. §119 for the parents’ income and the tion. The statute “assumes that all incur number of children in the case. This certain child-rearing expenses.” The base child amount is rebuttably presumed to be support obligation includes housing, food, appropriate and does not include other transportation, basic educational expenses, expenses, such as medical and clothing and entertainment. costs. Most of the other language from 43 O.S. §118 3) Current monthly child support obliga- has been moved into the sections below. tion. This is the base child support obliga- 43 O.S. §118A – DEFINITIONS tion plus the proportional share of medical insurance and child care costs. Note that This section gives definitions that control com- this includes “annualized” (or averaged) mon terms throughout the guidelines statutes. child care costs. Medical insurance and

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2359 child care are covered in more detail in it is clear that a “parent” for the purposes subsequent sections. of the guidelines is a legal parent, not a third-party custodial person. Only the 4) Custodial person. This is the parent or gross income of parents is used in the third party who has physical custody of the guidelines. (43 O.S. §118D(A)). Therefore, child for more than 182 days per year.3 the income of a third party custodial per- 5) Noncustodial parent. This is the parent son is not included for child support who has physical custody of the child for purposes unless that person has become 182 or fewer days per year. a parent (presumably by ) under the UPA. 6) Obligor. The person who is ordered to pay child support. 11)  time adjustment. This term replaces “” and refers to 7) Obligee. The person to whom child sup- the credit to the child support obligation port is owed. This may include DHS or based on an increase in parenting time another person designated by the court. with the noncustodial parent. It should be noted that due to the parenting 12) Payor. This is a person or entity paying time adjustment formula, it may be possible for money to an obligor. If the obligor is self- a noncustodial parent to be an obligee, and for employed, the obligor is also the payor. a custodial parent to be an obligor. These defi- nitions do not address legal custody of a child, The intent of the definitions is to ensure that but attempt to ensure that the child receives terms are used consistently throughout the equivalent or proportional support regardless guidelines. There is likely some room for clari- of with which parent he or she is residing. fication and perhaps further definitions. Fur- ther clarification or examination is especially 8) Other contributions. These are expenses appropriate with regard to the term “physical not included in the current monthly .” The intent is to take the child support support obligation, such as recurring calculation out of the realm of legal custody. monthly medical and visitation transpor- The term “custody” is loaded with meaning in tation costs. These are not commonly Oklahoma law, meaning both physical posses- included in a child support order, but the sion and control of the child and the bundle of statutes make allowance for them. legal rights associated with parenthood. 9) Overnight. This is the trigger for the Unless Oklahoma is willing to take on the shared parenting (now “parenting time Texas model of “managing conservator,” etc., adjustment”) calculation. While shared there must be some other distinction between parenting in Oklahoma has always been legal custody and physical custody. Input from triggered by the number of overnights private practitioners indicated they were no spent with a parent, the definition has longer comfortable discussing parents in terms been tightened up to require that the of “custodial” and “non-custodial.” In the way “overnight” be for a period of at least 12 of compromises, this portion of the final prod- hours and that the parent exercising the uct was not entirely satisfactory to any of the overnight must make a “reasonable expen- participants and could likely be improved with diture of resources for the care of the some clarification. child.” Shared parenting is discussed fur- ther in 118E below. 43 O.S. §118B - DEFINING ‘INCOME’ 10) Parent. This definition, which cross-refer- While the definition section above attempts ences the Uniform Parentage Act,4 may to define terms that should be used consis- seem unnecessary and self-explanatory. tently throughout the statutes, the definition of In some cases, however, it might avoid income is such a complex and integral part of litigation. For example, in cases where calculating child support that it was given its one parent is deceased and the child is in own section. the custody of a third party, the noncus- Subsection A discusses income included for todial parent may attempt to argue that the purpose of child support. Gross income for the custodial person’s income should be purposes of child support is comprised of used in place of the deceased parent’s earned and passive income. “Earned income” income. Under this definition, however, is, intuitively, any income earned by a parent,

2360 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 unless specifically excluded. The statute gives While the court has always had the power to an inclusive list of types of earned income, and impute income, this section provides clarifica- includes salaries, wages, tips, commissions, tion by giving the court guidance as to factors bonuses, severance pay and various types of that may make imputation appropriate in a military pay. particular case. In considering whether or not to impute income, the court may determine if a Passive income is any other type of income parent is willfully or voluntarily underem- and includes dividends, pensions, rent, interest ployed or unemployed. The court may consider and trust income, support from anoth- such facts as: er case, annuities, Social Security and workers’ compensation benefits, unemployment and • Whether a parent’s un- or underemploy- disability benefits, gifts, prizes, gambling and ment is willful or voluntary, including lottery winnings, and royalties. Again, this list whether the parent is unemployed due to is inclusive, and there may be other types of training or education that will ultimately passive income that can be included for the benefit the child. guidelines. • Whether there is no reliable of Subsection B discusses income excluded income. from the guidelines. Excluded income is an • The earning ability of the parent (past exclusive list, meaning that if a type of income employment, education, training, ability to is not included in the list, it is not excluded work). from use in the guidelines. Excluded income is money received for the benefit of a child (child • The lifestyle of the parent, including assets support for children not before the court, adop- and resources owned by the current tion assistance subsidy, the child’s income, that appears unreasonable for the income payments), or is means-tested, or claimed by the parent. received due to some hardship on the part of the parent (TANF, SSI, food stamps, disability • Whether the parent is a caretaker of a payments). handicapped or seriously ill child or rela- tive, if the care required reduces the par- Subsection C discusses the computation of ent’s ability to work outside the home. gross income. The court may use the most equitable of four options: The court may also consider other case- specific factors as appropriate. It should be 1) actual monthly income (plus overtime and noted that these factors can be used both ways, supplemental income as deemed equitable); that is, the presence of a particular factor may make it appropriate for the court to impute 2) average gross monthly income for time higher than actual income (for example, if a actually employed during the previous parent is able, by training or education, to earn three years; more), or to impute lower than actual income, 3) minimum wage for a 40-hour work week; or perhaps no income at all (for example, if a or parent lacks training or the ability to work and earn money). The court has great discretion on 4) imputed income as discussed in subsec- the issue of income imputation and can tailor a tion (D). gross monthly income that is most appropriate As under the previous statute, if the parent is in the case before it. permanently disabled, the court must use actu- Subsection E discusses self-employment al monthly gross income. income, mostly in the context of what should be Subsection D discusses imputing income. excluded from the gross income of the self- This section allows the court to use an amount employed parent. Self-employment income other than the actual earned income of a parent includes income from business operations, inde- when the actual amount does not reflect the pendent contracting or consulting, sales of goods parent’s true earning ability or the funds avail- or services, and rental income. The self- able for the support of the child. The court may employed parent is entitled to subtract the “ordi- use the actual or average income, or may nary and reasonable expenses necessary to pro- instead impute gross income. The court must duce such income.” The statute retains the lan- choose one method. guage that clarifies that a determination of

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2361 income for tax purposes does not control for If the guideline amount is greater than the child support purposes. Accelerated deprecia- SSA benefit, owes the difference between tion, in particular, is not considered a reasonable the amounts: expense and should not be deducted.5 Child support guideline amount: $ 600.00 Subsection F discusses the inclusion of fringe SSA benefit: $ 500.00 benefits as income. If a parent receives fringe Net child support amount: $ 100.00 benefits or in-kinds remuneration that signifi- cantly reduces personal living expenses, those Any “excess” SSA benefits paid for the child benefits shall be counted as income. Fringe over and above the guidelines amount are benefits may include company car, housing, or retained by the child’s caretaker and cannot be room and board. The statute specifically used to decrease the child support order or includes basic allowance for housing, basic reduce arrearages. The child support form allowance for subsistence and variable housing must include a notation about the use of SSA allowances for service members.6 benefits. Subsection G discusses the interaction of SSA Benefits and Past Support Social Security disability benefits and the child support guidelines. The new statute attempts The formula above is to be applied to ongo- to codify Oklahoma regarding the ing support only. It can only be applied to child treatment of Social Security benefits when cal- support from the date a motion to modify was culating the guidelines,7 and also to clarify the filed. However, the court may determine treatment of Social Security benefits paid whether or not to give credit for SSA benefits directly to the obligee or child as a cred- paid to the child’s caretaker prior to a modifi- it against child support arrears.8 cation. Credit can be given for monthly pay- SSA Benefits and Ongoing Support ments or for lump sums. The payments must have been made to the caretaker rather than to First, the statute sets out the calculation the child, and credit can only be given for the method for setting child support when the time period of the noncustodial parent’s dis- child receives Social Security benefits based on ability, as determined by the SSA. the death or disability of a parent. The benefit amount is included as income “to the parent on 43 O.S. §118C – CREDIT FOR OTHER whose account the benefit of the child is CHILDREN drawn.” The previous guidelines statute allowed the In other words, if the father is disabled and court to consider the obligations of parents for the child receives a disability benefit based on children not before the court, and the court father’s disability, the child’s benefit is includ- retains that power. Formerly, the statute ed in father’s income: required that the amount of a for Father’s actual monthly child support, to the extent actually paid, be income (from SSA benefit): $1,000.00 deducted from the parent’s gross monthly Amount paid by SSA to income. The previous statute allowed consider- mother on child’s behalf: $ 500.00 ation of children in a parent’s home, but did Father’s total monthly gross not provide any guidance as to how that con- income for child support: $1,500.00 sideration would work in the guidelines.9 The calculation continues as in any other In order to qualify for the credit, the chil- case, through the calculation of medical insur- dren must be: ance and child care costs. After the calculation 1) The biological, legal, or adopted child of is complete, the current monthly child support the parent; amount is compared to the amount of the ben- 2) born prior to the child in the case before efit paid on the child’s behalf. If the guideline the court; amount is less than the SSA benefit, no further 3) actually supported by the parent; and amount is assessed to father and he owes no 4) not be a child of the parents before the current monthly child support: court. Child support guideline amount: $ 450.00 The child must satisfy all of these criteria, or SSA benefit: $ 500.00 no credit may be given. The statute continues Net child support amount: $ 0.00

2362 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 to exclude from credit step children and other ordered amount, “averaged to the amount children for whom the parent has no legal actually paid over the most recent twelve obligation. month period.” This section provides credit for two types of “In-home children” refers to children who children who are not the children of the parents live in the parent’s home. In order to calculate in the case before the court. Under this statute, the credit for these types of children, the court the court will continue to credit the court determines the number of children entitled to ordered amount from the parent’s income. the credit, then uses the guideline amount for Now, the court must also set an amount for in- the parent’s income for that number of chil- home children according to the parent’s income dren. That amount is used as a credit from the and the guidelines. parent’s gross income in the same way that a court-ordered amount is credited. “Out of home children” refers to children not living in the parent’s home, but who are the In the example below, father is requesting subject of a court order for support. Once the credit for one child living in his home. Assum- parent proves the existence of a support order ing father’s monthly gross income is $1,000, the and compliance with the order, the parent may following calculation would apply: deduct from his income the actual court- Father Mother Parent Income Information $1,000 $0.00 Number of Qualified children living in The combined monthly income parent’s home 1 is used to determine each parent’s Hypothetical child support order. Apply Line 1 to share of the cost of raising their Child Support Guideline Schedule for number of child and to determine the children in Line 2 $206 75% of Hypothetical appropriate amount of support child support order for the child. Line 3 x .75 $154.50 In this case, father is entitled to a credit of $154.50 from his gross income, leaving him with an adjusted gross of $845.50. The Depart- ment of Human Services is charged with pre- paring a deduction worksheet that will be part of the child support guidelines computation form. This calculation can be done automati- cally as part of a guidelines calculator. 43 O.S. §118D – THE COMPUTATION This section contains the formula and mecha- nism of the guidelines. It is the “meat and pota- toes” of the child support guidelines and sets out how the actual computation is to be done. As under the previous statute, child support is com- puted by determining the gross income of both parents and then combining the income. The combined monthly income is used to determine each parent’s share of the cost of raising their child and to determine the appropriate amount of support for the child. Each parent pays his or her proportionate share of the guideline amount from the chart in 43 O.S. §119.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2363 This section also clarifies that child support is Changes to the PTA: based on physical custody. In cases where the • The PTA is presumptive, not mandatory. parents have (that is, each parent The presumption may be rebutted if the has at least one child for whom the parents are adjustment is not in the best interest of the responsible), the guidelines are calculated for child or if the increased parenting time each child, and then the amounts are offset. does not result in greater expenditures. The parent owing the larger child support amount becomes the obligor and the difference • The formula now uses a sliding scale to between the two amounts is the child support determine the adjusted combined child obligation. support obligation. The adjusted child sup- port obligation is found by multiplying the Much language from the previous statute has guideline amount (based on the combined been carried over into this section. gross monthly income of the parents) by a 1) The court may make provision for a pro- varying factor. The statute sets the factors spective adjustment to address any fore- as follows: seen changes, including changes in med- “(a). one hundred twenty-one (121) over- ical or child care costs. nights to one hundred thirty-one (131) 2) The court can provide for the cost of overnights, the factor shall be two (2), transportation between the homes of the b. one hundred thirty-two (132) overnights parents (with a new requirement that the to one hundred forty-three (143) over- allocation of these costs cannot signifi- nights, the factor shall be one and three- cantly reduce the ability of the custodial quarters (1.75), or parent to provide for the basic needs of the child). c. one hundred forty-four (144) or more overnights, the factor shall be one and one- 3) The Summary of Support Order form half (1.5).”10 (SOSO) must be prepared and presented to the judge in any case where DHS is Under this scheme, the credit off the base not a necessary party. The SOSO must child support more closely corresponds to contain the Social Security number of the the amount of time spent with the child. parents and the children. For example, if the incomes of the parents are equal, the noncustodial parent who It should be noted that due to privacy con- spends one-third of the time with the child cerns, Social Security numbers are generally will receive a 33 percent reduction in child not included in the body of pleadings and support. orders. Instead, the SOSO allows the capturing of that data in cases where DHS is not provid- • The provision prohibiting a child support ing services. This ensures that payments award against the custodial person has been through the centralized support registry can be removed. Instead, the statute forbids the identified and distributed in a timely fashion. payment of child support “by a parent hav- Like the district court cover sheet, the SOSO ing more than two hundred five overnights,” form is not filed with the court and the sensi- or roughly 60 percent of the time with the tive information contained on the form does child. Under this section, if the split is 59/41 not become part of the public court record. or above, the custodial person may be a 43 O.S. §118E – PARENTING TIME child support obligor. Of course, this will ADJUSTMENT only occur if the custodial person is a parent and has a larger gross monthly income than This section replaces the shared parenting the noncustodial parent. section in the previous statute. Much of the actual calculation remains unchanged, with a The statute also adds a built-in protection in few important exceptions. The trigger for the subsection E for the custodial person who is parenting time adjustment (PTA) is 121 over- facing having the child support obligation low- nights exercised by the noncustodial parent. ered by the application of the PTA. First, failure Once that threshold is reached, the parenting to exercise the number of overnights upon time adjustment is presumed. which the PTA is based is a material change of circumstances that would justify a modifica- tion. Second, if the obligor fails to exercise the

2364 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 number of overnights, the court can establish Medical Support Orders - Requirements the amount of the PTA as a , which is The statute sets out two requirements for then enforceable like any other child support medical support. The medical support order judgment. Finally, an obligor who fails to exer- must be: 1) reasonable in cost, and 2) accessible. cise the overnights faces losing the PTA for a The statute defines “reasonable in cost” as an prospective 12-month period. If that occurs, the actual premium cost (for the child(ren) only) obligor may only petition the court for reap- that does not exceed 5 percent of the gross plication of the PTA after a 12-month period of income of the responsible parent. “Accessible” exercising the overnights without receiving the is defined as a plan with available providers adjustment. that meet the child’s health care needs located For example, consider the case where a no more than 60 miles one way from the pri- mother is given a $100 reduction in child sup- mary residence of the child. port based on her exercising 121 overnights per The statute also sets out a hierarchy for the year. If she fails to keep the child for 121 over- court to use if multiple options are available. nights for a period of 12 months, the following The court should look first for health insurance can occur: available through the parents’ employers. If 1) Father can file a motion to modify to calcu- both parents have this type of plan available, late the child support without the PTA. the court must give priority to the preference of the custodial person. If no employer-sponsored 2) The court can grant a judgment against plan is available, the court next looks to other mother for $1,200 ($100 x 12 months). sources of private health insurance. This may Father can then enforce that judgment. include insurance available through a spouse’s 3) The court can order that even if mother employer, or a private insurance plan, such as begins to exercise the 121 overnights, she those offered by Blue Cross/Blue Shield. If this will not get the credit back for 12 months. option is not available, the court must order the So, in the modification proceeding, the parents to apply immediately for government court will calculate the child support with- medical assistance. In Oklahoma, this would out the PTA. be the SoonerCare program. The changes to shared parenting set out in this Cash Medical Support section should act as assurance to custodial par- The statute enacts a new principal in Okla- ents first, that the child support will not be homa child support, that of “cash medical sup- slashed, as the “cliff effect” has been ameliorat- port.” Cash medical support is defined as: ed by the variable rate set out in (D)(2), and second, there will be meaningful recourse if the a. an amount ordered to be paid towardthe PTA is granted and the noncustodial parent fails cost of health coverage provided by a public to live up to his or her side of the bargain. entity or by a person other than the parents through employment or otherwise, or 43 O.S. §118F – MEDICAL SUPPORT b. fixed periodic payments for ongoing The new statute, based on changes to the medical costs. federal governing child support and Medicaid,11 requires courts to go further in 43 O.S. §118F(A)(2). Cash medical support is establishing meaningful medical support calculated as the obligor’s pro rata share of the orders for children. Under this statute, the actual monthly medical expenses, or 5 percent of court is required to enter an order for medical his/her monthly gross income, whichever is less. support “in any case in which an ongoing child support order is entered or modified.” Medical The cash medical order can be calculated support is defined as health insurance, cash using a chart promulgated by OCSS with assis- medical support or a combination of the two. tance from the Oklahoma Health Care Author- The court must make specific orders regarding ity. Under this chart, if the combined income of how health insurance is to be provided and the parents is at or below 185 percent of the must require the parent ordered to provide federal poverty guidelines for the number of coverage to provide that the health care children in the case, the cash medical order is coverage has been provided as ordered. zero. If the income exceeds that amount, the cash medical order is calculated by multiplying $115 by the number of children in the case, then

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2365 pro rating it between the parents according to The court can grant a credit of $500 ($50 x their share of the combined income. The obli- 10 months) off of obligor’s past support, or gor’s portion is added to the monthly child give the obligor a reduction of $500 off of support amount. The cash medical order may the ongoing child support, at the rate of also be used by pro rating the actual monthly $13.88 per month (36 month payout). medical expenses for the child if the parents Example 2: NCP provides medical coverage have information as to those costs. at a cost of $100 per month. The base child sup- The statute allows the discontinuation of port is $400 per month and the parents are each cash medical support if health insurance responsible for 50 percent of the child support. becomes available for the child, provided that • Obligor’s child support order: $200 base the obligor has enrolled the child and provided child support - $50 obligee’s portion of the notice to the obligee and DHS (as appropriate) medical insurance = $150 total monthly of the enrollment. amount. Medical Costs and the Guidelines • After 10 months, the coverage lapses and As under the previous statute, the health no coverage is in force. The obligor has no insurance cost for the child(ren) is allocated cost for insurance. Eight months after that, between the parents according to their respec- the obligee files a motion to modify. tive percentages of the combined gross income. • The court can find that obligor owes $500 Either the obligor’s portion of the insurance ($50 x 10 months) in additional child sup- amount is added to the obligor’s base child port, since he did not actually pay the support – in cases where the obligee provides insurance for those 10 months. The $500 the insurance – or the obligee’s portion is sub- can be set as a judgment and enforced like tracted from the obligor’s base child support – any other child support judgment. in cases where the obligor provides the insur- ance. In the case of a cash medical support Other Expenses and Exchanging Information order, the cash medical support is added to the obligor’s base child support without further The new statute builds in some protection for pro rating, as the amount already represents parents paying out-of-pocket medical expens- the obligor’s portion of the “actual medical es. As before, uncovered expenses are paid cost.” The parent providing health coverage proportionately between the parents. However, must furnish proof of the insurance and docu- proof of those expenses must be exchanged mentation of any change in the cost, carrier or within 45 days of receiving the explanation of benefits within 30 days of the date of change. benefits or other proof of the expense. If the parent incurring the expense fails to exchange If the medical cost changes, the court may the information within this time frame, or a adjust the past due or ongoing child support in parent fails to notify the other parent of a accordance with the changes. This is shown in change in coverage or cost, the court may deny the examples below. credit or reimbursement for the expense or increased premium. Example 1: Custodial person (CP) provides medical coverage at a cost of $100 per month. Changes in insurance costs should be The base child support is $400 per month and addressed in a review of the order for modifi- the parents are each responsible for 50 percent cation as set out in Section 118I. of the child support. 43 O.S. §118G – CHILD CARE • Obligor’s child support order: $200 base As before, the new guidelines statute allows child support + $50 medical insurance = the court to make provision for child care $250 total monthly amount. expenses. This section provides that child care • After 10 months, the coverage lapses and expenses must be “reasonably necessary to no coverage is in force. The CP has no cost enable either or both parents to: 1) Be employed; for insurance. Eight months after that, the 2) Seek employment; or 3) Attend school or obligor files a motion to modify. training to enhance employment income.”12 The child care costs should be annualized (or • During the modification, the court can find averaged), allocated between the parents that for eight of the 18 months the order according to their percentages, then added to was in effect, the CP had no insurance cost.

2366 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 the base child support, becoming part of the the situation where DHS is providing a child final child support order. While adding in the care subsidy, the co-payment amount fluctu- child care to the final amount is not always a ates as the parent’s income increases or decreas- popular policy, under Oklahoma case law, it is es. Child support is considered income when more appropriate. determining qualification and amount of a child care subsidy. The calculation is as fol- Child Care When DHS is Not Providing a Subsidy lows: First and foremost of any discussion of child 1) Take the base child support obligation of care expenses must be a consideration of Barnes the parent who is not paying the child care v. Barnes, 2005 OK 1. In that case, the Oklahoma expense and add it to the custodial par- Supreme Court ruled it was error when a ent’s actual income. court did not include a determination as to the amount of child care expenses.13 The court 2) Refer to the chart showing child care sub- found that “[u]nder Oklahoma statute, child sidy co-payment amounts. (The chart is care expenses are to be considered a part of the available at tinyurl.com/yz9qjfk) Find the total child support due to the mother, and it is appropriate co-pay for the obligee’s new also collectable in an income assignment…”14 income (i.e., income after child support is Guided by this unambiguous statement by the received). Supreme Court, the statute includes child care 3) That co-pay is used on the guidelines chart amounts as part of the final monthly child sup- as the child care amount. The noncustodial port order. parent is responsible for his or her pro rata Again, standard fluctuations in child care share of the co-pay amount. amounts are often a known quantity at the out- In a nutshell, the child care co-payment is a set of a case. For example, it is common knowl- known quantity that will change shortly after edge that child care costs are higher in the child support is ordered. Therefore, it is appro- summer than during the school year. Child priate for the court to make provision for it in care is often abated during extended visitation the child support order, rather than forcing the periods with the non-custodial parent. These obligee to move for modification. issues can be taken into account during the process of annualizing or averaging. During As required by statute, DHS has promulgat- negotiation, discovery and sometimes trial, ed administrative rules to provide clarification evidence is accrued with regard to the cost of and fill in the gaps for real-world scenarios. child care, when it will be used and when the The policy for DHS in general and for child costs will change. The order can reflect those support in particular can be found at www. changing circumstances without bringing the okdhs.org/library/policy/ and at the Okla- parties back to court with each fluctuation. homa Secretary of State’s Web site. Specific Changes occurring outside of the expected child support policy is included in the “Okla- pattern, like any other change in the expenses homa and Administrative Code Relating or income of the parties, are best handled by a to Child Support” booklet distributed free of motion to modify. Participants in a DHS child cost throughout the year. support case can use the administrative pro- Parents Providing Child Care cess to file for modification free of charge. Stan- dard forms (available at www.okdhs.org/ The statute continues to allow parents to pro- library/forms/default.htm) enable most par- vide child care while the other parent is at ents to file for modification pro se and avoid work or attending school or training “if it attorney’s fees. would lead to a significant reduction in the actual annualized child care cost.” Child Care When DHS is Paying a Subsidy 43 O.S. §118H – DEVIATIONS This language has been in the statute since 2006. The intent of the section is to quantify the As under the previous statute, the court may child care co-payment paid by an obligee who find that the child support guidelines amount receives a child care subsidy from DHS. This is inappropriate under the facts of a particular gives the court a specific way of dealing with a case and may deviate from that amount, either foreseeable change of circumstances in the increasing the child support order or decreas- immediate future. See e.g., 43 O.S. §118(E)(21) ing it. The new statute bases all deviations on (as currently in effect) and 43 O.S. §118D(F). In the best interests of the child involved, and

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2367 allows the court to deviate only after meeting • changes in medical costs; the best interests test. Additionally, the court • one of the children ages out. must find one of these factors is present: Bases for modification throughout the guide- a. the amount of support so indicated is lines statutes:16 unjust or inappropriate under the circum- 1) The number of overnights is below or in stances, excess of the designated nights used to b. the parties are represented by counsel and determine the PTA17 have agreed to a different disposition, or 2) Change in the health insurance premium18 c. one party is represented by counsel and 3) An increase or decrease in the child’s the deviation benefits the unrepresented needs19 party. 4) An increase or decrease in the parties’ income20 43 O.S. §118H(B)(2). No deviation may be 5) Changes in actualized annual child care made that “seriously impairs the ability of the expenses21 obligee in the case under consideration to 6) When one of the children ages out or is maintain minimally adequate housing, food, no longer entitled to support.22 and clothing for the children being supported by the order or to provide other basic necessi- Modifications continue to be effective based ties, as determined by the court.”15 on the filing date, absent an agreement of the parties or a court finding that the material The court must support any deviation with change of circumstances actually occurred later specific findings of fact, which must include than the filing date. The statute also still pro- the reasons for the deviation, the guideline hibits retroactive modifications. In other words, amount of child support, and a finding of how a court can order that a modification is effective the deviation serves the best interest of the later than the filing date, but not prior to the child and how the application of the guidelines filing date. Child support orders are aggregates would be unjust or inappropriate. and are not “per child” orders. A child aging The statute allows for deviation: out is not an automatic modification, but rath- er, the parents must seek a modification from • in cases of extreme economic hardship; the court. The statute does clarify that child • if a child in a parent’s home has extraordi- support automatically terminates once the nary medical needs (the court must consider youngest child ceases to be entitled to sup- all other resources available for meeting port. those needs); • in cases where the child is in foster care and With regard to the informal review and the deviation will assist in returning the adjustment process and the exchange of child to the parent. income information, the court can make pro- vision or the parties can agree to the periodic The court may also add amounts to the child exchange of information. If the order does not support obligation as a deviation where there contain such a provision, either party can are extraordinary education needs for a child request the information and it must be pro- with a disability, or for special expenses, such vided within 45 days. This information can as music lessons, private school tuition, travel include verification of income, proof and cost or other special expenses that the income of the of medical insurance of the children, and cur- parents will support. rent and projected child care costs, as well as 43 O.S. §118I – MODIFICATION information regarding overnights for the PTA. Modification agreements must be in writing This section combines all the modification using the standard modification forms (avail- language from the previous statute. Child sup- able on the OKDHS Web site) and the child port orders are modifiable upon material support computation form. changes in circumstance, which include, but are not limited to: CONCLUSION • an increase/decrease in the needs of the The changes to the guidelines statutes are not child; minor. However, due to the reorganization and • increase/decrease in parental income; clarification of different topics within the guide- • changes in annualized child care costs; lines, the end result should be a product that is easier to access and use for practitioners and

2368 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 the public alike. Updates to the automatic child 16. With thanks to Julie Rivers for her concise list in her paper “Child Support For The New Millennium: The Good, The Bad And support calculator will also help to ease the The Ugly” presented on Sept. 10, 2008, during an OBA Webcast. transition period. 17. 43 O.S. §118E(E). 18. Located both at 43 O.S. §§118F(K) and 118I(A)(1). 19. 43 O.S. §118I(A)(1). 1. A note about the numbering: The sections are number 43 O.S. §118, 20. 43 O.S. §118I(A)(1). 118A, 118B, etc. The numbering scheme was determined by legislative 21. 43 O.S. §118I(A)(1). staff. Citations will be a little unwieldy due to the use of this scheme. 22. 43 O.S. §§118I(A)(1) and (C). For example, a citation to the definition for “parent” will be 43 O.S. §118A(10). However, having the material broken down into separate statutory sections should still make using the guidelines easier for practitioners. 2. For the purposes of this article, references to the “previous” statute will be to the version of 43 O.S. §118 that was in effect through June 30, 2009. Reference to the “current” statute will reference the About The Author statutory changes in SB 2194, effective July 1, 2009. 3. The reference to “days” in this and in subsection (5) are believed to be a result of a scrivener’s error, according to the author of this Amy E. Wilson graduated article. The text should read “overnights.” from the University of Tulsa 4. “Parent” means an individual who has established a parent- child relationship under Section 5 of this act.” 10 O.S. §7700-102(13). College of Law in 2000, and “Parent-child relationship” means the legal relationship between a was licensed to practice law in child and a parent of the child. The term includes the mother-child relationship and the father-child relationship.” 10 O.S. §7700-102(14). September 2000. She worked as 5. See e.g., Fisher v. Fisher, Court of Civil Appeals unpublished an intern in the Public Defend- opinion #102,872 (Division 3, 2007). er’s Office for Tulsa County. 6. See e.g., Hees v. Hees, 2003 OK CIV APP 103. 7. Nazworth v. Nazworth, 1996 OK CIV APP 134. She has been a state’s attorney 8. See e.g., Merritt v. Merritt, 2003 OK 68. for Oklahoma Child Support 9. See 43 O.S. §118(C). 10. 43 O.S. §118E(D)(2). Services since February 2001. 11. See Federal Action Transmittal 08-08. Ms. Wilson presently serves as Appellate and Legal 12. 43 O.S. §118G(A). 13. Id. at ¶ 16. Research Counsel for OCSS. She is the 2009 chair of 14. Id. at ¶ 18. the OBA Family Law Section. 15. 43 O.S. §118H(A).

NOTICE OF PUBLIC HEARING on the SCHEDULE OF MEDICAL and HOSPITAL FEES

The Oklahoma Workers’ Compensation Court Administrator will hold a pub- lic hearing on Tuesday, December 8, 2009 at 1:00 p.m. in Emerson Hall at the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, OK. The purpose of the hearing is to receive public comments regarding revision of the workers’ compensation Schedule of Medical and Hospital Fees. The proposed fee schedule changes are available online at: www.owcc.state.ok.us/Whats_New.htm Comments concerning the draft fee schedule are encouraged and requested to be submitted in writing at or before the public hearing. Submit comments to the Workers’ Compensation Court Administrator, 1915 N. Stiles Ave., Oklahoma City, OK 73105, or electronically to [email protected].

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2369 2370 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 FAMILY LAW Is Common Law Marriage Here to Stay in Oklahoma? By Michelle C. Harrington

ommon law marriage (more properly referred to as a “pre-Tridentine canonical consensual marriage,” accord- Cing to the venerable Justice Opala)1 is a doctrine which existed in England prior to the colonization of America. The sole requirement for a common law marriage was an agreement to be married. The United States Supreme Court considered the validity of the common law marriage in 18432 and finally approved the doctrine in 1877. At that time the United States was barely 100 years old — there were vast stretches on the frontier where churches and courthouses were scarce and indi- viduals with the authority to marry others were a rarity. Recog- nizing common law marriage allowed women the protections of marriage at a time when single women did not have property (or voting) rights, and further allowed for the protection of chil- dren who would otherwise be labeled “illegitimate” (children born outside of wedlock did not have rights for support or ). The only difference between a common law mar- riage and a ceremonial marriage is the formality with which they occur. Both are equally valid in Oklahoma.

At the turn-of-the-century nearly two-thirds statute is directory and not mandatory.5 Legis- of the states recognized common law mar- lative opponents of common law marriage riages. Today, Oklahoma is one of only a hand- thought they had succeeded in their mission to ful of which still recognize the rid Oklahoma of the doctrine when they added doctrine3 — in spite of the fact that for decades a term to the statute which opponents of the doctrine have tried to abolish stated that requirements therein are mandato- it. Early in our history, statute required a mar- ry and not directory.6 However, that language riage license be obtained prior to getting mar- was not strong enough to overcome Title 12 ried.4 Nevertheless, the common law marriage O.S. Section 2. That statute states: doctrine prevailed with courts indicating the

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2371 The common law, as modified by constitu- legislative attempts — bills have been drafted tional and , judicial decisions over the years attempting to do just that — they and the condition and wants of the people, just haven’t made it through both legislative shall remain in force in aid of the general houses. So here we are, with common law mar- statutes of Oklahoma; but the rule of the riage alive and well in Oklahoma. common law, that statutes in derogation COMMON LAW MARRIAGE REALITIES thereof, shall be strictly construed, shall not be applicable to any general statute of of Phifer7 summarized decades of case Oklahoma; but all such statutes shall be law to set forth necessary “elements” to deter- liberally construed to promote their object. mine if a common law marriage existed. The In other words, if the wants to over- party asserting a common law marriage has come a common law, it better be very specific. the burden to prove 1) an actual and mutual To date we do not have a specific statute that agreement between the parties to be husband states common law marriage will no longer be and wife; 2) a permanent relationship; 3) an recognized in Oklahoma. But not for lack of exclusive relationship; 4) as man and wife; and 5) the parties to the marriage COMMON LAW MARRIAGE MYTHS must hold themselves out publicly as husband and wife. 1. Living together seven years (or any other magic number) creates a Phifer should have used the word “character- common law marriage. There is istics” instead of “elements” because, as subse- quent case law indicates, not all five items need not, nor has there ever been, a 8 minimum time of cohabitation that to be present. By the time the matter comes automatically creates a common before the court, one party is obviously deny- law marriage in Oklahoma. ing there was mutual agreement to be husband and wife. “Permanent” is rather nebulous, too 2. Filing joint tax returns is an admis- — the fact that they are before the court indi- sion of common law marriage. Not cates that the relationship is not going to be necessarily — the court will look at permanent. Having sexual relations outside of the totality of the circumstances. For marriage is not going to, on its own, defeat a instance, whether or not the com- common law marriage claim any more than munity believes the parties were adultery within a ceremonial marriage invali- married or if there is contradictory dates the marriage. And the same can be said evidence such as real property - for cohabitation — the parties do not have to ed to a party as a “single person.” actually reside together for a marriage to be However, there is a caveat. Although proven. Evidence of the parties holding them- signing the joint return does not selves out to the public to be husband and wife automatically create a common law will be one of the strongest indicators of what marriage, it does create an opportu- the parties’ intent was at the time a common law nity for opposing counsel to enjoy marriage was created. the rare Perry-Mason-moment where he can ask: “Were you lying to the Testimonial evidence from family, friends, United States government and professional acquaintances, neighbors and attempting to commit or are community members as to whether or not the you lying today about the existence parties behaved in a way that was consistent of a marriage?” with being married is important — such as the parties referring to each other or introducing 3. Signing a hotel registry “Mr. and each other in spousal terms. Documentary evi- Mrs.” shows intent to be married. dence can range from something as seemingly Some years back this may have minor as nametags declaring “Mrs. His-last- been persuasive. Today, without name” for a professional function, to listing the more substantiating evidence, the other party as a spouse for the purpose of court may be very clear on the obtaining a benefit, to the taken-under-oath intent of the signing party and documents such as income tax returns. The may conclude that the intent had court can look to the totality of the circum- nothing to do with marriage. stances. For instance, an income tax return wherein a party signs off as a single person

2372 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 can go forth and the court can award alimony, divide property and divide debts of the parties With the plethora of churches, in an equitable manner. If it is determined no common law marriage exists, the parties must courthouses and persons seek available relief through other civil actions authorized to marry couples, such as paternity or suits. Similarly, if a common law marriage is assert- does common law marriage still ed at the time of a party’s death that was not previously acknowledged, the court serve a useful purpose? must determine whether or not a common law marriage existed before it can properly distrib- ute the estate of the deceased. In addition, enti- may not defeat a common law marriage claim ties disbursing death benefits, such as a work- when there is also real property deeded to the ers’ compensation court, has the same duty to parties “as married persons” as well as testi- ascertain whether or not a common law mar- monial evidence about the parties referring to riage exists if a claim is made. each other as “husband” and “wife.” The party Not properly terminating a common law asserting the existence of the common law mar- marriage at the time it physically ends can riage has the burden to prove it by clear and have significant repercussions — often years convincing evidence.9 later. One of the harshest consequences is the TERMINATING THE COMMON LAW voiding of a later marriage, thus resulting in a MARRIAGE denial of inheritance or death benefits to an individual who lived as a spouse in good faith There is no such thing as a common law divorce. Because a common law marriage is a and had an expectation — and often a great valid marriage, it must be terminated the same need - for the financial protection. way that a ceremonial marriage is ended — THE DEBATE CONTINUES either by death, or divorce. Many don’t think such formal actions are necessary With the plethora of churches, courthouses when no formal action was taken to solemnize and persons authorized to marry couples, does the marriage. So what if they filed joint income common law marriage still serve a useful pur- 10 taxes for two years? So what if they had a bank pose? Many say no. Opponents of the doctrine account on which the female partner used her argue that we are no longer a paternalistic soci- partner’s surname? Who will care if they just ety wherein women do not have education and go their separate ways and start living as single property rights consistent with the male popu- persons if they are both in agreement to do so? lation; thus, women do not need the protection Probably no one for a while. Until there is of the defacto marriage as they once did. Fur- money to be had. The potential to receive ali- ther, children’s rights to be supported and mony, property, inheritance, death benefits and entitled to inheritance can be ascertained other financial incentives can really jog a mem- through paternity actions. And the morals of ory. Because a common law marriage is a valid our society have shifted to the point where a marriage, any subsequent marriage entered child being born out of wedlock does not carry into without terminating the common law mar- the dramatic stigma it once did. As a matter of riage would be bigamous and, thus, void. fact, it is statutorily incorrect to refer to a child Therefore, a common law spouse could actual- born outside of marriage as “illegitimate” or a ly receive benefits intended for a subsequent “bastard”11 (the statute does not address the life partner. use of the latter term to describe individuals when not referring to parentage). If a party is denying that a common law mar- riage exists in response to a petition for dissolu- Public policy arguments can be made to abol- tion of marriage, the court must conduct an ish common law marriage. If only ceremonial evidentiary hearing to determine whether or marriage was recognized, public records would not there exists a valid marriage before the be clear; citizens would not be able to avoid a divorce can proceed. If the court determines that ’s statutory requirements; fraud in the parties did indeed have an intent to be mar- the transmission of property would be reduced; ried and a common law marriage was estab- and the ability of the state to enforce health- lished, the dissolution of marriage proceeding related marital requirements through the licens-

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2373 ing process could be effectuated. One set of CONCLUSION authors express concern about putting In order for common law marriage to be in the position of having to determine whether abolished in Oklahoma there has to be a statute or not a marriage exists: that is specific about doing so. The doctrine The “curative powers” of common law could be statutorily abolished entirely or pro- marriage can serve a double-edged sword. spectively, allowing recognition of the exis- Important to the outcome in any case can tence of a common law marriage created prior be the proclivity of the particular court to to the enactment date. But until that happens, try to find a socially desirable solution people in this state can continue to create valid under the circumstances by manipulating by holding themselves out publicly facts in terms of rules of evidence, or by the to be married and behaving in a way that evi- presumption of validity of the most recent dences intent to be married. And the debate marriage, the probative value of the cere- about whether or not there is a valid purpose mony, the presumption of favoring legiti- for the doctrine of common law marriage to macy, or shifting the burden of proof. Sig- exist in Oklahoma is sure to continue. nificant in many cases is the context or proceeding in which the question is raised; 1. Mueggeborg v. Walling, 1992 OK 121, 836 P.2d 112 (S. Ct. 1992). 2. Jewell’s Lessee v. Jewell, 42 U.S. (1 How.) 219 (1843). the potential here is vast, including ques- 3. The other states still recognizing common law marriage are tions of the availability of the husband- Alabama, Colorada, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and the District of Columbia. There are some wife privilege in criminal cases, whether a additional states that recognize a common law marriage if it was estab- prior will was revoked, whether the appro- lished prior to a statutory date. priate action for dissolution should be 4. Title 43 O.S. Sect. 4. 5. See Reaves v. Reaves, 1905 OK, 15 Okla. 240, 82 P. 490 and In re divorce or annulment and what this will Love’s Estate, 1914 OK 332, 142 P. 305 (Okla. 1914). mean in terms of support, determination of 6. Title 43 O.S. Sect. 5(E). 7. 1981 OK CIV APP 21, 629 P.2d 808. an insurance beneficiary, or the ordering of 8. Standefer v. Standefer, 2001 OK 37, 26 P.3d 104. heirs under intestacy law.12 9. Mueggeborg v. Walling, 1992 OK 121, 836 P.2d 112 (S. Ct. 1992). 10. Numerous commentators have addressed arguments for and Removing the obligation to have evidentiary against the continued viability of the common law marriage doctrine. For a summary of arguments most often used by opponents to com- hearings (regarding the proof needed to estab- mon law marriage, see McCormack, John L., “Title to Property, Title to lish a common law marriage) in a myriad of Marriage: The Social Foundation of Adverse Possession and Common Law Marriage,” 42 Valparaiso University Law Review 461, (Winter legal actions would result in judicial efficiency. 2008). 11. Title 10 O.S. Sects. 1.1 and 1.2. On the other hand, there is support for com- 12. Cases and Materials, Fifth Edition, by Wadling- mon law marriage. One author states that fail- ton and O’Brien (University Casebooks 2002). 13. Cynthia Grant Bowman, A Feminist Proposal to Bring Back Com- ure to recognize the doctrine has a negative mon Law Marriage, 75 Or.L.Rev. 709, 769-770. effect on women — especially those who are 14. Examples of Statutes can be found in the widowed, abandoned, victims of domestic vio- state codes for California, Colorado, Illinois, Louisiana, Minnesota and lence, minorities and persons of color.13 Local Montana. proponents for common law marriage are con- cerned that innocent would be denied About The Author rights and benefits they would otherwise be entitled to but for fraud or mutual mistake. A Michelle C. Harrington few states have “putative spouse” statutes that graduated in 1992 from OU. allow the court to declare a putative spouse She is a solo practitioner whose on one who had good-faith belief that he practice is limited to family law was married in spite of the fact that the mar- and guardian ad litem represen- 14 riage does not actually exist. Oklahoma does tation. She has been an adjunct not have such a statute. At this time, it is pos- professor at OCU School of sible that a party could think he was married Law since 1999 teaching family for years and find out after the death of his law and ADR in family law. spouse that, because of a technicality (such as Additionally, she is on the the person who officiated the marriage did not teaching faculty for Interdisciplinary Training for have the legal authority to do so) he was not. and Neglect. She is a master member of Without the recognition of common law mar- the Ruth Bader Ginsburg Inn of Court and serves as riage, such a person would not be entitled to president-elect for the OKC Downtown Chapter of the any death benefits or inheritance from his National Exchange Club. long-time partner.

2374 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 The Government and Section presents

Current Issues in Public Sector Law

Oklahoma History Center-Chesapeake Room 2401 N. Laird Avenue, Oklahoma City, Oklahoma 73105 Friday, December 11, 2009 9:00 a.m. to 5:00 p.m.

Morning Session

9:00 to 9:20 Registration- Continental Breakfast

9:20 to 9:30 Welcome and opening comments

9:30 to 10:20 David Lee, Esq. An Update on State Court Litigation against Public Entities & Officials

10:25 to 11:15 Micheal Salem, Esq. Current Trends in 1983 Litigation: New Pleading Requirements

11:20 to 12:10 Andrew W. Lester, Esq. A Board Member’s Perspective on Ethics for the Government

12:10 to 1:30 Lunch on your own

Afternoon Session

1:30 to 2:20 Garvin Isaacs, Esq. Trial Techniques

2:30 to 3:00 Afternoon break

3:10 to 4:00 Mike Crawford, CPA. Auditing Public Entities/ Legal Implications

4:10 to 5:00 Margaret Love, Esq. Whistle blowers

REGISTRATION: Section Members email Name and Bar Number to [email protected]; non- members mail $25.00 check payable to OBA c/o Treasurer Scott Boughton, Assistant Attorney General, 313 NE 21st St., OKC, OK 73105 before 12/1/09. (6 Hrs. CLE credit pending, including one hour of ethics.)

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2375 2376 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 FAMILY LAW For Better or Worse: The Union of Family Law and ERISA By Kenni B. Merritt

amily law frequently intersects with the federal law of ERISA1 in a complex union. For better or worse, family law Fattorneys must often deal with employee benefits and ERISA issues, and benefits attorneys must often deal with family law matters. In this article, I will try to demystify ERISA for the fam- ily law practitioner. I will discuss the interplay of family law and ERISA and recent developments in some of the key employee benefit issues that typically arise in family law matters.

ERISA is a federal statute that governs a spouse, ex-spouse, child or other dependent employee benefit plans. Under ERISA, “plan” of a plan participant. The exception applies means an employee benefit plan, which can be only if the domestic relations order meets spe- either a welfare plan or a pension plan.2 cific legal requirements that make it a qualified Employee welfare benefit plans are plans estab- domestic relations order, or “QDRO.”3 lished or maintained by an employer that A QDRO is a domestic relations order that provide welfare benefits such as medical, dis- gives a so-called alternate payee, i.e., the retire- ability and death benefits. Employee pension ment plan participant’s spouse, former spouse, benefit plans, commonly referred to as retire- child or other dependent, the right to receive ment plans, are plans established or main- plan benefits and that meets certain other tained by an employer that provide retirement requirements.4 A state authority, generally a income to employees or result in a deferral of court, must actually issue a judgment, order or income by employees for periods extending to or otherwise formally approve a prop- the termination of employment or beyond. erty settlement agreement before it can be a Employee benefit plans are governed by both domestic relations order under ERISA. The ERISA and the Internal Revenue Code. The mere fact that a property settlement is agreed U.S. Department of Labor and the Internal to and signed by the parties will not cause the Revenue Service have dual jurisdiction over agreement to be a domestic relations order. A the of employee benefit plans. domestic relations order may be issued by any QUALIFIED DOMESTIC RELATIONS state agency or instrumentality with the author- ORDERS ity to issue judgments, or orders, or to approve property settlement agreements, pur- Under ERISA and the Internal Revenue Code, 5 the benefits of an employee pension plan par- suant to state domestic relations law. ticipant generally may not be assigned or alien- In drafting a QDRO, the family law practitio- ated. The law provides an exception for domes- ner must provide the following required infor- tic relations orders that relate to child support, mation: 1) the name and last known mailing alimony payments or marital property rights of address of the participant and each alternate Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2377 payee; 2) the name of each plan to which the other dependent of an employee or former order applies; 3) the dollar amount or percent- employee who is a participant in an employee age or the method of determining the amount or benefit plan may be able to collect up to 100 percentage of the benefit to be paid to the alter- percent of all debt owed.7 In addition, for an nate payee; and 4) the number of payments or obligor who is receiving benefit payments from time period to which the order applies. a plan, by ordered periodic distribution of the obligor’s benefits, a QDRO can assure timely In addition, there are certain provisions that and consistent support payments until all minor a QDRO must not contain. The domestic rela- children emancipate.8 tions order must not require the plan to: 1) provide an alternate payee or participant with To meet ERISA’s QDRO requirements, the any benefit or option not otherwise provided language of a domestic relations order as part under the plan; 2) provide for increased bene- of a divorce decree must be unambiguous and fits; 3) pay benefits to an alternate payee that must specifically reference the plan. It is impor- are required to be paid to another alternate tant to recognize that ERISA preemption does payee under another order previously deter- not apply to QDROs. To avoid ERISA preemp- mined to be a QDRO; or 4) pay benefits to an tion, a domestic relations order as part of a alternate payee in the form of a qualified joint divorce decree must substantially comply with and survivor annuity for the lives of the alter- ERISA’s requirement for QDROs, including nate payee and his or her later spouse.6 If an specifically naming the alternative payee and alternate payee is a minor or is legally incom- specifically referencing the plan. In addition, petent, the order can require payment to some- family law practitioners should be aware that, one with legal responsibility for the alternate even though ERISA’s QDRO rules apply by payee, such as a guardian or a party acting in their terms only to employee pension plans, loco parentis in the case of a child, or a trustee as courts often require employee welfare plans to agent for the alternate payee. comply with QDROs. The administrator of the employee benefit The U. S. Department of Labor Web site9 has plan that provides the benefits affected by a some helpful information about QDROs, domestic relations order is initially responsible including a set of FAQs. for determining whether the order is a “quali- QUALIFIED MEDICAL CHILD fied” domestic relations order. ERISA and the SUPPORT ORDERS Internal Revenue Code impose specific respon- sibilities on the retirement plan administrator to ERISA requires that a group health plan pro- determine whether a domestic relations order vide benefits in accordance with a qualified is a QDRO. Plan administrators, as plan fidu- medical child support order (QMSCO).10 A ciaries, are required to discharge their duties QMCSO is a medical child support order that prudently and solely in the interest of plan par- creates or recognizes the right of an “alternate ticipants and beneficiaries. Among other things, recipient” to receive benefits for which a par- plans must establish reasonable procedures to ticipant or beneficiary is eligible under a group determine the qualified status of domestic rela- health plan or assigns to the alternate recipient tions orders and to administer distributions the right of a participant or beneficiary to pursuant to qualified orders. Administrators are receive benefits under a group health plan. required to follow the plan’s procedures for Any child of a participant in a group health making QDRO determinations. Administrators plan who is recognized under a medical child also are required to furnish notice to partici- support order as having a right to enrollment pants and alternate payees of the receipt of a under the plan with respect to such participant domestic relations order and to furnish a copy is an alternate recipient. A medical child sup- of the plan’s procedures for determining the port order must be recognized by the health qualified status of such orders. plan as “qualified” if it includes certain infor- mation and meets other requirements of Family law practitioners can use QDROs for a ERISA’s QMCSO provisions. ERISA also number of purposes. QDROs are used to give a requires that a properly completed National divorced spouse his or her share of retirement Medical Support Notice must be treated as a plan benefits. Also, QDROs can be a valuable QMCSO. source for collection of overdue child support and maintenance obligations. Through the use A medical child support order is not required of a QDRO, a spouse, former spouse, child or to be issued by a state court. Any judgment,

2378 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 decree or order that is issued by a court of com- in the plan, the child must be covered. If, as a petent jurisdiction or an administrative agency condition for covering his dependents, the authorized to issue child support orders under employee must be enrolled, the plan must state law (i.e., a state child support enforcement enroll both. agency) and that provides for medical support The U.S. Department of Labor Web site12 has of a child is a medical child support order. some helpful information about QMCSOs. A medical child support order must contain COBRA the following information in order to be qualified: 1) COBRA13 allows certain indi- the name and last known viduals to extend employer- mailing address of the par- provided group health cover- ticipant and each alternate One of COBRA’s age if they would otherwise recipient (the order may lose the coverage under a substitute the name and qualifying events is loss of group health plan subject to mailing address of a state COBRA due to certain qualify- or local official for the mail- plan coverage due to the ing events. One of COBRA’s ing address of any alternate qualifying events is loss of recipient); 2) a reasonable divorce or plan coverage due to the description of the type of divorce or legal separation of health coverage to be pro- of an employee covered by an employee covered by a vided to each alternate group health plan. Entry of a recipient or the manner in a group health plan. divorce decree, rather than just which such coverage is to filing for divorce, is the quali- be determined; and 3) the fying event for the spouse who period to which the order applies.11 loses group health plan coverage. It’s impor- tant to note that legal separation, which is not As with QDROs, there are certain provisions defined in COBRA, may not result in a loss of that a QMCSO must not contain. A medical health plan coverage under the plan’s terms, in child support order may not require an employ- which case there would be no COBRA qualify- ee benefit plan to provide any benefit or option ing event. not otherwise provided under the plan, except to the extent necessary to meet the require- There are special COBRA rules that apply if ments of certain state laws. an employee cancels the group health plan cov- erage of the employee’s spouse in anticipation The administrator of the group health plan is of divorce.14 A participant in a group health required to determine whether a medical child plan may decide to drop coverage for his or her support order is qualified. The administrator is spouse even before filing for divorce. COBRA required to make this determination within a is generally only available if the individual is reasonable period of time, pursuant to reason- covered by the plan on the day before the able written procedures that have been adopt- qualifying event. So, but for the application of ed by the group health plan. The administrator special COBRA rules for this situation, the must first notify the participant and the alter- dropped spouse would not be entitled to nate recipient of the receipt when the plan COBRA. But under the special COBRA rule, receives a medical child support order and the elimination or reduction in coverage in must give them copies of the plan’s procedures anticipation of divorce is disregarded in deter- for determining whether it is qualified, and mining whether the divorce caused a loss of then the administrator must notify those par- coverage. Under these special rules, upon ties of its determination whether or not the receiving notice of a divorce or legal separa- order is qualified. tion, a plan that is required to make COBRA Often, an employee named in a medical child continuation coverage available to the spouse support order is eligible to participate in the must begin to make coverage available as of group health plan but is not enrolled in the the date of the divorce or legal separation. plan. In this situation, the plan administrator The Department of Labor Web site15 and the must determine if the order is qualified and, if Internal Revenue Service Web site16 have help- it is, the plan must provide coverage to the ful information about COBRA. child. If the employee is eligible to participate

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2379 COMPETING CLAIMS FOR here is that family law attorneys should make PLAN BENEFITS sure that they follow the employee benefit plan Disputes often arise, i.e., between the current document, file the proper papers with the plan spouse and the ex-spouse or between the ex- administrator and, for a domestic relations spouse and the participant’s kids, as to who is order, make sure it meets the QDRO require- entitled to payment of plan benefits upon the ments. It’s important to note that the court in death of a participant in an ERISA plan. Com- Kennedy did not express any view as to wheth- peting claims may arise when a person other er the decedent’s estate could have brought an than the designated beneficiary asserts a claim action in state or federal court against the ex- to the plan benefits. Such claims asserted under wife to obtain the pension plan benefits after state law or pursuant to a divorce decree or they were distributed to the ex-wife. other state court order frequently raise difficult Under many state statutes, including Okla- ERISA issues, including thorny ERISA preemp- homa,18 a beneficiary designation naming a tion questions. former spouse is automatically deemed revoked upon divorce. The U.S. Supreme Court in Egel- A basic rule in ERISA and the Internal Reve- 19 nue Code is that an employee benefit plan hoff found that the direct application of such must be operated in accordance with the terms laws to ERISA plans is preempted. The court in of the plan document. The U.S. Supreme Court Egelhoff held that ERISA preempts a Washing- ton state statute providing that designation of in its recent Kennedy decision17 adopted the “plan documents rule” in the context of benefi- spouse as beneficiary of nonprobate assets is ciary designation disputes. This rule requires revoked automatically on divorce. The divorced plan administrators to act in accordance with wife of a participant in a pension plan and life the documents and instruments governing a insurance plan, who was still the named bene- plan when there are beneficiary designation ficiary at time of participant’s death, was held disputes. In Kennedy, the court held that, upon to be entitled to plan proceeds against a claim the death of a participant in a pension plan, the by the participant’s children. The court said plan administrator properly paid benefits to that the state statute has an “impermissible the participant’s ex-wife who was designated connection” with ERISA plans in that it binds as his beneficiary, but who had many years ERISA plan administrators to a particular before waived her right to benefits in a divorce choice of rules for determining beneficiary sta- decree. The participant’s daughter, as executrix tus, and it interferes with nationally uniform of his estate, filed a claim for her deceased benefit plan administration. The court held father’s pension plan benefits. The court said that, in the absence of a valid waiver by an ex- that the plan administrator was not required to spouse, the designated beneficiary in the plan’s recognize the ex-wife’s waiver because the records should be the proper beneficiary even administrator was required under ERISA to if a state law would require a different result. pay benefits to the participant’s designated Of course, after the court’s 2009 Kennedy deci- beneficiary in accordance with the documents sion, employee benefit plans are generally only and instruments governing the pension plan. required to recognize those waivers that are The ex-wife’s waiver in the divorce decree was permitted by and made in the manner required determined not to be a QDRO. A QDRO by by the employee benefit plan documents. But definition requires that it create or recognize it’s important to note that the court in Kennedy the existence of an alternate payee’s right to, or expressly left open any questions about a assignment to an alternate payee of the right to, waiver’s effect in circumstances in which it is receive benefits payable under a plan. consistent with the benefit plan documents. DOMESTIC PARTNER BENEFITS The Kennedy decision gives ERISA plan administrators more certainty in following Domestic partner benefits is a rapidly devel- plan participant directions on death benefits oping area involving issues of both federal and regardless of conflicting divorce decrees or state law. Employers may, but are not required state laws. Family law practitioners should be to, extend ERISA benefit plan coverage to aware that, as a result of the Kennedy decision, unmarried same-sex and opposite-sex domes- employee benefit plans may ignore waivers tic partners of eligible employees. There are that are not permitted by the employee benefit some difficult income tax issues, beyond the plan document and are not made in the man- scope of this article, relating to an individual’s ner required by the plan document. The lesson eligibility for domestic partner benefits. Simply

2380 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 being eligible for domestic partner benefits CONCLUSION under an employer’s benefit plans does not A myriad of state statutes, procedural and determine the tax treatment. A summary of substantive rules, conflicting case law and current domestic partner benefits issues (updat- various competing claims, interests and emo- ed February 2009) is available from The tions come into play in the family law arena. In Employee Benefit Research Institute.20 addition, there is an astounding level of com- The definition of “spouse” for most ERISA plexity in the laws and regulations governing and Internal Revenue Code purposes is deter- employee benefit plans. In spite of the often mined by state and federal laws other than complicated relationship between family law ERISA. An individual is generally considered and ERISA, it appears that, whether we like it to be an employee’s spouse if recognized as a or not, family law attorneys are going to have legal spouse under applicable state law. An to deal with employee benefits and ERISA important exception to the application of state issues, and benefits attorneys are going to have marriage laws is the federal of Mar- to deal with family law matters. riage Act (DOMA).21 DOMA provides that in determining the meaning of any federal law, 1. Employee Retirement Income Security Act of 1974 (ERISA), P.L. 93-406. including ERISA, the word “marriage” means 2. ERISA §3(1). only a legal union between one man and one 3. ERISA §206(d); Internal Revenue Code of 1986 (IRC) §414(p). 4. ERISA §206(d)(3)(B)(i); IRC §414(p)(1)(A). as husband and wife, and the word 5. ERISA §206(d)(3)(B)(ii); IRC §414(p)(1)(B). “spouse” refers only to a person of the oppo- 6. ERISA §§206(d)(3)(D)(i)-(iii), 206(d)(3)(E)(i)(III); IRC §§414(p) (3)(A)-(C), 414(p)(4)(A)(iii). site sex who is a husband or a wife. Therefore, 7. Using QDROs to Collect Child-Support Payments, Schnuelle same-sex domestic partners do not meet the and Dufour, Washington State Bar News, May 2009. 8. Id. DOMA definition of “spouse.” DOMA pro- 9. www.dol.gov/ebsa/faqs/faq_qdro.html. vides that states have the right to refuse to 10. ERISA §609(a). recognize marriages between same-sex couples 11. ERISA §609(a)(3). 12. www.dol.gov/ebsa/publications/qmcso.html performed in other states. 13. Consolidated Omnibus Budget Reconciliation Act of 1985; IRC §4980B and ERISA §602. Even if a domestic partner does not qualify 14. Treas. Reg. §54.4980B-4, Q/A-1(c). as a spouse, a domestic partner, regardless of 15. www.dol.gov 16. www.irs.gov gender, may qualify as a dependent under a 17. Kennedy v. Plan Administrators for DuPont Savings & Investment benefit plan if he or she satisfies the federal tax Plan, 129 S. Ct. 865 (2009). 22 18. 15 O. S. (2001) §178. definition of “dependent.” Generally, the fed- 19. Egelhoff v. Egelhoff, 532 U.S. 141 (2001). eral tax definition of dependent includes an 20. www.ebri.org/pdf/publications/facts/0209fact.pdf. 21. 1 U.S.C. §7. individual (other than a spouse) who has the 22. IRC §152(d)(2). same principal place of abode as the taxpayer, 23. IRC §21(e)(1). is a member of the taxpayer’s household and receives more than half of his or her support About The Author from the taxpayer. However, an individual is not a member of the taxpayer’s household and Kenni B. Merritt, an attorney thus cannot be a dependent under the tax code with Crowe & Dunlevy, resides in if at any time during the year the relationship Bellingham, Wash., and telecom- between such individual and the taxpayer is in mutes to her office in Oklahoma 23 violation of local law. In addition to consider- City. She focuses her practice ing the federal tax definition of “dependent,” it primarily on employee benefits is also important to look to the benefit plan law and ERISA, representing documents to determine the definition of employers in the design, imple- “dependent” for benefit plan purposes. mentation and administration of all types of employee benefit plans and deferred compensation arrangements. She is a graduate of the OU College of Law and is admitted to practice in Oklahoma and in Washington state.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2381 2382 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 FAMILY LAW If Your Client Records, Do You Get to Press Play? Wiretapping in Family Law By John E. Barbush

ttorneys engaging in the practice of family law must famil- iarize themselves with the law concerning the recording, Ause and admissibility of phone conversations. Whether it is a client asking whether he or she should record a soon to be ex-spouse’s phone calls, a client who brings you a tape recording of their ex-spouse admitting drug use, determining how to use a 911 phone call in a VPO hearing, advising a client that phone calls may be tape recorded and to act accordingly, or being confronted in discovery or a hearing with a tape recording of your client – the area of family law frequently involves wiretapping. Indeed, prac- titioners unfamiliar with some of the basics of wiretapping law not only do their clients a disservice, but also expose them to potential criminal and economic liability.

Every attorney should have at least a pass- protections citizens of the United States must ing familiarity with the Oklahoma Security of be afforded while allowing states the freedom Communications Act1 (SCA). The SCA makes to enact laws which are not inconsistent and it a felony for any person to willfully intercept provide even more protection for its citizens. or procure any other person to intercept any The Federal Wiretap Act also specifically pro- wire, oral or electronic communication unless vides for a private cause of action.4 specifically allowed under §176.3. Thus, the In Oklahoma, any party to a conversation can ability to properly advise a client on when it is tape record it as long as it is not being done to appropriate to tape record telephone conver- commit a criminal act. No permission, disclo- sations is imperative. The SCA also provides sure or consent is necessary from the other that no portion of an illegally intercepted com- party or parties to the conversation. “It is not munication shall be used as evidence in any unlawful pursuant to the Security of Commu- trial, hearing or other proceeding before any nications Act for:…a person not acting under court, grand , department, officer, agency color of law to intercept a wire, oral or elec- or regulatory body.2 tronic communication when such person is a The SCA is Oklahoma’s response to the Fed- party to the communication or when one of the eral Wiretap Act3 which sets forth the minimum parties to the communication has given prior

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2383 consent to such interception unless the com- either federal or state law based upon New- munication is intercepted for the purpose of comb’s ruling on 18 U.S.C. §2510(5)(a)(I) and the committing any criminal act.”5 same definition found at 13 O.S. §176.2(8). Such was the holding in Wright v. Stanley9 when the However, recording telephone conversations Mississippi court compared the federal act to to which one is not a party can have grave con- its own SCA. sequences. In Heggy v. Heggy,6 the 10th Circuit, in an appeal from the With the exception of Western District of Okla- Michigan,10 every state homa, held Title III that has addressed the applies to inter-spousal issue of parental tape wiretapping within the ...more troubling questions recording of minor chil- marital home. In Heggy, dren’s telephone conver- the ex-spouse was award- arise when a family lawyer is sations has allowed the ed compensatory and practice either under the punitive damages as well faced with a tape-recorded finding of an “extension as attorney fees in a case telephone exemption,” against her ex-husband conversation involving a minor the adoption of the theo- who had routinely tape ry of vicarious consent, recorded her telephone child recorded by a parent or a combination of both. conversations for six A lawyer must be famil- months prior to their who was not a party to iar with the distinction divorce without consent. between these justifica- The court specifically the conversation. tions as the theory of held that misunderstand- vicarious consent impos- ing the law was no es requirements which defense. As a result of Heggy, a family law prac- are not applicable when an “extension tele- titioner must practice under the assumption phone exemption” is adopted. that wiretapping laws apply to domestic rela- tions cases in Oklahoma. THEORY OF VICARIOUS CONSENT Most attorneys are familiar with the law on The theory of vicarious consent is essentially wiretapping when it comes to the recording of the recognition of the fact that a parent is legal- conversations to which one is a participant. ly obligated to protect a child from harm and to The more troubling questions arise when a provide for their best interests. Further, since a family lawyer is faced with a tape-recorded minor can only contract or give consent through conversation involving a minor child recorded a parent, the same parent may consent on the by a parent who was not a party to the conver- minor’s behalf — with or without their knowl- edge — to the taping of a phone conversation sation. Because there are no Oklahoma cases 11 specifically addressing this scenario, there is involving the minor. Thompson v. Dulaney little direct guidance on the or admis- adopted vicarious consent giving the parent sibility of the recording in such a situation. the right to consent to tape recording of a minor’s telephone conversations, even with EXTENSION TELEPHONE EXEMPTION the other parent, based upon Newcomb and Utah law. Thompson held that the vicarious con- In Newcomb v. Ingle,7 the 10th Circuit, in an sent doctrine is necessary for a parent to pro- appeal from the Northern District of Okla- tect a child from abuse and harassment. How- homa, held a parent’s taping of telephone con- ever, Thompson also concluded that a parent versations of a minor child and ex-spouse was could only intercept such communications not a violation of Title III due to the “extension when a good faith basis existed to justify telephone exemption” contained in 18 U.S.C. invoking the consent. Thus, a parent who lives §2510(5)(a)(I). Although there are no Oklahoma in a jurisdiction which has adopted the vicari- decisions adopting the extension telephone ous consent doctrine would have to be able to exemption, Oklahoma’s SCA contains the exact show a court a good faith basis that existed same definition relied upon by Newcomb.8 Con- justifying the need to tape record the minor’s sequently, a very strong argument can be made telephone conversation. Without such a “good that a parent is entitled to tape a minor child’s faith basis” the interception would be deemed telephone conversations without violating a violation, subjecting the parent to potential

2384 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 criminal and economic liability as well as Newcomb and the definition of 13 O.S. §176.2(8) result in the court suppressing the recorded setting forth the extension phone exemption conversation from being used in any legal argument. However, given the fact that the proceeding. issue has not been formally addressed by an Oklahoma decision, a prudent lawyer will The majority of jurisdictions have adopted incorporate the “belt and suspenders” approach the vicarious consent doctrine and held that and also argue that the parent was able to give tape recordings of children’s conversations by vicarious consent to record the conversation a parent are admissible evidence. See Silas v. 12 and be prepared to articulate the client’s “good Silas (father could use an extension telephone faith basis” for deeming it necessary to inter- to record the child’s conversations with mother cept the telephone call. Obviously, simply while child was under his custody under fed- showing that a telephone conversation was not eral act and father was able to give vicarious improperly recorded and therefore should not consent on behalf of child as he had a good be suppressed is only the first step to utilizing faith basis to believe the minor child was being the recording before a court. As set forth in the abused, threatened, or intimidated by mother, Oklahoma Evidence Code, issues concerning avoiding a violation of state law); Pollock v. Pol- 13 relevance, authenticity, and unfair prejudice lock (as long as the guardian has a good faith, must also be considered, as was addressed in objectively reasonable basis for believing it James v. State Farm Mut. Auto. Ins. Co.,20 to deter- necessary and in the best interest of the child to mine admissibility of the taped conversation. consent on behalf of the minor child to the tap- ing of the telephone conversations, the guard- ADVISING THE CLIENT ian may vicariously consent on behalf of the 14 An Oklahoma attorney must strongly con- child to the recording); Cacciarelli v. Boniface sider whether to advise a client to tape record (tapes admissible on the theory of vicarious their child’s telephone conversations with the consent as the content of the tapes substantiate other parent as a matter of course. The taping concern behind parent taping conversations of 15 of conversations by a parent between the other child with other parent); Allen v. Mancini (trial parent and the minor child can and has been court did not err in admitting tape recording viewed with great skepticism by the courts. made by father of telephone conversations Therefore, it should only be done when a well between minor and mother because father had articulated reason supports it. In Leisure v. the authority to consent on behalf of the child); 21 16 17 18 Wheeler, the court stated, “[t]he trial court, if it Apter v. Ross; Smith v. Smith; G.J.G. v. L.K.A. finds the recording was not done for the well (mother’s recorded telephone conversations being of the child but instead as a way to inter- between father and daughter wherein father fere with the other parent’s relationship with encouraged child to lie about mother were the child, may consider this as a factor in mod- admissible because court adopted vicarious ifying custody.” In Apter v. Ross,22 the court consent having found the majority of federal stated, “[w]e caution that this type of unilateral and state courts whom had addressed the issue action taken by a parent with joint legal had so held). custody, while legally authorized in certain Vicarious consent has even been adopted in situations, is anathematic to a successful joint criminal proceedings. In State of Iowa v. Spen- custody arrangement and can be evidence that cer,19 it was held that recordings made of a is not in the best interests of the minor’s conversations with defendant by father child.” This logical holding is already incor– without consent should not be suppressed in a porated into Oklahoma law at 43 O.S. criminal trial if father could show a good faith, §112(C)(3)(a). objectively reasonable basis for believing it Knowing what to do with a taped conversa- necessary and in the best interest of child to tion of a mother admitting to her ex-spouse record the conversations, relying upon vicari- that “she only uses meth while at work (as a ous consent. stripper)”, or a parent advising a child to lie to As a result, an attorney who seeks to use a a guardian ad litem is an unfortunate require- recorded telephone conversation made by a ment in the practice of family law. One can parent of a minor child would be wise to argue quickly turn a difficult case from a “she said/ that such a recording is not a violation of either he said” to a “you said what!” from the court. federal or state law based upon the holding of As such, lawyers23 who practice family law

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2385 should familiarize themselves with the basics 21. 828 N.E. 2d 409, 416. 22. 781 N.E. 2d 744, fn.2. of wiretapping. 23. The author would like to acknowledge the editorial assistance of attorneys Amy Pierce and Don Strong. 1. 13 O.S. §176.1, et al. 2. 13 O.S. §176.6. 3. 18 U.S.C. §2519, Title III of Omnibus Control and Safe Streets Act of 1968. About The Author 4. 18 U.S.C. §2520. 5. 13 O.S. §176.4(5). John E. Barbush practices in

6. 944 F.2d 1537, 1991 U.S. App. LEXIS 24388. 7. 944 F.2d 1534, 1991 U.S. App. LEXIS 19878. Oklahoma City. His practice is 8. See 13 O.S. §176.2(8). largely comprised of family law, 9. 700 So. 2d 274, 1997 Miss. LEXIS 254. 10. Williams v. Williams, 229 Mich. App. 318, 581 N.W. 2d 777, 1998 , nursing home WL 180849 (rejected vicarious consent doctrine, holding that the lan- litigation and securities arbitra- guage of Title III gave no indication that Congress intended to create any such exemption). tion. He is a 1999 graduate of the 11. See Thompson v. Dulaney, 838 F. Supp. 1535, 1993 U.S. Dist. Oklahoma City University Law LEXIS 17364. 12. 680 So. 2d 368, 1996 Ala. Civ. App. LEXIS 533. School. He serves on the execu- 13. 154 F.3d 601, 1998 U.S. App. LEXIS 21259. tive committee of the Oklahoma 14. 325 N.J. Super. 133, 737 A.2d 1170, 1999 N.J. Super. Lexis 308. 15. 170 S.W. 3d 167, 2005 Tex. App. LEXIS 5216. County Bar Family Law Section 16. 781 N.E. 2d 744, 2003 Ind. App. LEXIS 32. and is an Oklahoma Lawyer for Children volunteer. He 17. 923 So. 2d 732, La. App. LEXIS 2116. resides in Edmond. 18. 2006 Del. Fam. Ct. LEXIS 92. 19. 737 N.W.2d 124, 2007 Iowa Sup. LEXIS 98. 20. 1991 OK 37.

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2386 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 SPECIAL  ANNOUNCEMENT  TO  ALL  ELS  MEMBERS   AND  THOSE  INTERESTED  IN  JOINING  ELS 

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Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2387 2388 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 FAMILY LAW The Division of Military Retirement Benefits in Oklahoma Divorce Proceedings By A. Kyle Swisher he Uniformed Services Former Spouse’s Protection Act, rec- ognizes the right of state courts to distribute disposable Tmilitary retired pay to a spouse or former spouse and pro- vides, through a myriad of federal regulations, methods for implementing its orders through the military’s accountant i.e., The Defense Finance and Accounting Service (DFAS).1 However, while relatively straight forward in theory, applying current Oklahoma Statutes and , in combination with fed- eral regulations, in order to effectively divide military retirement pay, is anything but simple. THE VERY BASICS OF DIVIDING 2) The state court must have had jurisdic- MILITARY RETIREMENT PAY tion over the member by reason of 1) resi- dence (other than just because military A Domestic Relations Order (DRO) is not assignment), 2) the member’s domicile required to divide military retired pay as long as located in the jurisdiction, or 3) the mem- a former spouse’s award is clearly set forth in the ber’s consent to jurisdiction.7 decree or applicable court order.2 Orders enforce- able under the act include final decrees of The maximum that can be paid to a former divorce, dissolution, annulment, etc.3 The perti- spouse under the act is 50 percent of a mem- nent court order must also provide for the pay- ber’s disposable retired pay.8 ment of child support, alimony or retired pay as property to a spouse/former spouse.4 The court In order to apply for payments under the act, order, when dealing with retired pay as a prop- a completed application (DFAS Form 2293) erty award, must provide for the payment of an signed by the former spouse, together with a amount expressed in dollars or as a percentage certified copy of the divorce decree, dated of disposable retired pay.5 DFAS is the agency within the last 90 days, should be served on the which processes the awards. The decree must Defense Finance and Accounting Service, contain specific information such as: Cleveland Center, Code L, P.O. Box 998002, Cleveland, OH 44199-8002. Assuming the 1) Statement that the member and former divorce decree is drafted properly, the only spouse have been married to each other for documents you should mail DFAS is the Form at least 10 years, during which the member 2293 and a certified copy of the divorce decree. performed at least 10 years of creditable However, divorce decrees normally do not con- military service i.e., “the 10/10 rule.”6 tain the requisite information required by the act and a separate DRO is required.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2389 Be forewarned, the following award will not line, the non-military spouse will not receive be processed by DFAS: “Ex-spouse is awarded SBP coverage upon the death of the military 50 percent of employee’s retired pay which is member and he or she will receive no further accrued as of the date of divorce.” This is a cus- retirement benefits of any kind. It should be tomary way for practitioners to divide a benefit noted that only one spouse can receive SBP cov- plan in a decree. Military benefits are paid on a erage.11 In other words, it is not possible to monthly basis and it is not a fund that can be divide SBP coverage between current and future valued or divided as of some point in time. spouses, etc. Also, unless the military retiree Thus, the practitioner must express the award has elected coverage at retirement, former in dollars or as a percentage of disposable spouse benefits cannot be elected ( i.e., renewed) retired pay. Your alternative is to obtain the ser- as part of a divorce proceeding.12 vices of a C.P.A. and/or J.D. who is familiar As to which party pays the costs for provid- with military plans in order to obtain an account ing surviving spouse benefits, the military value as of the date of divorce, date of separa- simply reduces the SBP coverage premium tion, etc. from the gross pay of the retiree, resulting in This is not to say that DFAS will not accept a “disposable retired pay,” which is the only formula for determining the former spouse’s retired pay figure the military will divide.13 In benefits. With regard to an award expressed as other words, the military will not honor an a formula, the only number supplied by DFAS order that attempts to attribute the entire SBP will be the number of years of creditable ser- premium to the former spouse, which often vice once the member retires. All of the employ- causes problems. ee’s information must be contained in a court- ordered formula. With regard to a hypothetical Another rule that must be observed is what is formula for payment of a retired pay amount, known as the “10/10 rule.” In application, said the award must be based on at least 15 years of rule means the parties must have been married creditable service, and the only information to each other for at least 10 years during which DFAS will supply is the date of retirement, or time the member performed at least 10 years of creditable military service.14 If the parties were the total years of service.9 Information, such as married less than 10 years and/or 10 years of the member’s hypothetical rank or years of service was not performed, your only option is credible service at hypothetical retirement, to order the military member to pay the non- must be contained in the court order. military member her share of the retirement A full discussion of even the basic principals out of his own pocket each month. Obviously, behind dividing military retirement benefits this situation should be avoided, and if addi- could be the subject of numerous lengthy arti- tional property is available to award to the cles and would exceed the scope of this paper. non-military spouse in lieu of the retirement However, for more information, forms, etc. on benefits, this would be a preferable option. DFAS procedures and, in particular, the “Divid- ing Military Retired Pay” publication, go to Remarriage of a non-military spouse before www.DFAS.mil. age 55 forfeits his or her eligibility to SBP (not his/her share of the normal monthly retire- PITFALLS ASSOCIATED WITH THE ment benefits).15 Furthermore, eligibility of a DIVISION OF MILITARY RETIREMENT non-military spouse to obtain medical cover- There are numerous areas in which the prac- age under CHAMPUS/Tricare will be forfeited titioner should be wary when attempting to if the non-military spouse remarries before age divide military retirement benefits. This section 55. Although health care benefits are not court will attempt to alert you to several of those awarded, they are “applied for” by the non- areas which are commonly problematic. military spouse. Generally speaking, military health care benefits are available to the non- If Survivor Benefit Plan (SBP) coverage is military spouse as long as the member served ordered in favor of the non-military spouse at least 20 years and he was married to the non- (surviving spouse benefits in the military set- military spouse for 20 years while creditable ting), an election must be made, on the appli- service was performed.16 If you are represent- cable DFAS form, within one year from the date ing the non-military spouse, and the marriage of the court order or agreement that requires is close to 20 years in duration, you should the military retiree to provide the former spouse consider waiting to finalize the divorce until SBP coverage.10 If you miss the one year dead- the 20 years is reached, if possible.

2390 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 In the case of a disabled military retiree, it ity to order indemnification on behalf of the may be possible for said retiree to classify part former spouse in the event the member elects of his military retired pay as a disability/VA disability. Otherwise, your client’s benefits benefit. If this occurs, it is very possible that the could be severely reduced, or eliminated alto- former spouse’s award will be reduced. This is gether, if the member receives a high enough an area which has been the subject of numer- disability rating. ous Oklahoma appellate decisions over the last RECENT OKLAHOMA CASE LAW AND few years. Division of military retirement is STATUTORY AMENDMENTS based on “disposable retired pay.” Essentially, disposable retired pay is gross military retired In Hayes v. Hayes,20 the parties were divorced pay, less the SBP premium and amounts Dec. 12, 2000, and wife was awarded 19.2 per- reduced for disability/VA pay.17 Thus, when a cent of husband’s military retirement pay. Hus- normal military retirement benefit is reduced band retired from the military in 2004 and due to the service member’s receipt of disabil- began receiving VA disability retirement pay ity pay, his disposable retired pay is reduced the same year. Pursuant to the VA’s determina- and the former spouse’s share is normally low- tion, husband was rated 80 percent disabled, ered proportionately. consequently drastically reducing wife’s share of husband’s military retirement benefits. Argu- Accordingly, if you represent the non-mili- ing that husband’s unilateral act of converting tary spouse, it is advisable to attempt to include his retirement benefits to disability pay consti- an indemnification provision in the decree tuted an impermissible modification or inva- indicating that if the military member does in sion of the trial court’s property division order, fact receive disability pay, the military member wife filed a motion to enforce the decree of will be required to pay the former spouse the divorce. The Hayes trial court denied wife’s amount his or her retirement award was motion in finding that it lacked the authority to reduced. In Nelson v. Nelson,18 the Court of Civil either prevent husband from converting his Appeals held: retirement benefits to disability or require hus- The court did not abuse its discretion in band to pay wife a portion of same.21 dividing husband’s military retirement pay The Hayes court, citing Mansell v. Mansell,22 by including indemnification provision in noted: “State courts have been granted the a divorce decree that required husband to authority to treat disposable retired pay as make required payment to wife, or make community property; they have not been grant- up difference in amount of payment to ed the authority to treat total retired pay wife, if husband reduced his military retire- [including disability pay] as community proper- ment pay by electing to increase his disabil- ty.” However, the Hayes court at ¶¶ 16-17 held ity benefits; federal statute dealing with as follows: direct pay from appropriate military finance center did not forbid payments enforced by The Trial Court was correct in holding that it other means, including made directly by could not require Husband to pay wife a individual retired service member, and portion of his federally protected disability indemnification provision did not attempt benefits. However, that does not mean the to divide husband’s current disability ben- Trial Court is precluded from granting wife efits, nor prohibit husband from receiving any relief. Despite his 80% disability rating, future disability benefits, but only prevent- Husband continued to work full-time after ed husband from unilaterally reducing his retirement from the Army, a fact the Trial wife’s property award. Court may consider along with all other aspects of Husband’s financial condition. It is advantageous for a military member to receive a disability benefit in lieu of normal The Trial Court’s decree of divorce does not retirement primarily due to the fact that dis- require Husband’s payments to wife to ability awards are not subject to income tax come from any particular source. Rather, and, in the divorce setting, it reduces his dis- the decree provides that wife shall receive posable retired pay.19 A military retiree has an amount equal to a pro-rata share of every incentive to reclassify a portion of his Husband’s eventual military retirement. benefits as disability. Accordingly, you should The decree memorializes Husband’s legal attempt to include the appropriate language in obligation, which Husband may satisfy your decree so that the court will have the abil- from whatever source of funds he chooses.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2391 Our holding today, therefore, does not con- The Court of Civil Appeals held that the trial flict with Oklahoma’s policy against modi- court improperly amended the agreed prop- fication of a final property division. erty award by reducing the 50 percent to a In In Re The Marriage of Guy,23 husband “proportionalized” amount. It also found that served in the military for over 20 years. Five “The trial court abused its discretion in failing months prior to his retirement, husband to find Husband’s conversion of a portion of applied for disability compensation from the his retirement benefits to disability benefits VA and was granted an 80 percent disability impermissibly modified the consent decree by rating. The parties subsequently initiated a unilaterally reducing her award of one-half divorce proceeding. The trial court awarded Defendant’s retirement pay from the military.” wife an additional amount of money to make It should be noted that the Hodge decree con- up for her share of the military retirement that tained no language requiring indemnification was reduced due to husband’s receipt of dis- if the husband elected to receive disability. ability pay. Furthermore, wife was awarded Instead, the court relied on the fact that wife SBP benefits and husband was ordered to pay was simply awarded 50 percent of the military for same. retirement and husband impermissibly reduced same, thus violating the agreed prop- The appellate court recognized that, per fed- erty division. eral law, a state trial court cannot divide VA pay, however, a trial court can compensate a Title 43 O.S. §134 was amended by Oklahoma former spouse for the diminution of a marital Senate Bill 2194 and became effective July 1, asset. In this case, the court found that it was 2009. Subsections E and F are relevant here and not necessary to award wife additional assets state as follows (new provisions underlined): to make up for what she lost due to husband’s E. Pursuant to the federal Uniformed Ser- receipt of VA because she otherwise received vices Former Spouses’ Protection Act, 10 an equitable share of marital property. The U.S.C., Section 1408, a court may treat dis- court also found that the trial court abused its posable retired or retainer pay payable to a discretion when it ordered husband to pay the military member either as property solely premium associated with providing wife SBP of the member or as property of the mem- benefits, likening it to a support alimony award ber and the spouse of the member. If a state of an indefinite amount and term. court determines that the disposable retired In Hodge v. Hodge,24 wife was awarded “one- or retainer pay of a military member is half Defendant’s [husband’s] retirement pay marital property, the court shall award an from the military” in the parties’ decree. Subse- amount consistent with the rank, pay grade, quent to the decree, husband retired from the and time of service of the member at the military and applied for and received an award time of separation. of VA disability. A DRO was not entered at the F. The provisions of subsection D of this time of the decree and the parties subsequently section shall have retrospective and pro- turned to the court for guidance and entry of spective application with regards to modi- same after at least two failed attempts to pres- fications for the purpose of obtaining sup- ent DFAS with an acceptable order. At a hear- port or payments pertaining to a division ing regarding the DRO, the court ruled that the of property on divorce decrees which wife’s award should be reduced from the become final after June 26, 1981. There shall agreed 50 percent of the entire military retire- be a two-year statute of limitations, begin- ment pay to a “proportionalized” amount ning on the date of the final divorce decree, based on the length of marriage (husband per- for a party to apply for division of dispos- formed several years of service before and after able retired or retainer pay. the marriage). Oklahoma does not maintain records regard- Wife subsequently argued, on motion for ing the bill authors’ intentions behind new law, reconsideration, that the court’s modification therefore, interpretations of the legislation will of the agreed retirement award was impermis- occur by way of the court decisions which fol- sible and that the husband also impermissibly low. The meaning of “…the court shall award an and unilaterally modified the property award amount consistent with the rank, pay grade, and due to his receipt of disability. The husband’s time of service of the member at the time of receipt of disability reduced his disposable separation” will surely be the subject of litiga- retired pay dollar for dollar, thus reducing the tion, as will the new language of subsection F wife’s award accordingly. regarding the two-year statute of limitations.

2392 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 Pursuant to federal regulations, DFAS will ing the marriage; the “nonconformance to only accept certain award language when divid- military lifestyle of the former spouse”; any ing military retirement benefits whether it be by disability of the military member (and that percentage, formula or fraction. Where the court military disability income cannot be offset with is forced to divide the benefit by DRO, does the any of the service member’s other assets), etc. new provision require the court to actually place The rationale behind the new legislation a dollar value on the monthly benefit? Do frac- apparently stems from the belief that military tion awards based on length of marriage and retirement benefits are unique due to the ser- total years of service at an eventual retirement vice member’s potential to be recalled out of date remain acceptable? Or, are the bill authors retirement into active duty at any time.25 How- only attempting to remind divorce court judges ever, a law which, due to a party’s remarriage, and attorneys that in a disputed case, the court takes away a property right earned jointly by only has jurisdiction to divide the portion of the the former spouses during marriage is certain benefits accrued during marriage? If so, does to be challenged. While the Uniformed Services this mean that all methods for dividing military Former Spouse’s Protection Act may give states benefits which attempt to follow the law are the authority to pass laws consistent with said acceptable e.g., the aforementioned formulas? It act, prescribing an “application” statute of should also be noted that the terms “consistent limitations period, dictating methods for divid- with” and “separation” are not further defined ing benefits and taking away property rights in the new passage. seems to push the envelope of what was As to the two-year statute of limitations, intended. what is meant by the word “apply”? For exam- 1. 10 U.S.C. §1408. ple, if a former spouse of a military member 2. 10 U.S.C. §1408(a)(2). 3. 10 U.S.C. §1408(a)(2). mails a copy of her divorce decree to DFAS a 4. 10 U.S.C. §1408(a)(2)(B). week short of two years after her decree is 5. 10 U.S.C. §1408(a)(2)(C). entered, has she effectively “applied” for the 6. 10 U.S.C. §1408(d)(2). 7. 10 U.S.C. §1408(c)(4). benefit, even though she finds out a month 8. 10 U.S.C. §1408 (e)(1). later that the decree is not sufficient and that a 9. Fed. Reg. 17507, 17508 (1995). 10. 10 U.S.C. §1448(b)(3)(A)(iii). DRO is required? What if trial counsel fails to 11. U.S.C. §1448(b)(2)(C). ensure a DRO dividing military retirement is 12. U.S.C. §1448(b)(3)(C). 13. U.S.C. §1408(a)(4). entered and accepted by DFAS prior to closing 14. 10 U.S.C. §1408(d)(2). their respective files? Under the new provision, 15. 10 U.S.C. §1450(b)(2). a client who assumes his or her case was prop- 16. 10 U.S.C. §1062. 17. 10 U.S.C. §1408(a)(4). erly handled will unknowingly be punished 18. 2003 OK CIV APP 105, 83 P.3d 889. years later when the service member retires 19. 10 U.S.C. §1408(a)(4). 20. 2007 OK CIV APP 58, 164 P.3d 1128. and the benefit is not divided. Can the former 21. Hayes at ¶ 6. spouse come back after the service member 22. 490 U.S. 581, 590, 109 S.Ct. 2023, 2029 (1989). 23. 2007 OK CIV APP 86, 169 P.3d 1218. personally for direct payments if her applica- 24. 2008 OK CIV APP 96; 197 P.3d 511. tion is rejected and/or she misses the “applica- 25. 10 USC §688. tion” period? Pursuant to new legislation introduced this year (Oklahoma House Bill 1053, amending 43 O.S. § 134), the Oklahoma Legislature is inter- ested in taking away the previously awarded About The Author monthly retirement benefits of a former spouse A. Kyle Swisher is a partner

who cohabitates with a member of the opposite sex and/or remarries, regardless of the age or with the law firm of Rubenstein circumstances of the former spouse. The pro- McCormick & Pitts PLLC in posed law would also require the trial courts, Edmond. Mr. Swisher received at the time of determining whether the military his J.D. from OU in 1997. He is retirement benefits are separate or marital a member of the OBA Taxation property, to consider, among other things, the Law and OBA Estate Planning, following: The ability of the former spouse to Probate and Trust Sections. His provide for herself; the service member’s length practice is focused primarily in the areas of QDROs and related of services during the marriage and pay grade; retirement division issues in the education the former spouse received dur- divorce cases, estate planning and business law.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2393 2394 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 FAMILY LAW

‘The Times They Are a-Changin’ When and How to Modify Child Support By Donelle H. Ratheal

his article is a brief overview of child support modification law since the enactment of the child support guidelines in TOklahoma in 1987, and the practical aspects of preparing a modification case on a client’s behalf. When the local economy fluctuates, the practitioner is faced with requests from clients to modify child support, based upon significant changes in income and employment. The scope of this article is limited to post- decree modifications of child support in a private domestic rela- tions case, which includes marriage dissolution and paternity matters.

Introduction The trial court sustained the father’s to the mother’s request to increase child sup- In 1987, the Oklahoma Legislature adopted the port, citing to case law decided before the enact- child support guidelines, pursuant to federal 1 ment of the statute. The cited case held that the mandate. As a result of the child support guide- sole factor of an increase in one parent’s earning lines, the parents’ respective incomes were used capacity, without additional relevant evidence to compute child support, using a “shared income” (i.e., the needs of the child), was not sufficient to model. Prior to the enactment of the statute, the justify an increase in child support.4 trial court’s focus was the actual needs of the minor child, with the general directive that any The appellate court reversed the trial court. It award be in the child’s best interests. found that the new statute shifted the trial court’s focus from the child’s needs to the par- Basis for Increase or Decrease ents’ respective incomes.5 It held that a substan- tial increase in the income of one or both parents Shortly after the enactment of the statute, the constituted a sufficient material change of cir- appellate court reviewed a case involving a cumstances for a modification of child support.6 request to modify child support, using the The appellate court has since reiterated that a guidelines as its context.2 The parents were “substantial” increase or decrease in the income divorced in 1983. In 1989, the mother filed a of only one of the parents will satisfy the “mate- motion to modify child support, citing to several rial change” requirement for child support to be changes in circumstances. The mother’s request modified.7 to increase child support was based upon a sub- stantial change in the father’s income.3 As early as 1963, a parent’s decreased earning capacity justified a lowering of child support.8

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2395 After the guidelines were enacted, the appel- ing of the motion.17 The only exception is when late court held that when a parent’s income the trial court makes a specific finding that the decreases significantly, a downward modifica- change in circumstances did not occur at the tion of child support is justified, so long as two time of the filing.18 conditions are met: 1) the requesting parent The Threshold to Modify must provide evidence of the decreased income- Child Support earning capacity to meet the necessary burden of proof; and, 2) the resulting child support A change of 12 percent in one parent’s income amount must be fair and equitable under the and 20 percent in the other parent’s income has circumstances.9 qualified as a “material” change in circum- 19 The recent amendment to the child support stances to justify a change in child support. guidelines provides a more specific definition Factors such as a change in employment or a for the basis of a modification of child support. change in financial status will qualify as a It is a: “material” change for a modification of child support.20 material change in circumstances which includes, but is not limited to, an increase Multiple Child Support Orders or decrease in the needs of the child, an Sometimes a payor parent has more than one increase or decrease in the income of the child support order under which he or she is parents, changes in actual annualized child obligated. The first child support order cannot care expenses, changes in the cost of medi- cal or dental insurance, or when one of the children in the child support order reaches the age of majority or otherwise ceases to be entitled to support pursuant to the sup- port order.10 The specific statute Modification of a Consent Decree or Order gives a parent the right to Many times the parties reach a settlement as to the original marriage dissolution or pater- review the other parent’s nity case, including the issue of child support. Occasionally a litigant will argue that the trial income every year. judge does not have the authority to modify an agreed-upon child support issue.11 The law, however, is clear: the trial court has the authority and discretion to set aside, modi- fy or enforce an agreed-upon amount for child support.12 The appellate court’s reasoning in decisional law is that the trial court is not auto- matically bound by an agreement of the parties as to their property rights, alimony or child support.13 The parties to a consent decree may agree to child support obligations between themselves that exceed those required by law.14 The only limitation to a consent decree or order is that the agreement may not contravene public poli- cy.15 An example of an agreement that contra- venes public policy is when the child’s right to enforce a child support obligation against the parent is compromised.16 Effective Date of the Modification Modification of child support, whether downward or upward, is effective as of the fil-

2396 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 be modified when a subsequent child support case.33 Certified mail is an acceptable method order is entered.21 for service. However, the most effective meth- Modification of Child Support od is by process server. It avoids the problem of in Upper Income Cases improper service, which can then affect the requesting parent’s attorney fee request at the When the increase in one or both parents’ end of the modification case. incomes results in combined income that is more than statutory cap,22 the trial court has the The responding party must provide the discretion to review the needs of the child to requested information within 10 days of his or determine whether additional child support is her receipt of the written request. If the respond- warranted.23 ing party fails to provide the information, and the requesting party subsequently files a modifi- The presumption is that the statutory child cation request which is granted, the trial court is support, as set out in the statutory chart, is suf- required to award a “reasonable” attorney fee.34 ficient.24 The parent seeking the additional child support bears the burden of rebutting the Practical Considerations presumption, and showing the need for the To be most effective, the practitioner should additional support.25 obtain the client’s past three years’ tax returns, If trial court orders additional child support, to determine if the client’s income alone quali- it cannot simply extrapolate an amount by the fies as a “substantial” change to support a same percentage as the cap on the statutory modification of child support. The practitioner chart.26 The trial court must review the specific, should prepare the written request, according actual needs of the child. to the statutory parameters, to obtain the other After determining the additional amount, parent’s income information. the trial court must then apply the respective The practitioner, after reviewing the parents’ parents’ percentages from the child support combined income, can determine whether it guidelines to determine the actual amount due exceeds the statutory cap of $15,000 per month. from the payor parent for the additional sup- If the income exceeds the statutory cap, then 27 port. Otherwise, the child support award the practitioner should ask the client to prepare would result in a transfer of the payor parent’s a proposed budget, with the child’s projected wealth to the payee parent, which is not the needs, as of the current time frame. purpose of child support.28 The child’s projected needs may include a When addressing child support when the percentage of the household expenses, includ- combined income exceeds the chart, the trial ing mortgage or rent, maintenance and court is mandated to consider three factors. repairs, and utilities. Car or transportation They are: 1) the child’s needs; 2) the parents’ expenses, groceries, gifts and vacations should ability to pay; and, 3) the prior standard of liv- 29 also be included, if they are a part of the ing. When requesting an increase in child sup- 35 port, the requesting parent must present the child’s lifestyle. child’s projected needs as of the time of the Conclusion modification request.30 Parties have the right to modify child sup- Knowing When to File port whenever there is a “substantial” increase The Legislature has provided parents with or decrease in the income of one or both par- an inexpensive method to review their respec- ties. The definition of “substantial” is satisfied tive incomes to determine whether a modifica- by a change in one parent’s income of 12 per- tion request should be filed. The specific stat- cent or more, or a resulting change in the base ute gives a parent the right to review the other child support amount of $35 or more. parent’s income every year. The requesting party bears the burden of The requesting parent may request the other proof regarding the “substantial” change, parent’s tax documents for the past tax year, on whether an increase or a decrease. If the modi- or after April 15 of the current year.31 The fication involves a request for child support in request must be in writing, and must be served excess of the statutory cap, the request must be upon the parent in a method that satisfies due supported by evidence of the child’s projected process.32 The request must be filed in the court costs, as of the time of the modification.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2397 All motions to modify child support, wheth- 14. Hodge v. Hodge, 2008 OK CIV APP 96, 197 P.3d 511. 15. Holleyman v. Holleyman, 2003 OK 48, ¶ 8, 78 P.3d 921. er a decrease or increase, will be effective as of 16. Hedges v. Hedges, 2002 OK 92, fn.3, 66 P.3d 364. the date of the filing of the motion to modify. 17. 43 O.S. §118I(A)(3) (Supp. 2009). 18. Id. The simplest method to determine whether to 19. Riedel v. Riedel, 1992 OK CIV APP 166, ¶¶ 10-11, 844 P.2d 184 file a motion to modify child support is by (the resulting change in child support was in the amount of $35 per month). making and filing the written request, in com- 20. Pharaoh, ¶ 8. pliance with the statutory requirements. 21. 43 O.S. §118C(A) (Supp. 2009) (this is commonly referred to as the “first mortgage” theory of child support). The practitioner can assist the client in deter- 22. Id ., §119 (2001) (the current maximum combined income is $15,000 per month). mining whether a motion is appropriate by: 1) 23. Id., §119(B). reviewing the client’s historical income; 2) fil- 24. Id., §118(A) (Supp. 2009). 25. Archer v. Archer, 1991 OK CIV APP 28, ¶ 15, 813 P.2d 1059. ing the statutory request to review the other 26. Smith v. Smith, 2003 OK CIV APP 28, ¶ 15, 67 P.3d 351. parent’s income; and 3) preparing the client’s 27. In Arehart v. Arehart, 2006 OK CIV APP 4, ¶ 8, 128 P.3d 1116, the case to meet the necessary burden of proof, appellate court noted that the trial court application of 4% over the cap amount, divided by the parents’ respective percentages, was a reason- including any request for additional child sup- able computation for the additional support, citing to Smith, supra. port. If the other party fails to comply with the 28. Smith, ¶ 12 (citing to the “three pony rule”; a child does not need three ponies, even if a payor parent can afford to buy them). statutory written request, it will enhance the 29. Kerby v. Kerby, 2002 OK 91, ¶ 7, 60 P.3d 1038 (also known as client’s request for attorney fees if the trial Kerby I). 30. Kerby v. Kerby, 2007 OK 35, ¶ 5, 164 P.3d 1049 (also known as court grants the client’s request to modify child Kerby II). support. 31. 43 O.S. §118.3 (2001). 32. Id. Author’s Note: This article was prepared with 33. Id. 34. Id. assistance from Jamie N. Ortiz, licensed legal 35. In the Smith case, the mother used the percentage of 33% for the intern, and new OBA member. The headline “The child’s allocable share of the household expenses. When there are two or more children at issue, the author has seen a percentage of 50% used Times They Are a-Changin’” is the title song on the as the children’s allocable share of the household expenses. album, with the same name, written by Bob Dylan in 1964. About The Author 1. 45 C.F.R. §302.56(c) (Oct. 1, 1985). 2. McKee v. McKee, 1991 OK CIV APP 116, 820 P.2d 1362. 3. Id., ¶ 2. Donelle Ratheal is the CEO 4. Id., ¶ 3 citing to, Wells v. Wells, 1982 OK 83, ¶ 11, 648 P.2d 1223. 5. McKee, ¶ 8. and lead attorney of Ratheal & 6. Id., ¶ 9. Associates PC. She focuses her 7. Pharaoh v. Pharaoh, 1993 OK CIV APP 181, ¶ 8, 865 P.2d 1279. 8. Miller v. Miller, 1963 OK 167, 383 P.2d 873 (the appellate court practice in family law. Experi- noted the payor parent’s earning capacity had decreased and that the enced in complex domestic prior child support amount had been an agreed-upon amount). relations litigation, she is also a 9. Stephen v. Stephen, 1997 OK 53, ¶ 12, 937 P.2d 92. 10. 43 O.S. §118I(A)(1) (Supp. 2009). family law mediator and is 11. Such issues have included retroactive modifications, prospec- trained in collaborative divorce. tive increases, and payment of child support beyond the child’s majority. Her greatest accomplishment is 12. 43 O.S. §112(A)(3) (2001 & Supp. 2007); Thrash v. Thrash, 1991 having survived motherhood OK 32, fn. 2, 809 P.2d 665. 13. Read v. Read, 2001 OK 87, ¶ 18, 57 P.3d 563; Blount v. Blount, 1967 with humor and flexibility, with an adult son who is OK 74, ¶ 18, 425 P.2d 474 (cited with approval by Holleyman v. Holley- alive and actually likes her! man, 2003 OK 48, 78 P.3d 921, concurring opinion, fn. 18).

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Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2399 2400 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 FAMILY LAW Grandparental Visitation in Oklahoma: An Overview By Allison A. Hart

t one time or another, those of us practicing law have had to say, “I’m sorry, under the Oklahoma statute you are not Aentitled to court-ordered grandparental visitation.” One would hope that would be welcomed into the family unit. However, on some occasions they may need to use the judi- cial system to establish time with their grandchildren. If a grand- parent is requesting the court’s aid in ordering visitation, first the court will look to see if mother and father are married and can be determined to be fit parents. If both elements are found then the court will respect the parent’s decision that the visitation is not in their child’s best interest. However, the law is ever changing in an effort to accommodate a variety of fact patterns. What if parental rights are terminated; the parents were never married; or there is an adoption or divorce pending?

RECENT CHANGES TO TITLE 10 O.S. §5 the grandchild’s parents has a felony convic- tion and is incarcerated in the Department of To adapt to our evolving society, this statute and the had a pre- has been amended 15 times since 1971. Just existing relationship with the child that pre- recently, on May 21, 2009, the statute was dates the incarceration.2 renumbered from Title 10 O.S. §5 to 43 O.S. §109.4. For those of you who are already CONSTITUTIONALITY OF THE STATUTE familiar with the 2008 statute, the 2009 version Initially grandparents did not have standing adds the following two fact patterns: A grand- to assert a claim to visitation with their grand- parent can be ordered visitation if the intact children. Influenced by case law, the Legisla- nuclear family has been disrupted; the grand- ture amended Title 10 O.S.§5 to include access child’s parent who is a child of the grandpar- if one natural parent was deceased and other ent is deceased; the grandparent has a pre- parent remarried,3 when one or both parents existing relationship with the child that pre- were deceased4 or for the grandparent whose dates the death; unless the death of the mother child’s parental rights had been terminated.5 was due to complications related to the birth In re Herbst6 was the first case that dealt with of the child.1 The second addition to the stat- the constitutionality of the statute as the trial ute awards grandparental visitation if one of

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2401 court denied maternal grandfather’s applica- make decisions concerning the care, custody, and tion for visitation, finding 10 O.S. §5(A)(1) was control of their children.”9 unconstitutional as applied to the facts of this Influenced by Herbst , Title 43 §109.4 states case. Grandchild was in the custody and con- that the grandparent has to establish harm or trol of her married parents, both of whom potential harm before the court can consider objected to the applicant’s proposed visita- what is in the grandchild’s best interest. A tion. At that time the authority given in Title10 showing of harm is discussed at length, In the O.S. §5(A)(1) allowed the district court to Matter of the Guardianship of H.E.W. 10 J. Wyatt grant grandparental visitation if the court and A. Ailey were the unmarried parents of deems it in the child’s best interest. (Emphasis H.E.W. After the child’s birth, father died added.) The statute did not provide for a while serving in the U.S. Navy. A guardian- showing of harm to the child before bringing ship proceeding ensued so that H.E.W. could the best interest of the child into the court’s receive his father’s personal belongings. consideration. The court held: Mother was appointed guardian of their child. The facts of this case involve no harm or Paternal grandmother and great grandmother threat of harm to S.D.S. and no unfitness on filed a petition in the guardianship action for the part of the parents. As a result, there is visitation. The trial court granted visitation no interest so compelling which could give finding that harm occurred to H.E.W. because the State of Oklahoma license to interfere there had been visitation during the first seven with the decision of these parents whose months of H.E.W.’s life which was abruptly care for their child has never been ques- ended. tioned or suspect. Herbst argues for an The appellate court reversed the order grant- application of 10 O.S. §5(A)(1) which effec- ing visitation stating that grandmother did tively strips parents of the right to make not allege, and the evidence did not show, that the decisions regarding grandparental visi- mother was unfit. The opinion stated: tation and their own children. Any conflict between the fundamental, constitutional “If operating over the objection of fit par- right of parents to care for their children as ents, grandparental visitation may be they see fit and the statutorily created right imposed only upon a showing that the of grandparental visitation must be recon- child would suffer harm without it.” The ciled in favor of the preservation of the grandparent seeking visitation bears the parents’ constitutional rights. The relation- burden of proving harm to the child and ship between parent and child must be harm must be shown before the court con- held paramount.7 siders the child’s best interests. Death of one of the parents does not change the sur- The opinion in Herbst was greatly influenced viving parent’s fitness as a mother nor alter by Troxel v. Granville,8 where the biological her constitutionally protected rights to rear parents of two daughters were never married. her child without state interference. Because Following separation, the father lived with his of the fit parents’ constitutionally protected parents, and the daughters visited their pater- rights to rear their child, and the presump- nal grandparents often. After the father com- tion that they make decisions in the child’s mitted suicide, the paternal grandparents best interests, the alleged harm to the child petitioned the court for visitation with their must be significant. More specifically, to granddaughters. Although the mother did not succeed, the grandparents must allege and oppose visitation she wanted less time than prove that the failure to grant visitation the grandparents requested. The lower court will cause the child significant harm by granted . The U.S. adversely affecting the child’s health, safety, or Supreme Court granted certiorari. welfare. (Emphasis added by author.) The U.S. Supreme Court addressed the con- “… a vague generalization about the posi- stitutionality of the section of the Revised tive influence many grandparents have Code of Washington which allowed “any per- upon their grandchildren falls far short of son” at “any time” to obtain visitation rights the necessary showing of harm which whenever the visitation was in the child’s best would warrant the state’s interference with interest. The U.S. Supreme Court invalidated this parental decision regarding who may the statute finding that it impermissibly inter- see the child.”11 fered with “the fundamental right of parents to

2402 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 ADOPTION and engrafts it upon that of the new parent- age. Public policy requires the severance of The leading case in addressing whether a all old ties… Where the adoption statute grandparent has standing to intervene in an accords the adopted child the status of a adoption is In the Matter of Adoption of G.D.L.12 natural child and frees the natural parents Both the unwed mother and father of G.D.L. of legal obligations toward it a court in consented to her adoption by petitioners, an granting an adoption decree is without unnamed couple, who filed their petition to authority to include a grant of visitation adopt. The maternal grandmother sought to privileges to the parent or members of the intervene to secure visitation rights in the parent’s family in the decree.”17 event an adoption was granted by the court, or, in the alternative, to adopt the child her- The facts in In Application of Walker18 resulted self. The district court denied grandmother’s in an interesting legal decision. Mother grew motion to intervene, finding that the grand- up in Georgia and gave birth to K.P.H., born mother had no standing to intervene because out of wedlock in 1958. At the time of his there is no specific statutory authority allow- birth, mother agreed to let her parents adopt ing such action. The court states: him. Requesting the court to grant her grand- parental visitation, the court held that the We note there is presently a thread of con- previous adoption legally severed her rights sistency woven through the statutes. Both to visitation, regardless of the fact that she §5 and 60.16(3) allow grandparent’s visita- eventually lived with and raised her son. tion in adoption cases only when the adop- tion results in the child remaining with at Neither K.P.H.’s post-adoption residence least one blood relative as a parent.”13 with Appellant, nor any relationship in fact which may have developed between Appel- Leake v. Grissom14 was decided when the statute lant and Brandy, created the legal relation only allowed grandparental visitation when the of grandparent and grandchild required by consent for adoption was given to a blood rela- the visitation statute.19 tive, not the mother’s new husband. In denying grandparental visitation the court said: Currently 43 O.S. §109.4.(3) states that the district court shall not grant to any grandpar- Where the adoption statute accords the ent of an unmarried minor child visitation adopted child the status of a natural child, rights to that child subsequent to the final the court, in the absence of statutory author- order of adoption. However, if there is already ity to the contrary may not grant visitation grandparent visitation in place, it will not be privileges.15 terminated unless ordered by the court after However, two dissenting noticed a leg- an opportunity to be heard and the district islative “thread” referred to above, and stated, court determines it to be in the best interest of the child, or if the child had been placed for Those statutes [§5 and 60.16(3)] should be adoption prior to attaining six months of age. construed together in light of the objective doubtless intended by the Legislature… APPLICATION OF THE STATUTE The post decree adoption was not intended In an effort to determine in advance whether as a barrier (to grandparental visitation) so your client would be eligible to receive grand- long as the child remained with at least one parental visitation, the statute states that visi- blood relative as a parent. The obvious tation may be granted if: intent of the cited enactments, read togeth- er, was to prevent alienation from grand- (a) the court deems it is in the child’s best parents in all those instances in which the interest; and post-death or post-decree adoption has not (b) there is a showing of parental unfitness placed the offspring beyond the circle of or harm to the grandchild; the child’s consanguinity.16 (c) the intact nuclear family has been dis- rupted by a divorce, annulment, separate The purpose of adoption proceedings is to maintenance; legal custody has been terminate all legal relationships in rights given to a third party; a parent has between a minor child and its natural par- deceased; a parent has been imprisoned; ents and to establish these rights in the a parent has deserted the family; or the adoptive parents… A decree of adoption severs the child from its own family tree

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2403 grandparent requesting visitation had custody previously.20 Note, again that a judge may not order visita- The parents never married tion if the child is in an intact nuclear family and both parents are determined fit. In deter- and live in separate households. mining “fitness” it may be shown that a parent has an untreated chemical or alcohol depen- Mother filed a petition against dency; a history of violent behavior or mental illness; exhibited a lack of proper care that has father seeking custody and been detrimental to the child; or has demon- strated conduct that shows the parent is inca- child support. pable or unwilling to take care of the child. In the Matter of the Guardianship of H.E.W.21 the court stated that the grandparent seeking visitation bears the burden of proving harm to the child and harm must be shown before the court considers the child’s best interests.22 The statute defines harm or potential harm as a showing that without court-ordered visitation by the grandparent, the child’s emotional, mental or physical well-being could reason- ably or would be jeopardized.23 As previously stated, it isn’t enough to state that the child would miss seeing the grandparent. One might need an to explain the extent of the pre-existing relationship between grandparent and child, the emotional bonds that were created during that time and what emotional and psychological damage would occur with the end of the relationship. In determining “best interest” the court may make specific findings of fact with regard to numerous considerations. To name a few, the court will look at the willingness of grandpar- ent to encourage the parental relationship; the final, the district court issued interim orders length and quality of the pre-existing relation- granting father’s parents visitation. After the ship; motivation of parents in denying visita- adoption was finalized, the court granted visi- tion and grandparent’s request for visitation; tation to the grandparents over mother’s the moral fitness of the parties; interruption to objection. In response, mother filed a motion the child’s activities and the significant people to terminate grandparent visitation which the the child would interact with in both the par- court denied. Mother appealed and the Court ent’s and grandparent’s lives.24 Because it of Civil Appeals affirmed. The Supreme Court requires a bloodline, 43 O.S. §109.4 does not granted the writ of certiorari. apply to step-grandparents. The court has held that a party seeking to MODIFICATION OF GRANDPARENTAL modify a visitation order has the burden of RIGHTS proof: In Scott v. Scott25 a child was born in Septem- This court has construed this provision in a ber 1992 to mother and father during their custody modification proceeding to require marriage. The parents were divorced in 1994, the moving party to show a change in with mother receiving custody and father circumstances which “adversely effect[s] visitation. Thereafter, father’s parental rights the best interest of the child such that were terminated. Mother remarried in 1995 the temporal, moral and mental welfare of and one year later she and her new husband the child would be improved by the change. adopted the child. Before the adoption was

2404 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 A similar showing is appropriate for a motion be denied, the district court treated modification or change of a grandparent mother’s motion only as an objection to grand- visitation order. Because the Mother is father’s motion to enforce visitation. Grandfa- seeking to terminate existing court-ordered ther then filed an application for a contempt grandparent visitation, she has the burden citation for mother’s unilateral action termi- of showing a change in circumstances such nating grandfather’s visitation in contraven- that modification or termination of an exist- tion of the November order. He requested ing grandparent visitation is in the best reinstatement of the order, mother’s incarcera- interest of the child.”26 tion, and an award of costs and attorney fees. Ingram v. Knippers27 adds to this discussion: At a hearing on the motions, the district Child was born in 1995, to mother and father. court placed the burden of proof on grandfa- The parents never married and live in sepa- ther to show mother’s unfitness or potential rate households. Mother filed a petition against harm to child. Grandfather presented the tes- father seeking custody and child support. In timony of child’s counselor that termination December 1997, the district court awarded of grandparental visitation would result in custody of child to mother, set a visitation harm to child. Mother did not allege or pres- schedule for father, and fixed the father’s ent any evidence that there had been a sub- monthly child support obligation. stantial change of circumstances or that termi- nating visitation would be in child’s best In 2000, child’s paternal grandfather filed a interest. In April 2001, the district court entered motion to intervene and for visitation. Grand- an order enforcing grandfather’s motion to father alleged that he had been involved in visitation. child’s life since birth, that he had provided financial and other support for both child and On appeal, mother claimed the statute which mother, that grandparental visitation would allowed the initial grant of grandparental visi- be in child’s best interest, and that grandfather tation required a showing of harm to child or had unsuccessfully attempted to receive visi- parental unfitness; the grandfather failed to tation through his direct contact with mother. meet his burden of showing harm; the visita- tion should not have been granted, and she Eventually mother and father came to an should be allowed to unilaterally terminate agreement which the district court entered that the visitation. allowed visitation between child and grandfa- ther. The schedule covered October and Novem- The problem with Mother’s claim was that ber of 2000. The parties agreed and the court the initial visitation was a consent order ordered that further visitation would be as rec- entered after Mother and Grandfather had ommended by child’s counselor. reached an agreement. (Emphasis added.) Because Mother consented to the initial In December, mother unilaterally terminat- visitation, the order was not entered under ed grandfather’s visitation with child. Mother authority of Title 10 §5, and Mother’s rights did not seek court approval before terminat- were not infringed by the order. Further, ing the visitation. Grandfather filed a motion the visitation order is not now subject to to enforce his visitation rights, alleging that collateral attack on the ground that Title 10 mother had unreasonably interfered and §5 is unconstitutional. denied him visitation. He requested an order setting a specific visitation schedule, requiring A judgment based on an agreement of “the mother to post a bond, and awarding him parties is enforceable and valid even though costs and attorney fees. it does what a trial court cannot [otherwise] do, provided the agreement does not con- Mother then filed a motion seeking to termi- travene public policy. Nothing in Title 10 §5 nate grandfather’s visitation. She argued that or this Court’s jurisprudence prevents a courts may not order grandparental visitation court from granting grandparental visita- absent a showing that the custodial parent is tion when the parties agree to the visita- unfit or that the child will suffer harm if the tion. Mother has failed to present any con- visitation is not allowed. She did not allege vincing argument that the grandparental that termination of grandparent’s visitation visitation order was void such that it is was in child’s best interest. Even though subject to collateral attack in an enforce- mother specifically requested that the visita- ment proceeding. tion be terminated and that grandfather’s

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2405 The district court should have considered awards against the non-prevailing party Mother’s motion as a request to terminate has a on our open access to grandparental visitation. On remand, the courts guarantee. district court should conduct a hearing on Oklahoma jurisprudence, thus, recognizes Mother’s motion to terminate. The burden that attorney fee statutes are strictly applied is on Mother, as the moving party, to first because to do otherwise holds out the real show a change of circumstances and to possibility of chilling access to the courts. then show that termination of the visitation … Further, if the involved attorney fee stat- would be in Child’s best interest. The dis- ute requires interpretation it may be read in trict court should consider all relevant fac- context with other parts of the statute and tors in determining the Child’s best interest in light of the law in effect at the time of its giving due regard for Mother’s interest in enactment.32 raising her child. Mother must present evi- dence more than that she simply has In 1999 an express attorney fee provision was changed her mind and does not wish added to 10 O.S. Supp.1997, §5 as subsection Grandfather to have any contact with (E).33 It provided that in any action for grandpa- Child.”28 rental visitation pursuant to §5, the court may PROCEDURE award attorney fees and costs if the court found it to be equitable. In 2000, §5 was extensively Sections 43 §109.4 (F) (1-7) lays out the pro- amended, providing that if the court found cedures for requesting or enforcing grandpa- that the motion for enforcement of visitation rental visitation. Jurisdiction lies with the dis- rights was unreasonably filed or pursued by trict courts to order or enforce visitation rights the grandparent, the court could assess reason- upon the filing of a verified petition. Venue is able attorney fees, costs, and court in the county of ongoing litigation or county costs against the grandparent.34 of child or parent. Notice must be given to the person having custody of the child.29 In the current statute, if it is found that the parent unreasonably interfered or denied If the parent unreasonably interferes or established visitation, or the grandparent filed denies grandparental visitation a motion to a frivolous motion for enforcement, the losing enforce visitation may be filed. At the initial party may be awarded an assessment of rea- hearing, mediation will be ordered and a hear- sonable attorney fees, mediation costs and ing on the merits is set. If mediation is success- court costs.35 ful, the agreement is brought to the court for CONCLUSION an order. If the court finds that there was inter- ference or denial, the court may order a spe- In light of the attention grandparental visita- cific visitation schedule, compensating visita- tion rights has received from the Legislature, tion time, attorney fees or for the parent to this area appears to be much like Will Rogers’ post a bond.30 observation about Oklahoma weather: “If you ATTORNEY FEES don’t like it, just wait awhile. It’s bound to change.” The confusing and contradictory Last, but not least; you lose, you may pay. provisions of 43 §109.4 make grandparental Folsom v. Folsom31 discusses attorney fees in visitation rights a reliable source of contro- grandparental visitation cases. versy and litigation that would include exten- sive fact patterns and expert witnesses. Attor- This Court stated the following in State ex neys attempting to have a court order grand- rel. Tal v. City of Oklahoma City, concerning parental visitation would be best advised to the well-known as to the read the statute often, anticipating the evolu- recovery of attorney fees in litigation: tion of the law which continues to accommo- The Rule is generally that each litigant pays date new and equitable fact patterns. for their own legal representation and our courts are without authority to assess attor- 1. See 43 O.S. §109.4(A) (3). 2. See 43 O.S. §109.4(A) (5). ney fees in the absence of a specific statute 3. In re Fox, 1977 OK 126, 567 P.2d 985. or contract allowing for their recovery. 4. Julien v. Gardner,1981 OK 54, 628 P.2d 1165. 5. Matter of K.S., T.W. & G.S., 54 P.2d 1050 (Okla., 1982). Exceptions to the Rule are narrowly defined 6. 1998 OK 100, 971 P.2d 395. and carved out with great caution because 7. In re Herbst, 1998 OK 100, 971 P.2d 395 ¶ 17. it is understood liberality of attorney fee 8. 120 S.Ct. 2054 (2000).

2406 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 9. Troxel, 120 S.Ct. at 2062. 10. 2004 OK Civ. App 19, (OK, 2004). 11. Id. at ¶ 7. About The Author 12. 1987 OK 115, 747 P.2d 282. 13. Id. at ¶8. Allison A. Hart earned a B.S.

14. 614 P.2d 1107 (Okl. 1980). 15. Id. at 1110. in psychology from OU and her 16. Id., dissenting opinion at 1111. law degree from Suffolk Univer- 17. In Matter of Fox, 567 P.2d 985 (Okl. 1977). 18. 1993 OK CIV APP 148, 861 P.2d 346. sity. She has practiced in the 19. 1993 OK CIV APP 148, 861 P.2d 346 ¶ 9. states of Massachusetts, Texas 20. See 43 §109.4 (A) (1) ( c 1-9). 21. 2004 OK Civ. App 19, (OK, 2004). and Oklahoma. While in Bos- 22. Id. at ¶ 7. ton she interned with Judge 23. See 43 §109.4 (2) (a). 24. See 43 O.S. §109.4 (E). William Ginsburg, was editor in 25. 2001 OK 9, 19 P.3d 273. chief of the Advocate and worked 26. Stephen v. Stephen, 1997 OK 52, ¶ 4, 937 P.2d 92, 95. 27. 2003 OK 58, 72 P.3d 17. with State Rep. Barbara Gray. 28. Id. at ¶14.(citations omitted). Additionally, she researched and drafted successful 29. See 43 §109.4 (F) (1). legislation for the Committee for the Reformation 30. See 43 §109.4 (F) (6)(a-c). 31. 2003 OK 96, 81 P.3d 652. of Family Law. Today she has a general practice in 32. Id. at ¶ 8. Edmond. 33. 1999 Okla.Sess.Laws, Ch.383, §1; 10 O.S.Supp.1999, §5(E). 34. 2000 Okla.Sess.Laws, Ch.246, §1; 10 O.S.Supp.2000, §5(E)(7). 35. See 43 §109.4 (6) (d) and (7).

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2407 2408 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 FAMILY LAW Marital Homestead Rights Protection: Impact of Hill v. Discover Card? By Kraettli Q. Epperson THE LAW ON ‘MARITAL HOMESTEAD’ MAY HAVE CHANGED he recent Oklahoma Court of Civil Appeals holding in the Hill v. Discover Card case may mean that in certain circum- Tstances there is no longer a requirement for both spouses’ simultaneous execution of a single deed (or mortgage) to a third party, even though both spouses are living, married, and the property is still their homestead. Such situation, under Hill, would arise where one spouse has already conveyed his or her legal interest in the homestead to the other spouse. (Hill v. Dis- cover Card, 2008 OK CIV APP 1111) Such opinion may change the long standing protection created under the constitutional and statutory prohibition against the unilateral conveyance (or encum- brance) of the “marital homestead” to a third party.

THE MARITAL HOMESTEAD IS ONE OF ers as needing safeguards created and enforced THE FOUR TYPES OF HOMESTEAD by the government. This includes shielding the The primary home or residence of an indi- debtor from the clutches of the “overreaching” creditor through enactment of anti-deficiency vidual, a married couple or a family is referred 3 to in Oklahoma within the as statutes, and preventing a spouse and the minor the “homestead,” or, more specifically, depend- children from being abandoned and left home- ing on the legal question involved, the “assess- less by a thoughtless and selfish spouse through enforcement of the marital and probate home- ment homestead,” the “execution homestead,” 4 the “probate homestead” or the “marital stead laws, among others. homestead.”2 Historically, public policy sought to protect Oklahoma is known as a “populist” state, both the wife and the family, with three princi- meaning its statutes reflect a leaning toward pro- pal reasons being given for the creation of tecting those citizens and residents who were, homestead laws: and still are, perceived by the state’s policy mak-

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2409 1) To protect the family unit from forced evic- land is voluntarily encumbered to serve as col- tion from its home through the enforcement of lateral for the debt, i.e., a real estate mortgage); general creditors’ claims; 3) probate: the preservation of the equivalent 2) To provide protection to the widow after of a life estate in the couple’s homestead for the the death of her husband; and benefit of a surviving spouse (and any minor children) when a spouse dies, even where the 3) To protect the wife from ill of the deceased spouse was the holder of all of the husband.5 record title; and Currently, such homestead rights are equally 4) marital: a protection of the spouses’ home- available to either a husband or wife. stead rights against voluntary encumbrancing The homestead right is not shown in the land or conveyancing by one spouse without the records, and it exists alongside but separate joinder of the other spouse, even where the from the normal ownership interest wherein spouse who is attempting to affect the title one or more persons hold record legal title to holds all of the record legal title.7 land. This homestead right is overlaid on the A SUMMARY OF THE FACTS AND recorded legal title interest, such as a fee simple DECISION IN HILL absolute, and, depending on the type of home- stead right being asserted, can be held by one The Operative Facts or more single persons or by a married couple, In brief summary, the operative facts of the and, when there are multiple holders of legal Hill case occurred in the following order: title, they can hold as tenants in common or as joint tenants with right of survivorship. The 1) the husband, Larry Jennings, unilaterally homestead right is understood better if it is conveyed of record his interest in the recognized as a personal “right” held by a per- homestead (which he had been holding as son and not as an “interest” in real estate. This a joint tenant with his wife) to his wife, Sue is a better approach because any sort of “inter- Ann Jennings, then; est” in real estate can be conveyed (unless such 2) the wife, Sue Ann, (falsely stating in the right to convey is expressly restricted of record), deed she was single) unilaterally conveyed but a right held personally can be waived for a of record the land to a third party (plain- particular transaction but cannot be conveyed tiffs Hill herein), then; permanently to another person (regardless of whether it is a spouse or a third party). 3) a general creditor of the first couple (defen- dant, Discover Card) properly filed a state- Unlike dower and courtesy, homestead does ment of judgment in the land records not have its roots in the common law. The where it immediately became a lien on all Oklahoma Supreme Court has explained that lands actually owned by such first couple the homestead, as it exists in Oklahoma, is a (the Jennings), then; creature of the state and statutes, nothing like it being known at common law.6 It 4) the first couple (the Jennings) then signed is a purely constitutional and statutory creation (both of them) and recorded an identical based on public policy considerations. deed of the same land to the second couple (the Hills), then; There are four categories of homestead rights in Oklahoma, including: 5) the second couple (the Hills, the plaintiffs herein) thereafter filed an action against 1) assessment: an ad valorem tax exemption, the creditor to quiet title extinguishing any whereby an owner elects which tract of land is money judgment lien claim on the land.8 his homestead, and the owner receives a dis- count on his annual county ad valorem real The Questions to Be Resolved property taxes; The four questions which had to be resolved 2) execution: a prohibition exempting the to reach a decision in Hill were: debtor’s homestead (for either an unmarried 1) Was the recorded transfer of the legal title individual or a married couple) from execution to the marital homestead lands from the for general creditors’ debts (as distinguished husband, Larry, to his wife, Sue Ann, from special debts whereby a specific tract of valid?

2410 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 2) Did such transfer of the legal title from the Discover Card, had lost its properly filed judg- husband, Larry, to his wife, Sue Ann, ment lien ( i.e., apparently due to the absence of include a transfer and relinquishment of a “reference” to specific real property). It should any further claim by Larry to the protec- be noted that a statement of judgment, pre- tions provided under the Oklahoma Con- pared and then submitted to the local county stitution and statutes concerning marital clerk by the creditor, pursuant to 12 O.S. §706, homesteads? is on a form created by the administrator of the courts, and that neither the statute nor the form 3) Was the conveyance of the legal title for the calls for the listing of any specific lands. Such marital homestead lands from Sue Ann to statutory lien is intended to be a lien on any the Hills invalid, due to the absence of Sue and all of the debtor’s real estate in that county, Ann’s husband’s signature on the same whether owned when the statement of judg- deed as her signature, which signature ment is initially filed, or later acquired by the would have shown his consent to such debtor.9 The appellate court found that the transfer? judgment lien did not attach to the subject land 4) Did the judgment lien held by Discover for reasons different than those used by the Card against Larry and Sue Ann Jennings trial court, so this trial court holding – which attach to and become perfected against the implies that the statement of judgment must subject lands? describe the lands being covered by the lien — can be ignored. The Trial Court Decision The Appellate Court Decision The trial court found the deed from Larry to his wife, Sue Ann, to be valid, but held that the The appellate court answers the four essen- deed from Sue Ann Jennings to the Hills was tial questions, listed above, as follows: invalid (due to the absence of Larry’s signature), 1) a deed from one spouse to the other spouse thereby restoring title to the Jennings, but then it is valid to transfer legal title to such spouse held that the Discover Card judgment lien failed without the grantee’s signature on the deed, to attach to the Jennings’ land, stating (as set because: forth in ¶5 in the Hill case): (a) “[c]onveyance of the homestead from ¶5 The trial court heard argument of the par- one spouse to the other is not a sale of the ties’ counsel on May 23, 2007, and issued its homestead within the meaning of Sec. 2, order on July 5, 2007. The trial court made the Art. XII, Constitution” (¶7 of Hill, quoting following findings: Howard v. Stanolind Oil and Gas Co.10) [Discover’s] unsecured judgment against the (b) a husband’s unilateral mortgage of the Jennings was only filed of record against the homestead to the wife does not require the Jennings after their [sic] was a conveyance of wife’s signature because “no effort was title to [the Hills] by Mrs. Jennings, defec- made to divest the wife of her estate or tive in its failure to convey as well the right. That remained unimpaired. I can see homestead interest of Mr. Jennings, and no reason why she should be required to misleading in its characterization of Mrs. execute the deed to herself in order [sic] to Jennings as a single woman. The only notice its validity.” (¶8 of Hill, quoting Brooks, of judgment filed, the notice against the Jen- which was quoting Furrow11) nings, was filed as a general judgment, devoid of even a reference to the real (c) “The case of a deed to the wife is not property conveyed to the [Hills]. These within the spirit of this section [on marital actions on the part of [Discover] do not con- homestead], which surely cannot intend stitute legal notice to the [Hills] of the claim that the wife do the vain and absurd thing against the subject property, and do not meet of executing, as grantor, a deed to herself as [sic] an operation of law which perfects the grantee.” (¶8 of Hill, quoting Hall12) purported lien against that property. 2) such unilateral deed of the homestead from Assuming this trial court decision was left one spouse to the other spouse permanently standing, you would have the situation where transfers the grantor’s marital homestead the debtors, the Jennings, still owned the sub- claims, because: ject lands instead of the Hills, but the creditor,

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2411 (a) (Hill at ¶10) “There is a statutory pre- the homestead includes the non-title-holding sumption that every estate in land granted spouse’s signature, if the non-title-holding by a deed shall be deemed an estate in fee spouse had previously deeded the legal title to simple unless limited by express words.” the other spouse. Clearly Petroleum Corp. v. Harrison, 1980 OK Such conveyance, placing the entire legal 188, ¶8, 621 P.2d 528, 532, and 16 O.S. §§18 title in one of the two spouses, might be for & 29, and Atkinson v. Barr, 1967 OK 103, legitimate reasons, such as to avoid probate, ¶22, 428 P.2d 316, 320 [note that the Clearly to avoid creditors of the grantor spouse, etc. In case was dealing solely with the question those situations (arising pre-Hill), the non- as to whether a conveyance granted an title-holding spouse would still be protected easement or a fee simple, and note this against adverse actions by his or her spouse author’s discussion of Atkinson below] due to such non-title-holding spouse’s marital (b) (Hill at ¶10) “Further, the quit-claim protection, which would require the non-title- deed from Larry [the husband] to Sue Ann holding spouse’s signature on any subsequent [his wife] operated to convey Larry’s home- deeds or encumbrances. But now (post-Hill), stead rights to Sue Ann in addition to all such conveyances to the other spouse may other right, title, and interest he had in the have the grave consequence of stripping away property.” such constitutional protection. (c) ( Hill at ¶11) “We find no ambiguity in It should be noted that this significant rul- Larry’s quit-claim deed to Sue Ann. The ing is not made expressly prospective in deed intended to and did convey all the nature, which would have thereby made it right, title, and interest, including Larry’s apply only to future conveyances; therefore, it homestead interest, to Sue Ann.” is possible that it affects all existing deeds and titles as well.13 3) ( Hill at ¶11) the Hills received valid title without Larry’s signature, because: PROBLEMS WITH THE HILL DECISION “Consequently, at the time that Sue Ann General Background conveyed the property to the [third par- According to the Oklahoma Constitution, ties] Hills, it was unnecessary for Larry Art. 12, Section 2: [her husband] to relinquish his homestead rights to the property as he had already The homestead of the family shall be, and is done so in the quit-claim deed [to hereby protected from forced sale for the pay- Sue Ann].” ment of debts, except for the purchase money therefore or a part of such purchase money, the 4) (Hill at ¶13) while the appellate court held that the “statement of judgment [was] properly taxes due thereon, or for work and material used filed”, the creditor still has no lien on the sub- in constructing improvements thereon; nor ject lands, because: shall the owner, if married, sell the home- stead without the consent of his or her Discover also contends that the trial court erred spouse, given in such manner as may be when it ruled that a statement of judgment prescribed by law; Provided, Nothing in this properly filed pursuant to 12 O.S.§706 is article shall prohibit any person from mortgag- insufficient to create a lien and that some addi- ing his homestead, the spouse, if any, joining tional notice to the Hills was required. Since we therein; nor prevent the sale thereof on foreclo- hold that the quit-claim deed from Larry to Sue sure to satisfy any such mortgage. Ann was valid and operated to divest Larry of his homestead rights and since Sue Ann, the This constitutional homestead is the land that sole owner of the property conveyed the prop- is occupied by the family as a home.14 erty to the Hills before Discover’s judgment The state Legislature was expressly empow- lien, we find it unnecessary to address this ered by such constitutional language to pre- issue as the lien did not attach to the prop- scribe the “manner” in which a spouse would erty during either Sue Ann’s or Larry’s give their “consent” to the sale (including the ownership. conveyancing or encumbrancing) of the mari- The result of this decision appears to be that tal homestead. Under 16 O.S. §4(A): hereafter, title examiners will no longer need to A. No deed, mortgage, or conveyance of real ensure that a conveyance or encumbrance of estate or any interest in real estate, other than a

2412 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 lease for a period not to exceed one (1) year, The husband or wife may convey, mortgage or shall be valid unless in writing and subscribed make any contract relating to any real estate, by the grantors. No deed, mortgage, or con- other than the homestead, belonging to him or her, tract affecting the homestead exempt by as the case may be, without being joined by the law, except a lease for a period not exceeding other in such conveyance, mortgage or contract. one (1) year, shall be valid unless in writing However, the obstacle to an examiner approv- and subscribed by both husband and wife, ing a title where any of these three circum- if both are living and not divorced, or stances might apply – without a judicial pro- legally separated, except as otherwise pro- ceeding establishing the necessary facts — is vided for by law. that all title examiners must examine title for In recognition of the practical realities associ- lenders, buyers or title insurers on the basis of ated with married life, the state Legislature, looking for “marketable title,” and such title when enacting the initial implementation stat- must be determined based on what the public utes, carved out a few situations (i.e., abandon- land records show.15 Unless there is a court ment, incapacity, and non-homestead) where it proceeding undertaken (as is expressly was not deemed necessary for both spouses to required to establish incapacity) and the result- sign a deed conveying lands which was the ing decree filed in the land records, no examin- marital homestead, including: ing attorney can pass the title even where someone insists that one of these three situa- 16 O.S. §6 provides (upon abandonment): tions is present. This reluctance is because the Where the title to the homestead is in the hus- consequences of a deed failing to include both band, and the wife voluntarily abandons him spouses’ signatures, if it turns out that the land for a period of one (1) year or from any cause was their marital homestead, is a void deed, a takes up her residence out of the state, he may disastrous result.16 convey, mortgage or make any contract relating None of these three statutory exceptions thereto without being joined therein by her; and apply to our fact pattern here in the Hill where the title to the homestead is in the wife matter: 1) there was no allegation of abandon- and the husband voluntarily abandons her, or ment, 2) there was no claim of incompetency, from any cause takes up his residence out of the and 3) the property was admittedly the mari- state for a period of one (1) year she may con- tal homestead. vey, mortgage or make any contract relating thereto without being joined therein by him. Pre-Hill precedential case law in Oklahoma supported the first point decided by the Hill 16 O.S. §7 provides (upon incapacity): appellate court. Yes, a unilateral conveyance by In case of a homestead held in joint tenancy, if one spouse to the other of the marital home- one spouse becomes incapacitated, upon appli- stead is valid to convey the legal title. This cation of the other spouse to the district court of case-law created principle is reflected in Okla- the county in which the homestead is located, homa Title Examination Standards 7.1 and 7.2, and upon due proof of said incapacity, the court which deal with marital interests, as approved may issue an order permitting said other spouse by the Oklahoma Bar Association House of to sell, convey, lease, lease for oil and gas min- Delegates.17 Standard 7.2 provides in part: ing purposes, or mortgage the homestead. For 7.2 MARITAL INTERESTS AND purposes of this section and sections 3 and 4 of MARKETABLE TITLE this act “incapacitated” or “incapacity” means Except as otherwise provided in Standard 7.1, impairment due to mental illness, mental defi- no deed, mortgage or other conveyance by ciency, physical illness or disability, to the an individual grantor shall be approved as extent the individual lacks sufficient under- sufficient to vest marketable title in the standing or capacity to make or communicate grantee unless: responsible decisions. A. The body of the instrument contains the 16 O.S. §§8-10, define the judicial procedure to grantor’s recitation to the effect that the indi- establish such incapacity and to authorize such vidual grantor is unmarried; or sale. B. The individual grantor’s spouse, identified as such in the body of the instrument, subscribes 16 O.S. §13 provides (if non-homestead): the instrument as a grantor; or

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2413 to three existing Oklahoma Supreme Court Yes, a unilateral conveyance opinions. When title to the marital homestead is being by one spouse to the other of conveyed to the other spouse, there are three possible combinations as to how title was held the marital homestead is valid to before such conveyance: 1) all of the title is held by the grantor spouse, 2) the title is held jointly convey the legal title. by the spouses (either as tenants in common or joint tenants), or 3) all of the title is held by the grantee spouse. If one was trying to prove that a spouse grant- ee had received the entire legal title including a permanent transfer of any personal homestead protections, the third scenario (i.e., grantor did not hold any legal title at the time of executing the deed) is the most supportive of such an argument. This is because the granting spouse has only a homestead claim to transfer and has no legal title to convey, so they “must” intend (it would be argued) that they were conveying something — whatever they had — meaning their homestead rights. In the other two scenari- os (i.e., the spouse grantor had either all of or C. The grantee is the spouse of the indi- half of the legal title to convey), there could be vidual grantor and that fact is recited by an effective counter argument that the spouse the grantor in the body of the instrument. grantor had some legal title to convey, so that it would be unclear whether the intent was to con- The practice followed by real estate attorneys vey only the grantor’s legal title or to transfer in Oklahoma is to require that every deed, or such legal title plus transfer permanently all of 18 encumbrance (such as a mortgage ) must his or her homestead right. The pre-Hill Okla- include the statement of marital status and homa Supreme Court opinion (Atkinson, dis- joinder of spouse, if married, except in the sin- cussed immediately below), which is “on-point” gle instance covered by TES 7.2(C) (set forth with the Hill issues, happens to deal with facts above), which is when the grantee is one of the identical to the third scenario set out above (i.e., spouses. Such exception (TES 7.2(C)) matches no initial legal title in grantor), and, consequent- the first of the two deeds involved in our fact ly, its holding cannot be explained away when it pattern in Hill (i.e. , from husband Larry to wife holds that any conveyance between spouses Sue Ann). does not convey the grantor spouse’s marital Also, it would be hard — assuming the homestead right. court’s decision on points one to three were correct or were conceded — to argue with In the 1967 Atkinson case, the Oklahoma point four as decided by the Hill court. Yes, if Supreme Court rendered a decision where the the title to the lands was effectively conveyed facts were as follows: 1) the entire legal title from the Jennings to the Hills, before the judg- was in the wife (scenario three above), and 2) ment lien against the Jennings was created by the husband (who held no legal title) unilater- filing the statement of judgment in the land ally deeded the marital homestead to the wife records, then the Hills took title free from such (who had used her money to initially acquire lien. the land, and took and held title exclusively in her name), and 3), while the husband was Unilateral Deed to Other Spouse Does Not alive, the wife unilaterally deeded the marital Transfer Grantor’s Homestead Right homestead to third parties, her children (not by However, the pronouncements in Hill regard- this husband). Such fact pattern is, in all rele- ing points two and three are directly contrary vant aspects, identical to the one in Hill.

2414 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 The appellate court in Hill was aware of and The constitutional provisions are set forth in cited Atkinson for one point (i.e., a unilateral article 12, secs. 1, 2, and 3, of the constitution, deed from one spouse to the other spouse is and are designed to protect the family while valid to convey the legal title covering the both husband and wife are living, regardless marital homestead, at ¶10 in Hill) and then of which one of them is vested with title to failed to follow the rest of the holding in such the land occupied as the homestead. In re case when considering this later point (i.e., Carothers’ ¶10. whether the grantee spouse can subsequently CONCLUSION: JOINDER OF SPOUSE IS unilaterally convey the marital homestead to a STILL REQUIRED third party). Based on three precedential cases pre-dating At ¶9 of Atkinson, the Oklahoma Supreme Hill (Atkinson, Brooks, and In re Carothers’), the Court held (directly contrary to Hill) that: law of Oklahoma is clear that the homestead The trial court found that the property was at rights of the husband Larry, in the Hill case, all times the homestead of Vinnin [the husband] survived his conveyance of his legal title to his and Annette [the wife] and concluded as a mat- spouse, Sue Ann, and, consequently, the later ter of law that the warranty deed, dated August unilateral conveyance by Sue Ann of the 17, 1949, from Annette to her children… was marital homestead to the Hills, was void, void because it did not bear the signature of because Larry was living and it was still their Vinnin as required by 16 O.S. §4. The court homestead. further concluded as a matter of law that when Hence, the holdings of the Oklahoma Vinnin executed and delivered to Annette the Supreme Court in Atkinson, Brooks and In re quit-claim deed of August 12, 1949, it was his Carothers’ remain the law of Oklahoma. intent to convey to Annette any and all right, title and interest he might have in the property, Out of deference for the precedential nature of except his homestead right. an Oklahoma Supreme Court case, and due to concern about passing title where such title Finally, at ¶18 of Atkinson, the Oklahoma might be “void,” this author recommends that a Supreme Court held, “It is our conclusion that the cautious title examiner continue to require that warranty deed [from Annette unilaterally to her any land must be conveyed with disclosure of children] was void because Vinnin did not sign it marital status and joinder of spouse, if any. And and such conclusion by the trial court was correct.” furthermore, any prior deeds discovered in a Also, in another case cited by the appellate review of a chain of title which fail to disclose court in Hill at ¶8 & 9, to support its position that the grantor was unmarried, or if married, that the unilateral deed from husband Larry to was joined by his or her spouse, should contin- wife Sue Ann was valid, the Oklahoma Supreme ue – post-Hill – to be viewed as being defective Court adopted and quoted favorably this lan- and must be cured. The only exception to such guage from an Alabama case: required joinder would concern a conveyance from one spouse as grantor to the other spouse A conveyance of homestead premises by the as grantee of the legal title, as discussed in Title husband to the wife, while having effect as an Examination Standard 7.2(C). alienation of the land in the sense of passing the legal title to her, is yet not an alienation of 1. On Dec. 1, 2008, Request for Certiorari to the Oklahoma Supreme the homestead, since that [the homestead right] Court was denied, from an adverse decision from the Court of Civil Appeals (Division II), and on Dec. 31, 2008 mandate issued. The Okla- does not thereby pass either from the husband, homa Court of Civil Appeals opinion was published in the Oklahoma the wife, or the family, but is still in every essen- Bar Journal on Jan. 17, 2009, Vol. 80, No. 2, page 132, and in the Okla- homa Supreme Court system as 2008 OK CIV APP 111. tial quality and attribute, with respect to posses- 2. This author previously wrote about the four types of homesteads sion, enjoyment, and all the rights necessary to in Oklahoma in an article in the Oklahoma Bar Journal in 2004: “Real Estate Homesteads in Oklahoma: Conveying and Encumbering Such its protection as exempted property, the home- Interest,” 75 The Oklahoma Bar Journal 1357 (May 15, 2004); some of the stead alike of the husband, the wife and their text in this current article is repeated from that earlier article; a copy of this earlier article (as paper #162) is available on the author’s Web site: children. Brooks v. Butler, 1939 OK 132, ¶18, www.EppersonLaw.com. 87 P.2d 1092, 1096. 3. 12 O.S.§686. 4. Ok. Const., Art. 12, Secs. 1-2; 16 O.S. §4; 31 O.S. §1(A)(1); 58 It should be noted that another prior Okla- O.S.§311. 5. Raymond J. Werner, Real Estate Law (Southwestern — Eleventh homa Supreme Court case similarly held that: Edition — 2002), Section 19.03, Homestead. 6. In re Carothers’ Estate, 1946 OK 111, ¶10, 167 P.2d 899, 902.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2415 7. Ok. Const., Art. 12, Secs. 1-2; 16 O.S.§4; 31 O.S.§1(A)(1); 58 to convey or encumber the homestead and the protections afforded to O.S.§311; the landowner’s spouse therein. 68 O.S.§§2888-2889, 2892-2893, 2901. Severed minerals cannot be impressed with homestead character and 8. Hill v. Discover Card, 2008 OK CIV APP 111, ¶2, ___ P.3d ___, ___; the therefore, the standards contained in this chapter are inapplicable to detailed facts as shown in the Discover Card “Petition for Rehearing instruments relating solely to previously severed mineral interests. Before the Court of Appeals and Brief in Support of the Petition” follow: Marketability of title is not impaired by the possibility of an outstand- ing marital interest in the spouse of any former owner whose title has Date of Filing Instrument Comment passed by instrument or instruments which have been of record in the 3/18/96 Deed Larry & Sue Ann Jennings acquire title to office of the county clerk of the county in which the property is located property in joint tenancy. for not less than ten (10) years after the date of recording, where no 4/4/03 Quit-Claim Deed Larry Jennings gives quit-claim deed to legal action shall have been instituted during said ten (10) year period Sue Ann Jennings. in any court of record having jurisdiction, seeking to cancel, avoid or invalidate such instrument or instruments on the ground or grounds 10/2/03 Joint Tenancy Warranty Deed Sue Ann Jennings (falsely claiming to be a that the property constituted the homestead of the party or parties single woman) conveys property to Hills. involved. Larry Jennings does not join in the execu- Authority: 16 O.S. §4. tion of the conveyance. Comment: See Title Examination Standard 6.7 as to use of powers of 4/8/04 Statement of Judgment Discover Bank records a statement of attorney. judgment with the county clerk of Rogers 18. There is an earlier case, Cimarron Federal Sav. Assn. v. Jones, 1991 County reciting that it recovered judgment OK CIV APP 67, 832 P.2d 426 (approved for publication by the Okla- against Larry and Sue Ann Jennings in homa Supreme Court), which allows the enforcement of a purchase Rogers County Case Number CS-03-351 on money mortgage against the execution and marital homestead even April 1, 2004. without the signature of the non-title holding spouse. Transactional attorneys and title attorneys typically ignore such holding and require 9/28/04 Warranty Deed Larry and Sue Ann Jennings as husband the signature of the non-title holding spouse because 1) it is usually and wife convey property to Hills. unclear in the record whether the loan is a purchase money mortgage, 12/12/05 Divorce Decree Larry and Sue Ann Jennings’ divorce decree and 2) because the case is based on an erroneous assumption that a filed in the Rogers County court clerk’s purchase money vendor’s claim and a purchase money mortgage are office. the same thing. OK Const. Art. 12, Section 2, expressly allows a gen- eral execution against the execution homestead for a purchase money 9. The author has written several articles concerning the creation of vendor’s claim, which claim is not evidenced by a signed mortgage, money judgment liens, which are available on his Web site: www.Epper- but also requires the signature of the non-title holding spouse on any sonLaw.com, including: “Have Judgment Lien Creditors Become ‘Bona mortgage, whether purchase money or not. Fide Purchasers’?”, 68 Oklahoma Bar Journal 1071 (March 29, 1997) (paper 19. In re Carothers’ Estate, 1946 OK 111, ¶10 167 P.2d 899, 900. # 106); “Judgment Lien Creation Now Requires a Judgment Affidavit,” 59 Oklahoma Bar Journal 3643 (Dec. 1988) (paper # 32). 10. Howard v. Stanolind Oil & Gas Co., 1946 OK 56, ¶36, 169 O.2d 737, 744. About The Author 11. Brooks v. Butler, 1939 OK 132, ¶13, 87 P.2d 1092, 1095; Furrows v. Athey, 33 N.W. 208, 209 (Neb. 1887). 12. Hall v. Powell, 1899 OK 50, ¶5, 57 P.168, 170. Kraettli Q. Epperson graduat- 13. OK Const., Art. 2, Sec. 7. ed from OCU (J.D. in 1978). He §7. Due process of law No person shall be deprived of life, liberty, or property, without is a partner with Mee Mee Hoge due process of law. & Epperson in Oklahoma City, 14. In re Carothers’ Estate, 1946 OK 111, ¶16, 167 P.2d 899, 903; In re Gardner’s Estate, 1926 OK 167, ¶14, 250 P. 490, 493-494. and he focuses on mineral and 15. In 1982, the Oklahoma Supreme Court endorsed the Title real property litigation (arbitra- Examination Standards of the Oklahoma Bar Association by saying: “we deem such Title Examination Standards and the annotations cited tion, receiverships, lien priori- in support thereof to be persuasive.” Knowles v. Freeman, 1982 OK 89, ties, ownership, restrictions, and ¶16, 649 P.2d 532, 535. TES 1.1 MARKETABLE TITLE DEFINED condemnation issues), commer- A marketable title is one free from apparent defects, grave doubts and cial real property acquisitions litigious uncertainty, and consists of both legal and equitable title fairly and homeowners/condominium association represen- deducible of record. 16. Wilson v. Clark, 1924 OK 233, ¶8, 223 P. 668, 670-671. tation. Mr. Epperson is chair of the OBA TES Com- 17. TES 7.1 MARITAL INTERESTS: DEFINITION; APPLICABILITY OF mittee and teaches “Oklahoma Land Titles” at OCU STANDARDS; BAR OR PRESUMPTION OF THEIR NON-EXISTENCE The term “Marital Interest,” as used in this chapter, means the rights School of Law. and restrictions placed by law upon an individual landowner’s ability

2416 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2417 Allen M. Smallwood Mack K. Martin Deborah Reheard Tulsa Oklahoma City Eufaula President Vice President President-Elect 2010 OBA Officers &

New Board Susan B. Shields Glenn A. Devoll Members Oklahoma City Enid

Ryland Louis Rivas David A. Poarch Molly A. Aspan Chickasha Norman Tulsa YLD Chairperson

2418 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 PHOTO HIGHLIGHTS

OBA 105th Annual Meeting Nov. 4 - 6, 2009 • Sheraton Hotel, OKC

Governor Jim Stuart, Marcus Bivines and Board of Governor Bruce Kent Ellen Quinton, Governor Deborah Reheard, Amber Peckio Garrett, Governor Cathy Christensen and Judge Donna Dirickson

D. Faith Orlowski and Dru Waren Comedian Henry Cho

* See more photos in the photo gallery at www.okbar.org

OBA members enjoying Casino Night

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2419 Gov. Brad Henry

Board of Governors voting held at the House of Delegates

OBA President Jon Parsley and Jennifer Johnson and Luke Gaither Abe Lincoln look-alike at the CLE Plenary Session

Shirley Chesnut and Governor Charles Chesnut Annual Luncheon speaker Gene Kranz

2420 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 Space shuttle ice sculpture on OBA President Jon Parsley, Annual Luncheon speaker display at the President’s Reception Gene Kranz and OBA Vice President Linda Thomas

Nkem House, Jeff Trevillion, Charles Battle, Reginald Smith and Marcus Bivines OBA President Jon Parsley presents the Outstanding County Bar Association Award to the Garfield Coun- ty Bar Association. Accepting is Randy Long, Enid.

Plan to attend the 2010 Annual Meeting? Join us Nov. 17-19 at the Tulsa Crowne Plaza Hotel!

Photographers: Melissa Brown and Carol Manning Attendees socialize at the President’s Reception.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2421 ANNUAL MEETING HIGHLIGHTS 2009 Attorney Art Show The 2009 OBA Art Show was another great success. Eleven artists entered 22 pieces of art in five different categories. A panel of three judges scored the art, and awards were presented to the attorney artists listed below. BEST IN SHOW/ARTIST OF THE YEAR The 2009 OBA Artist of the Year goes to Cam Cherry of Edmond for his wooden bowl made of turned wood and turquoise, titled “Hope.” Woodturning involves forming the external and internal shape of the piece and then sealing the wood repeatedly for a smooth finish. His piece is highly figured with burl swirls and turquoise embellishments running around the entire bowl. The piece is named “Hope” after the HOPEfully Yours consignment shop in Edmond where the wood used in the piece was removed before construction of the shop. “It seemed natural, since the piece was reclaimed from a tree destined for the landfill, and given the purpose of the property it came from, to name the piece ‘Hope,’” Mr. Cherry said.

OBA President Jon Parsley presents the 2009 “Hope” Photo: Morgan Estes Artist of the Year Award to Cam Cherry at the Annual Luncheon. Photo: Melissa Brown OIL PAINTING BLACK AND WHITE COLOR THREE- 2nd Place PHOTOGRAPHY PHOTOGRAPHY DIMENSIONAL Judge John Gardner, 1st Place 1st Place 1st Place Shawnee Kenni B. Merritt, Judge Michael Stano, Cam Cherry, Edmond “Study of Santa Oklahoma City Stillwater “Hope” “Back Country” “Fort El Morro” Fe Depot” 2nd Place 2nd Place 2nd Place James H. Paddleford, ACRYLIC Judge Michael Stano, Kenni B. Merritt, Oklahoma City 2nd Place Stillwater Oklahoma City “Retirement: Golden?” Judge John Gardner, “Lake Overholser “Chuckanut Sandstone” 3rd Place Shawnee Bridge” “Portrait of Terry West” 3rd Place Cam Cherry, Edmond 3rd Place Reginald Smith, “Reclaimed” Judge Michael Stano, Oklahoma City Stillwater “The Protector” “Got Wood?”

2422 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 ANNUAL MEETING House of Delegates Actions Actions of the OBA House of Delegates on matters submitted for a vote at the 105th Annual Meeting on Friday, Nov. 6, 2009, are as follows:

RESOLUTION NO. ONE posed legislation amending 12 O.S. 2001, Section 3230 relating to recording of tes- BE IT RESOLVED by the House of Dele- timony by other than stenographic gates of the Oklahoma Bar Association means. (Requires 60% affirmative vote for that the Association adopt, as part of its passage. OBA Bylaws Art. VIII Sec. 5) (Sub- legislative program, as published in The mitted by the OBA Commit- Oklahoma Bar Journal and posted on the tee. Adoption recommended by the OBA OBA Web site at www.okbar.org, pro- Board of Governors.) posed legislation amending 12 O.S. 2001, Section 2005, Service and Filing of Plead- Action: Adopted ings and Other Papers. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the OBA Civil RESOLUTION NO. FOUR Procedure Committee. Adoption recom- BE IT RESOLVED by the House of Dele- mended by the OBA Board of Governors.) gates of the Oklahoma Bar Association Action: Adopted that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal ADOPTEDand posted on the RESOLUTION NO. TWO OBA Web site at www.okbar.org, pro- posed legislation amending 12 O.S. 2001, BE IT RESOLVED by the House of Del- Section 2004.1 relating to subpoenas for egates of the Oklahoma Bar Association testing and sampling information, elec- that the Association adopt, as part of its tronically stored information, privileged legislative program, as published in The information and duties in responding; Oklahoma Bar JournalADOPTED and posted on the amending 12 O.S. 2001, Section 3226 add- OBA Web site at www.okbar.org, pro- ing new language for initial disclosures, posed legislation amending 12 O.S. electronically stored information, limita- 2001, Section 158.1, Licensure of Private tions on frequency and extent, claims of Process Server – Revocation – List of privilege and procedure; 12 O.S. 2001, Servers. (Requires 60% affirmative vote for Section 3233 interrogatories to parties; 12 passage. OBA Bylaws Art. VIII Sec. 5) O.S. 2001, Section 3234 production of (Submitted by the OBA Civil Procedure documents and things; 12 O.S. 2001, Sec- Committee. Adoption recommended by tion 3237 failure to make or cooperate in the OBA Board of Governors.) discovery. (Requires 60% affirmative vote for Action: Adopted passage. OBA Bylaws Art. VIII Sec. 5) (Sub- mitted by the OBA Civil Procedure Commit- tee. Adoption recommended by the OBA RESOLUTION NO. THREE Board of Governors.) BE IT RESOLVED by the House of Del- Action: Adopted egates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, asADOPTED published in The Oklahoma Bar Journal and posted on the OBA Web site at www.okbar.org, pro- ADOPTED Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2423 RESOLUTION NO. FIVE Courts of Oklahoma. (Requires 60% affirma- tive vote for passage. OBA Bylaws Art. VIII BE IT RESOLVED by the House of Dele- Sec. 5) (Submitted by the OBA Civil Procedure gates of the Oklahoma Bar Association that Committee. Adoption recom-mended by the the Association adopt, as part of its legisla- OBA Board of Governors.) tive program, as published in The Okla- homa Bar Journal and posted on the OBA Action: Adopted Web site at www.okbar.org, proposed leg- islation amending 12 O.S. 2001 Section 3226 relating to discovery conference. (Requires 60% affirmative vote for passage. RESOLUTION NO. EIGHT OBA Bylaws Art. VIII Sec. 5) (Submitted by BE IT RESOLVED by the House of Dele- the OBA Civil Procedure Committee. Adop- gates of the Oklahoma Bar Association that tion not recommended by the OBA Board of the Association adopt, as part of its legisla- Governors.) tive program, as publishedADOPTED in The Okla- homa Bar Journal and posted on the OBA Action: Withdrawn Web site at www.okbar.org, proposed amendments to Oklahoma Supreme Court Rule 1.21 relating to computation of time RESOLUTION NO. SIX for commencement of an appeal. (Requires BE IT RESOLVED by the House of Dele- 60% affirmative vote for passage. OBA Bylaws gates of the Oklahoma Bar Association Art. VIII Sec. 5) (Submitted by the OBA Civil that the Association adopt, as part of its Procedure Committee.) legislative program, as published inwn The Oklahoma Bar Journalwit andh dpostedra on the Action: Withdrawn OBA Web site at www.okbar.org, pro- posed legislation amending 28 O.S. 2001 Section 152.1 relating to payment of jury trial fee. (Requires 60% affirmative vote for Title Examination passage. OBA Bylaws Art. VIII Sec. 5) (Sub- Standards mitted by the OBA Civil Procedure Commit- Action: The Oklahoma Title Examination tee. No position taken by the OBA Board Standards revisions and additions publishedwn of Governors.) in the Oklahoma Bar wi Journalt h80 d2304r a(Nov. 7, 2009) and posted to the Web site at www. Action: No Position Taken okbar.org were approved in the proposed form. The revisions and additions are effec- tive immediately. RESOLUTION NO. SEVEN BE IT RESOLVED by the House of Dele- gates of the Oklahoma Bar Association that All resolutions are available in the Association adopt, as part of its legisla- their entirety at www.okbar.org/ tive program, as publishedADOPTED in The Okla- annualmeeting09/business/resolutions homa Bar Journal and posted on the OBA Web site at www.okbar.org, proposed changes to Rule 5 of the Rules for District ADOPTED

2424 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 The OBA Needs You — Volunteer for a Committee he work of OBA committees is vital to the organization — and that work requires volunteers. Sure, you’re busy, but we need you… whether you are a seasoned lawyer or a new lawyer. TPlease consider becoming involved in your professional association. There are many commit- tees to choose from, so there should be at least one that interests you. If you practice in or around the Tulsa metro like I do, remember that meetings are conducted using videoconferencing equipment in Tulsa, which makes it convenient to interact with others in Oklahoma City. No time wasted driving the turnpike. The easiest way to sign up is online at http://my.okbar.org/login. If you are already on a com- mittee, my.okbar shows you when your current term expires. Other sign-up options are to complete the form below and either fax or mail it to me. I’m counting on your help to make my year as your bar president a productive one. Please sign up by Dec. 11, 2009.

Allen Smallwood, President-Elect –––––––––––––––––––––––––––––––– Standing Committees –––––––––––––––––––––––––––––––– • Access to Justice • Group Insurance • • Awards • Law Day • Professionalism • Bar Association Technology • Law-related Education • Rules of Professional • Bar Center Facilities • Law Schools Conduct • Bench and Bar • Lawyers Helping Lawyers • Solo and Small Firm • Civil Procedure Assistance Program Conference Planning • Communications • Lawyers with Physical • Strategic Planning • Disaster Response Challenges • Uniform Laws and Relief • Legal Intern • • Diversity • Legislative Monitoring • Work/Life Balance • Evidence Code • Member Services

Note: No need to sign up again if your current term has not expired. Check www.okbar.org/members/committees/ for terms

Please Type or Print Name ______Telephone ______Address ______OBA # ______City ______State/Zip______FAX ______E-mail ______

Committee Name Have you ever served If so, when? 1st Choice ______on this committee? How long? q q ______2nd Choice ______Yes No q Yes q No ______3rd Choice ______q Yes q No ______q Please assign me to only one committee. q I am willing to serve on (two or three - circle one) committees. Besides committee work, I am interested in the following area(s): ______Mail: Allen M. Smallwood • 1310 S. Denver Ave., Tulsa, OK 74119 Fax: (918) 582-1991 • E-Mail: [email protected]

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2425 PHOTO HIGHLIGHTS

Board of Governors Travels to Guymon

Justice Steven Taylor, OBA President Jon Parsley, Texas County Bar President Peggy Carter and Jim Swartz at a dinner hosted by the Texas County Bar Association. The Board of Governors held its October meeting in Guymon, home of President Parsley.

Guymon attorney John D. Board goes through the barbeque buffet line with Gov. Lou Ann Moudy, 1987 OBA President David Petty and Sharon Petty.

Kimmy Reddick, Judge Ryan Reddick and Kenneth Kelly with Gov. Jerry McCombs and Joyce McCombs. The McCombs travelled 485 miles from Idabel to attend the board meeting.

Thad Parsons visits with 2008 OBA President Bill Conger and Cory Hicks inside Jon Parsley’s barn that was the location for the evening’s festivities.

2426 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 MEDIATE YOUR CASE NOW

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F R E E C L E The Low Income Taxpayer Clinic at Oklahoma Indian Legal Services, Inc. Presents An Introduction to Practice: U.S. Bankruptcy Court and U.S. Tax Court Oklahoma City Dates: 9: 00 AM until 4: 00 PM, Monday, December 21, 2009 (registration: 8:30 AM) and 9: 00 AM until 4: 00 PM, Tuesday, December 22, 2009 (Lunch each day from Noon until 1:00 PM) 9: 00 AM until 4: 00 PM, Monday, December 28, 2009 (registration: 8:30 AM) and 9: 00 AM until 4: 00 PM, Tuesday, December 29, 2009 (Lunch each day from Noon until 1:00 PM) 7: 00 AM until 8: 00 PM, Wednesday, December 30, 2009 (registration: 6:45 AM) (Lunch: Noon until 1:00 PM) 9: 00 AM until 4: 00 PM, Monday, January 4, 2010 (registration: 8:30 AM) and 9: 00 AM until 4: 00 PM, Tuesday, January 5, 2010 (Lunch each day from Noon until 1:00 PM) 9: 00 AM until 4: 00 PM, Monday, January 6, 2010 (registration: 8:30 AM) and 9: 00 AM until 4: 00 PM, Tuesday, January 7, 2010 (Lunch each day from Noon until 1:00 PM) Location: The Low Income Taxpayer Clinic at Oklahoma Indian Legal Services, Inc. 4200 Perimeter Center Drive, Suite 222 Oklahoma City, OK 73112-2310 Voice: 1.800.658.1497 CLE Credit: This course has been approved by the Oklahoma Bar Association Continuing Legal Education Commission for twelve (12) hours of mandatory CLE credit, including one (1) hour of ethics. Tuition: This CLE course and its accompanying materials are free. Attendees will neither be solicited nor expected to make a contri- bution of time or money. This course is funded by an LITC Program Grant. Cancellation Policy: Cancellations will be accepted at anytime. Enrollment: Call 1.800.658.1497 (toll free) or 405.943.6457 and request course enrollment. F R E E C L E

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2427 FROM THE EXECUTIVE DIRECTOR

Failure Was Not an Option By John Morris Williams

President Jon K. Parsley told gift of $25,000 to the program. me that if we did not have a My special thanks to my great Annual Meeting he was friend Reggie Whitten and his going to kill me. With his family for this generous gift. being from the panhandle and Also, a special thanks to all, I figured he had the means another friend, former Texas to pull it off. So for me per- Bar Association President sonally — failure was not an Martha Dickie, for coming yet option! I know this is a cheesy another time to our Annual play off of this year’s Annual Meeting and serving on the Meeting theme, but given all panel at the LHLAP CLE. incredible efforts that it took the planning, hard work, cre- to pull off this feat. Talk about ativity, great programs and In Gene Kranz’s moving putting things in perspective. story of the fate and rescue of speakers, failure was never a So it is with much of the possibility. the Apollo 13 crew, one could not help but to realize his pas- work that our members do. Any meeting that starts with sion for the work even after he Not many of us are involved in rocket science, but often the free chocolate ought to be had long retired. As he spoke, work is high stakes and the pretty good in my book. This it was clear that apathy was fate of people’s lives is was the prelude into what never an option for him either. involved. From the faces in many have said was one of Talk about stress. Can you the crowd, I do not think I the best meetings ever. At the imagine someone telling you luncheon, Gene Kranz mes- was the only one who was that the space vehicle carrying moved by the message. Thank merized the crowd. Having returning astronauts might the governor, lieutenant gov- you President Parsley for miss the earth! I remember the picking this great speaker! ernor and attorney general in news during the time of the attendance also made the mission, and until Mr. Kranz In the end, the great work of event even more special. The told us the vivid details, it the OBA staff and President comedy of Henry Cho, the Art never dawned on me the Parsley ensured that failure Show, the CLE, the section was not an option for this meetings and all the other year’s Annual Meeting. Many activities made it a very full thanks to the volunteers who and productive meeting. Of led meetings, spoke at CLEs course, I need to also thank Any meeting and assisted in the meeting the vendors and the people planning. Special thanks to who put all the hospitality that starts with free staff members Carol Manning, suites together. chocolate ought to who does all the awards and I was especially proud of the promotion, and Craig Combs, Lawyers Helping Lawyers be pretty good in who does all the logistics Assistance Program CLE. Dur- work with the hotel on space and food — not to mention ing the session, the Whitten- my book. working with the vendors and Newman Foundation made a

2428 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 all the sections and commit- tees that meet at the Annual Meeting. Thanks also to Oklahoma Bar Journal Donita Douglas, who puts together the CLE program and Editorial Calendar 1,000 other details that add the special touch to the meet- ing. Each of them is assisted 2009 by a first-rate staff that makes n December: Ethics & it all happen. Professional Responsibility Had it been left to me, the Editor: Jim Stuart [email protected] If you would meeting probably would have like to write been a failure. Given the Deadline: Sept. 9 , 2009 an article vision of Jon Parsley and the hard work of the rest of the 2010 on these staff, failure was never even topics, contact n January: Meet Your OBA the editor. considered. A special thank Editor: Carol Manning you to those of you who attended to make this meeting n February: Indian Law a real success. Editor: Leslie Taylor [email protected] Deadline: Oct. 1, 2009 n March: Workers’ Compensation Editor: Emily Duensing [email protected] Deadline: Jan. 1, 2010 To contact Executive n April: Law Day Director Williams, e-mail Editor: Carol Manning him at [email protected] n May: Editor: Jim Stuart [email protected] Deadline: Jan. 1, 2010 n August: Oklahoma Editor: Melissa DeLacerda [email protected] Deadline: May 1, 2010 n September: Bar Convention Editor: Carol Manning n October: Probate Editor: Scott Buhlinger [email protected] Deadline: May 1, 2010 n November: Technology & Law Practice Management Editor: January Windrix [email protected] Deadline: Aug. 1, 2010 n December: Ethics & Professional Responsibility Editor: Pandee Ramirez [email protected] Deadline: Aug. 1, 2010

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2429 LAW PRACTICE TIPS

Everyone Loves a Few Handy Tips By Jim Calloway, Director, OBA Management Assistance Program

Tips programs are popular at lawyer CLE programs, whether they are technology conferences, solo and small firm conferences or bar associ- ation annual meetings. They are often labeled 50 Tips in 50 Minutes or 60 Tips in 60 Minutes, depending on the length of the mandatory CLE hour in the state. Okla- homa lawyers had opportuni- ties to hear tips programs this year at our OBA Solo and Small Firm Conference and at the OBA Technology Fair fea- turing the ABA TECHSHOW® Roadshow. I also did 50 tips programs for some of the county bars. This summer I took a couple of days off to be selected a black background think most will end up pur- on a 60 tips panel for the with white or yellow fonts. chasing at the end of the trial. American - Just visit Readability once and So many lawyers are getting yers Association Annual Con- select the way you’d like iPhones that I wanted to men- ference in Las Vegas. I don’t Readability to change Web tion the site iphonejd.com for know much about immigra- sites and drag the link up to all of you to visit. If you are in tion, but the audience seemed the Links browser toolbar. The a part of the state with no to enjoy the technology tips. next time you are visiting a AT&T “map for that,” the new So for this month’s Law Prac- hard-to-read Web site, click on Droid phone from Verizon is tice Tips column, let’s cover a the link in your tool bar and getting good reviews. few technology tips to help you now have a “reader you be a better lawyer (or friendly” version. Create your own free maybe just enjoy yourself clipping service Anagram from GetAnagram. more). com is the quintessential Out- Google Alerts allows you to One of my favorite Web site look utility. Anagram allows set up an e-mail alert service discoveries of the year is Read- you to quickly capture contact so you are notified when your ability lab.arc90.com/experi- information from an e-mail name or a client’s name is ments/readability/ (or just signature block, e-filed plead- mentioned in a media source Google Readability). Readabil- ing or digital contact list. It indexed by Google. Since so ity makes Web sites easier to fills the information in Out- many online new services read by serving you up a ver- look Contact for you, rarely have free content for the first sion free of ads and with big- making a mistake. Readers few days and then lock it ger fonts, if you desire. This is who use Outlook should at behind a “subscribers only” really great if someone has least utilize the free trial. I password, it is a good practice

2430 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 to visit the news site as soon conference to review and edit More practice as you get the e-mail and use a document can save hours management tips Adobe Acrobat Professional or of sending around version by for you another tool to print the Web e-mail attachments. You can get even more great page to a PDF file for future tips at the ABA TECHSHOW® reference. Adopt a File and Folder Naming Convention (and stick 2010 which is scheduled for Speaking of Adobe Acrobat to it). One New Year’s resolu- March 25-27, 2010, at the Chi- and PDF files, I still get calls tion for law firms is to adopt cago Hilton. The Oklahoma and e-mail from lawyers who written guidelines for how Bar Association is an ABA do not understand that there documents will be named and TECHSHOW® event promoter are two kinds of PDF files, where they will be stored on and you can get a discount roughly speaking. There are the computer network. If when you register by using image-only files and there are someone is out of the office, our event promoter code, PDFs which contain hidden this makes it much easier to which is EP1017. text in addition to the image. It locate the documents that they In case you missed the news, is easy to test the file. Just try were working on. the Oklahoma Bar Associa- to select a sentence or two and tion’s 2010 Solo and Small copy and paste it into another One of the hottest topics Firm Conference will be held document. If you can’t it is under discussion is the paper- June 24 through 26, 2010, at probably image-only. I say less office, or as I call it the the Downstream Casino and probably because advanced digital law practice. I men- Resort. Room reservations are Adobe users can protect docu- tioned it in my September col- now open, and we are encour- ments in many ways, includ- umn, but if you didn’t check it aging attendees to stay Satur- ing disabling printing or other out, the “paperless” theme day night this year to get the functions. But generally, if you issue of Law Practice Today is a most out of this great new cannot copy text, it is because great free resource on this venue. The resort’s Web site is there is none there. The only topic. www.abanet.org/lpm/ downstreamcasino.com. We way to generate text from this lpt/archives/september09. will continue our tradition of is OCR (Optical Character Rec- shtml many family-friendly activities ognition) which is unlikely to and don’t forget your swim be perfect. Holiday Gift Guides suit this year as Downstream How do you create a § sign? Sharon Nelson and I have has a great pool with cabanas In Microsoft Word 2003 you posted our latest Digital Edge for relaxing. typically use the Insert com- podcast, “High Tech Toys for Well, I have more tips but mand and then select the § the Holidays.” While a few of had probably better save a few sign from a list of available these have some business use, for my program for the Payne symbols and hit Insert. Next most are just fun. Listen to the County Bar Association Nov. time you have the § selected, podcast (about 20 minutes) 30 in Cushing. hit Keyboard Shortcut and and then click on the links in then the keystroke combina- the attached show notes sec- Your year-round source for tion Alt + S. Click Assign and tion to visit the product Web practice tips should be Jim from then on, the keystroke sites. tinyurl.com/yfm2wy3 Calloway’s Law Practice Tips combination Alt + S will insert This is our 25th podcast! Blog, online at jimcalloway. the § at the cursor without you Fellow practice management typepad.com. If you cannot having to remove your hands advisor Reid Trautz has also remember to visit the site reg- from the keyboard. posted his 2009 Holiday Gift ularly, you can visit once and subscribe to the e-mail service Videoconferencing is a hot Guide for Lawyers with lots of that allows you to receive the topic and one service for free interesting gift ideas. This is posts there via e-mail. The video conferencing is dimdim. his fifth year for the Holiday average will be a couple of com. You may not think you Gift Guide, and I certainly saw e-mails per week. need this, but having three or several items there I need. four lawyers meet for a Web- tinyurl.com/yz925y8

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2431 TM

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2432 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 ETHICS PROFESSIONAL RESPONSIBILITY Grievances and How to Avoid Them By Gina Hendryx, OBA General Counsel

Upon becoming general coun- What can be learned from hours and what to do if they sel of the OBA, I was intrigued these statistics? First, if you perceive there is an emergency. to learn which practice areas of practice in the areas of family If you set personal goals to be law were receiving the most law or the likeli- responsive to client’s concerns grievances and what types of hood of receiving a bar com- within reasonable parameters complaints were routinely being plaint is high. Regardless of and give the client sufficient lodged against attorneys. It was practice area, the most com- information to set realistic not surprising to learn that 43 mon complaint will be that you expectations, you will reduce percent of the complaints in have failed to keep the client the risk of receiving a com- 2008 were in matters relating to informed and/or are taking too plaint of client neglect. criminal law and family law long to achieve a result. This During 2008, the Office of the representations. And, this was information is not novel. As General Counsel received 283 not an aberration. attorneys, we have been formal grievances involving 201 repeatedly warned of the risks Year after year, these two attorneys and 1,239 informal of procrastination. There are a areas of practice consistently grievances involving 885 attor- wealth of classes, seminars, receive the most complaints. neys. In total, 1,522 grievances books and opportunities to While still disconcerting espe- were received against 988 attor- address your own shortcom- cially if these are your two pri- neys. The total number of attor- ings when it comes to personal mary areas of practice, it is neys differs because some attor- work habits. In addition, you understandable given the neys received both formal and should also be directing your nature of the legal needs facing informal grievances. The OBA client’s expectations. From the a criminal defendant or family membership on Dec. 31, 2008, initial client intake, discuss law litigant. There are arguably was 16,275 attorneys. such issues as return of phone no other areas of law wherein calls, return of e-mail and Considering the total mem- the parties find themselves expected length of the repre- bership, the receipt of 1,522 with more at risk albeit either sentation. Set realistic response grievances involving 988 attor- loss of liberty or family. time with your clients. neys constituted approximately THE #1 COMPLAINT six percent of the attorneys Tell the client when you licensed to practice law by the The primary complaint return phone calls and e-mail. Oklahoma Supreme Court. charged against Oklahoma Repeat the information in the This is a small fraction of our attorneys continues to be client/ representation agreement. If membership, and the statistic file neglect. One of every two the client has been told and has that should not be lost is that grievances filed with the Office a document that explains that 94 percent of OBA attorneys of the General Counsel alleges e-mails are most often returned did not receive a complaint in dissatisfaction due to the attor- within 24 hours of receipt, then 2008. Too often we dwell on ney’s failure to respond to client the client will not have an the negative because that is inquiries or the delay in moving expectation of a response with- what gets the most attention. the matter to conclusion. In in a couple of hours. The same However, a review of the 2008 2008, 49 percent of the grievanc- approach should be taken with stats should highlight the posi- es received were categorized as cell phones. If you don’t want a tive hard work being done “neglect” complaints followed client calling you on Saturday every day by Oklahoma attor- by 13 percent based upon the evening when the visitation neys for their clients. personal behavior of the attor- exchange was been delayed, ney and 11 percent alleging then don’t give out your cell some form of misrepresentation number. Give the client infor- by the lawyer. mation on office numbers and

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2433 BOARD OF GOVERNORS ACTIONS October Meeting Summary The Oklahoma Bar Association Board of Governors met at the Holiday Inn Express in Guymon on Friday, Oct. 16, 2009.

REPORT OF THE REPORT OF THE the Civil Procedure Committee PRESIDENT EXECUTIVE DIRECTOR meeting. Governor Hixson President Parsley reported Executive Director Williams reported he attended the he attended the joint OBA/ reported that he attended the OBA/OBF joint dinner, Sep- OBF dinner and the Southern joint OBA/OBF dinner, Bar tember board meeting and Conference of Bar Presidents Center Facilities Committee OBA Tech Fair. Governor meeting in Kansas City. He meeting, Southern Conference McCombs reported he attend- also finalized plans for this of Bar Presidents, OCU Inno- ed the OBA/OBF event in month’s Board of Governors cence Project program, Group Bartlesville and the McCurtain meeting in Guymon. Insurance Trust meeting, County Bar luncheon. Gover- Supreme Court Conference to nor Moudy reported she REPORT OF THE attended the joint OBA/OBF VICE PRESIDENT hear the program on online filing and development of an dinner and the September Vice President Thomas electronic information system, board meeting. Governor reported she attended the OBA staff meeting to discuss online Reheard reported she attend- Tech Fair, Oklahoma Bar Foun- experience for members, ed the joint OBA/OBF dinner, dation meeting, September meeting to discuss potential September board meeting, Board of Governors meeting program for new lawyers, Southern Conference of Bar and OBA/OBF joint dinner. directors meeting, monthly Presidents Annual Meeting in Kansas City and the “Evening REPORT OF THE staff celebration and an open house at CoreVault. with John Grisham” at OCU. PRESIDENT-ELECT Governor Stockwell reported Unable to attend the meeting, BOARD MEMBER REPORTS she attended the Board of President-Elect Smallwood Governor Carter reported Governors social evening, Sep- reported via e-mail that he she attended the September tember board meeting, OBA met with certain members of Board meeting and the joint Tech Fair, Cleveland County the Budget Committee. He also OBA/OBF dinner. She also Bar Association Executive conducted interview sessions prepared her first report as Committee meeting, Cleveland with the Judicial Nominating presiding master of the Profes- County Bar Association lun- Commission and made final sional Responsibility . cheon with the Russian dele- preparations for the Annual Governor Chesnut reported gates and the Cleveland Coun- Meeting. he attended the joint OBA/ ty Bar Association luncheon OBF dinner, September board and CLE. Governor Stuart REPORT OF THE reported he attended the joint PAST PRESIDENT meeting and the Ottawa Coun- ty Bar Association monthly OBA/OBF dinner, Pottawato- Past President Conger meeting. Governor Dirickson mie County Bar Association reported he attended the Sep- reported she attended the joint meeting and OBA Board of tember board meeting, Bar OBA/OBF dinner, September Editors meeting. Center Facilities Committee board meeting and the Custer REPORT OF THE YOUNG meeting, Southern Conference County Bar Association LAWYERS DIVISION of Bar Presidents meeting in monthly meeting. Governor Kansas City, John Grisham lec- Dobbs reported he attended Governor Rose reported the ture at OCU and the Innocence the OBA/OBF joint dinner, YLD held a social event for Project meeting. September board meeting and new lawyers in Oklahoma

2434 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 City, and 75 people attended. ing the survey electronically upgraded restrooms, a new A similar event will be held in be considered. reception desk, carpet and Tulsa soon. CREATION OF SOUTHERN improved entrances. Members LAW STUDENT DIVISION CONFERENCE OF BAR who have seen the new space LIAISON REPORT PRESIDENTS TASK FORCE are giving it rave reviews. Sig- nage for Emerson Hall and the Unable to attend the meet- President Parsley reported Lambird Board Room is ing, LSD Chair Nathan Milner Oklahoma is part of an alli- underway. Past President Con- reported via e-mail he attend- ance of 17 states called the ger reported the next project is ed the September OBA/OBF Southern Conference of Bar moving the bar center’s main dinner. He also distributed Presidents, which holds an receptionist desk to the west information for the OBA annual meeting in addition to side of the lobby. Annual Meeting, held an meeting during ABA annual Annual Meeting registration and midyear meetings. He DOCUMENT CONTROL table and communicated with said the group is helpful for FOR OFFICE OF THE Craig Combs about the divi- networking and for informa- GENERAL COUNSEL sion’s involvement in the tion sharing. It will be Okla- General Counsel Hendryx Annual Meeting. homa’s turn to host the annual reported the physical weight REPORT OF THE meeting in 2013. Because of document storage is causing GENERAL COUNSEL details need to be confirmed the floor on the second floor to two years in advance, plan- sag. Discussion followed about General Counsel Hendryx ning will need to begin soon the current rules on retention. reported that she gave an eth- and a task force will be She said the scanning of docu- ics presentation at the New formed. ments is currently taking Lawyer Experience programs place, and research on solu- in Tulsa and Oklahoma City, as NOMINATIONS FOR FORENSIC REVIEW BOARD tions has just started. It was well as to the Garvin County suggested that requesting a Bar Association and the ABA President Parsley reported rule change be considered to Family Law Section. She also he submitted the names of allow the destruction of nones- hosted a of Russian Eddie Streater, Wewoka; James sential documents and files on attorneys at the Oklahoma R. Webb, Oklahoma City; and deceased lawyers. Bar Center and presented a Megan Simpson, Cordell; to program on attorney ethics the governor for his appoint- RESOLUTION NO. EIGHT and the discipline system in ment of one person to the President Parsley reported Oklahoma with Ethics Counsel board. The term will expire Resolution No. Eight that was Pickens. A written status report Dec. 31, 2014. presented at the Sept. 25 board of the Professional Responsi- OBA TECHNOLOGY FAIR meeting and resulted in the bility Commission and OBA REPORT board tabling action has been disciplinary matters for Sep- withdrawn. President Parsley reported tember 2009 was submitted SOUTHERN CONFERENCE for the board’s review. the OBA’s first technology fair at the Oklahoma Bar Center OF BAR PRESIDENTS RESOLUTION OF was a great success with about REPORT APPRECIATION FOR 160 members attending. It was President Parsley reported TEXAS COUNTY BAR noted that the event was an that he enjoyed the meetings The board voted to issue a excellent member benefit and and social activities. Several resolution expressing appreci- many members who came in OBA past presidents attended. ation to the Texas County Bar the morning stayed all day. EXECUTIVE SESSION Association for its hospitality. Executive Director Williams The board voted to go into 2012 MEMBERSHIP SURVEY said it is not planned to be an annual event. executive session to discuss Executive Director Williams pending litigation against the reported the association has BAR CENTER FACILITIES OBA, met in executive session surveyed members every 10 COMMITTEE REPORT and voted to come out of exec- years. He recommended that a Past President Conger utive session. taskforce be formed after the reported Emerson Hall reno- first of the year and conduct- vation is complete including

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2435 The University of Tulsa College of Law and the Tulsa Minority Networking Taskforce thank the many judges and lawyers who volunteered for the Inaugural 2009 Speed Networking event held on September 24:

Judge E. Mark Barcus Alissa A. Hurley R. Trent Shores Sara Barry Vaughn Iskanian Pete Silva, Jr. Keith B. Bartsch Jo Lynn Jeter Angela L. Smoot Elise Dunitz Brennan Carlye O. Jimerson Matthew A. Sunday Jacqueline Caldwell Debbie Johnstone Roy D. Tucker Excetral K. Caldwell Judge Sam A. Joyner Tamara A. Wagman Judge Daman H. Cantrell Marvin Lizama Ashley Webb Maria E. Cervantes Lucy S. Kroblin Cara Collinson Wells Katherine G. Coyle Judge Dana Kuehn Joseph R. Wells Jo Anne Deaton Karen Langdon Christopher W. Wilson S. Douglas Dodd Bronwen Llewellyn Judge Theresa Dreiling Judge Linda G. Selim Fiagome Morrissey Alberto Franco Judge Rebecca B. Martin A. Frey Nightingale Judge Carl Funderburk Robert Perugino Michael J. Gibbens Kevinn Matthews James O. Goodwin Barbara Sears Judge Edward J. Hicks, III George D. Shahadi

2436 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 BAR FOUNDATION NEWS

The Safety of Your IOLTA Account By Richard A. Riggs

A book could be written sional Conduct. That rule Association advised of about the development of has, since 1983, permitted accounts maintained in IOLTA programs in the Unit- lawyers to maintain interest response to this rule. ed States. That book might bearing trust accounts, into not be exciting enough to which funds that “are nomi- IOLTA accounts have not keep you awake at night, but nal in amount or are on been without controversy. it would definitely be a long deposit for a short period of They have been subject to book — and it would tell a challenge in several cases, story that is still developing. primarily on 5th Amend- ment grounds. However, Here are the basics familiar these claims were resolved to most of you. The occasion by the United States often arises for a lawyer to Like every other Supreme Court in the case of hold funds belonging to cli- Brown v. Legal Foundation of ents or others. Under the aspect of our financial Washington, 538 U.S. 216 Rules of Professional Con- (2003), in which the court duct, those funds must be system, IOLTA upheld Washington’s IOLTA held in accounts separate program. Accordingly, from the lawyer’s assets. If accounts have been IOLTA programs are now those funds can be economi- firmly established and have cally invested while held by affected by the recent become a significant resource the lawyer, earnings will for funding legal service pro- accrue to the benefit of the economic turmoil. grams throughout the coun- person for whom the funds try. Aggregate IOLTA reve- are held. Often, the amount nue throughout the country held is so small or the period time” may be deposited, in 2007, for instance, exceed- during which it is held is so with the interest earned on ed $371,000,000. short that the small amount such accounts to be remitted It should come as no sur- of interest that would be to the Oklahoma Bar Foun- earned would be more than prise that the establishment, dation for the furtherance of administration and monitor- eaten up by bank fees and its charitable purposes. costs. If the funds held by a ing of IOLTA accounts present lawyer are aggregated, how- Rule 1.15 was amended in administrative challenges. ever, the total interest earned 2004 to make IOLTA manda- However, through the cooper- could exceed these costs. For tory in Oklahoma. Accord- ation of Oklahoma lawyers, a number of years state laws ingly, Rule 1.15(h) now pro- their banks, the Oklahoma have permitted this interest vides that a lawyer who Bar Association and the Okla- to be remitted for charitable holds funds of clients or homa Bar Foundation, those purposes, usually for organi- third parties “shall create challenges will soon be a zations devoted to access to and maintain” an IOLTA thing of the past. The founda- justice. Authorization in account. Pursuant to Rule tion is working diligently Oklahoma is found in Rule 1.15(g) lawyers are required with Oklahoma banks to 1.15 of the Rules of Profes- to keep the Oklahoma Bar establish electronic reporting

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2437 and remittance procedures ing banks are currently facts have become clear. which, to date, have been insured without limitation. First, although we regret the very well received by partici- This program has been dramatic decline in IOLTA pating banks. While putting extended through June 30, revenue, we realize such a these procedures in place has 2010. That’s the good news. decline is merely a function proven to be a tedious and The bad news is that the of the economic cycle which, difficult process, in the long FDIC is imposing fees on the in time, will change. As run it will make administra- TAGP participating banks to interest rates rise, IOLTA tion of Oklahoma’s IOLTA cover the costs of the addi- income will be restored to, or program much easier for all tional coverage. Banks partic- exceed, historic levels. That concerned. ipating in the program, is a day we look forward to, understandably, seek to pass and in the meantime we are Like every other aspect of increased costs on to custom- taking care to conserve the our financial system, IOLTA ers by way of service charg- foundation’s resources and accounts have been affected es. These charges further to maximize the impact of by the recent economic tur- erode the IOLTA income foundation grants. Second, moil. First, because of the available for distribution. the decline in IOLTA reve- dramatic decline in interest Banks may opt out of the nue places more emphasis rates, IOLTA revenue has program, and accounts in on our Fellows program, dramatically decreased. The non-participating banks through which Oklahoma economic climate has also would only retain the stan- lawyers generously contrib- raised concerns about the dard FDIC insurance, cur- ute to the foundation’s possibility of bank failures. rently $250,000. A current list mission through annual In response to this concern, of banks that have elected to contributions. In light of the FDIC increased its insur- opt out of the extended our current economic cir- ance of depository accounts program can be found at cumstances, OBF Fellows from $100,000 to $250,000. www.fdic.gov/regulations/ are more important than This increased level of insur- resources/TLGP/optout. ever before. If you are not ance will remain in effect html. an OBF Fellow, please sign through Dec. 31, 2013. How- up to become one — a form ever, the FDIC also adopted As IOLTA has become an follows on the next page. the Transaction Account important source of funding Please rest assured that Guaranty Program (TAGP), for the Oklahoma Bar Foun- your contribution will be which provides participating dation, the foundation has well spent in helping banks temporary, unlimited kept a close eye on the Oklahomans in need. insurance coverage for cer- IOLTA developments tain depository accounts, described above. As OBF Richard A. Riggs is president including IOLTA trust Trustees evaluate IOLTA pro- of the Oklahoma Bar Founda- accounts. Accordingly, IOLTA grams and their roll in the tion. He can be reached at accounts held in participat- foundation’s mission, two [email protected]

2438 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 Fellow Enrollment Form

m Attorney m Non-Attorney

Name: ______(name, as it should appear on your OBF Fellow Plaque) County

Firm or other affiliation: ______

Mailing & Delivery Address:______

City/State/Zip: ______

Phone:______Fax:______E-Mail Address:______

__ I want to be an OBF Fellow now – Bill Me Later! __ Total amount enclosed, $1,000 __ $100 enclosed & bill annually Lawyers Transforming __ New Lawyer 1st Year, $25 enclosed Lives through educa- & bill as stated tion, citizenship and __ New Lawyer within 3 Years, $50 enclosed & bill as stated justice for all. Join the __ I want to be recognized as a Sustaining OBF Fellows today! Fellow & will continue my annual gift of at least $100 – (initial pledge should be complete) __ I want to be recognized at the leadership level of Benefactor Fellow & will annually contribute at least $300 – (initial pledge should be complete)

Signature & Date: ______OBA Bar #: ______Make checks payable to: Oklahoma Bar Foundation • P O Box 53036 • Oklahoma City OK 73152-3036 • (405) 416-7070

OBF SPONSOR:______m I/we wish to arrange a time to discuss possible cy pres distribution to the Oklahoma Bar Foundation and my contact information is listed above.

Many thanks for your support & generosity!

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2439 ACCESS TO JUSTICE

Legal Aid Pro Bono Outreach Projects Leveling the Playing Field for Victims of

Pro bono opportunities arranges child care, as need- come in many shapes and ed, and has a liaison avail- sizes. Case referrals are the able for consultation. most well known pro bono The project provides an opportunity; however, this invaluable service to violence doesn’t work for all attorneys. victims by providing quick Sometimes attorneys are access to legal advice in a prohibited from direct repre- secure setting. Jennifer Cluck, sentation due to current YWCA liaison, who has a employment or other obliga- deep understanding of the tions. Taking into account this project’s benefits to clients, as need for alternate scheduling, well as to shelter staff, Services of Okla- observes that, “The clients homa offers many flexibly have been very excited to be scheduled outreach projects able to talk to an attorney and other pro bono opportu- after entering the shelter. nities across the state — Access to legal advice relieves enabling attorneys to volun- meaningful work I’ve done stress for residents, as well as teer their time and expertise as a lawyer.” YWCA staff. To have a consis- to those who otherwise tent group of support for These days, Gail Stricklin would not have access to the these ladies helps to create focuses much of her time legal system. safety and justice for them in seeking to secure legislative One such outreach project a world in which they have changes regarding domestic was created in 1986 by Okla- had neither.” violence situations. Such homa City attorney Gail changes are needed to ensure The project is especially Stricklin. In collaboration the safety of those victims rewarding to the attorneys with Legal Aid and the who are trapped in especially involved. Laurie Jones, a YWCA, Ms. Stricklin crafted perilous situations. Ms. professor at OCU Law a partnership to support vic- Stricklin said, “Legal Aid pro- School, is a regular project tims of violence. Volunteer vides an invaluable service to volunteer. “The impact that attorneys meet in person violence victims; as research we as lawyers can make to with shelter residents on a studies from the University of help domestic violence vic- weekly basis. After a fright- Arkansas and Colgate Uni- tims is immediate, powerful ful escape from an abusive versity indicate that access to and far-reaching,” she said. situation, legal advice to legal services contributes “In 25 years of law practice, shelter residents can be cru- more to the decline in domes- the work at Passageway is cial, especially if children are tic violence than do other the most rewarding and involved. Shelter staff also

2440 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 sources such as shelters, danger of losing her life if she HOW YOU CAN HELP hotlines or counseling.” is unable to escape from her The generous donation of abuser. Ms. Stricklin has Ms. Stricklin’s most recent time and effort of pro bono offered pro bono representa- efforts in transforming Okla- attorneys throughout the tion to clients in this type of homa law have resulted in years has benefited many cli- dire situation. Many times, the passage of House Bill ents. Legal Aid Services of attempts to flee have been 1739, which provides more Oklahoma Inc. is a statewide unsuccessful, and the vio- protections for non-abusive program with offices assisting lence has escalated to a point parents and children involved every county. If you are inter- at which the danger of loss of in child custody and visita- ested in lending a hand with life is imminent. According to tion matters, including the an outreach project or would Ms. Stricklin, “These cases provision that a parent may like more information about require the extraordinary suspend visitation under cer- outreach projects, contact measure of seeking a sealed tain circumstances to protect Cindy Goble, statewide pro name change to safeguard the the children. bono coordinator, Legal Aid client and her children.” Services of Oklahoma Inc., Occasionally, a case comes by calling (405) 488-6823 or along in which a client is in e-mail at [email protected].

NOTICE: DESTRUCTION OF RECORDS Pursuant to Court Order SCBD No. 3159, the Board of Bar Examiners will destroy the admission applications of persons admitted to practice in Oklahoma after 3 years from date of admission. Those persons admitted to practice during 2005 who desire to obtain their original application may do so by submitting a written request and $25 processing fee. Bar exam scores are not included. Requests must by received by December 18, 2009. Please include your name, OBA number, mailing address, date of admission, and daytime phone. Enclose a check for $25, payable to Oklahoma Board of Bar Examiners. Mail to: Oklahoma Board of Bar Examiners, PO Box 53036, Oklahoma City, OK 73152.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2441 YOUNG LAWYERS DIVISION

YLD ELECTION RESULTS District No. 6); Joe Vorndran After breakfast was served, ANNOUNCED (Judicial District No. 8); Rick Rose called the group to The YLD Board of Directors Kaleb Hennigh (At Large – order to recognize the 2009 convened for its regular Rural); Jennifer Kirkpatrick YLD award recipients: (At Large); Jeff Trevillion monthly business meeting on YLD Fellows: (At Large); and Bryon Will Nov. 5, with Chairperson Rick Chief Justice James E. (At Large). Rose presiding over the ses- Edmondson sion. Immediate Past Chair- YLD PRESENTS AWARDS Vice Chief Justice Steven W. person of the division and AT ANNUAL BREAKFAST Taylor current YLD Nominating The YLD closed out the Committee Chairperson Kim- YLD Friend: 2009 Oklahoma Bar Conven- berly Warren announced the Candace Bass tion with its annual Friends results of the election for the and Fellows Breakfast. Fel- Outstanding YLD open YLD board positions. lows of the YLD are chosen Committee Chairpersons: The officers of the division annually from members of Cody J. McPherson for 2010 will be: Chairperson the OBA who are no longer (Wills for Heroes – Molly Aspan (Tulsa); young lawyers, but have Committee) Chairperson-Elect – Nathan served with distinction as a John D. Weaver Johnson (Lawton); Treasurer YLD officer, director or com- (New Attorney Orientation – Roy Tucker (Muskogee); mittee chairperson, or who Committee) Secretary – Jennifer Kirkpat- have otherwise demonstrat- Outstanding YLD Directors: rick (Oklahoma City); and ed their support of the divi- A. Gabriel Bass Immediate Past Chairperson sion and dedication to the Robert R. Faulk – Rick Rose (Oklahoma objectives of the YLD. Simi- City). larly, Friends of the YLD are Outstanding YLD Officer: named each year to recog- Roy D. Tucker New to the Board of Direc- nize those non-lawyers who tors in 2010 will be: Lane R. have contributed significant- Neal (Judicial District No. 3); ly to the division and its Collin R. Walke (Judicial many community service District No. 3); Robert Faulk projects. (Judicial District No. 4); Briana J. Ross (Judicial

The OBA/YLD sponsored Casino Night during the Annual Meeting, where hundreds of convention attendants tried their hand at blackjack, roulette and Texas hold ’em poker.

2442 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 Calendar November

26-27 OBA Closed — Thanksgiving Holiday 12 OBA Young Lawyers Division Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Rick Rose December (405) 236-0478 OBA Legal Intern Committee Meeting; 3 p.m.; 3 OBA Appellate Practice Section Meeting; Sneed Lounge; OU College of Law, Norman; Contact: 18 11:45 a.m.; Oklahoma Bar Center, Oklahoma City; H. Terrell Monks (405) 733-8686 Contact: Brian Goree (918) 382-7523 OBA Law-related Education Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa 25 OBA Closed – Christmas Holiday County Bar Center, Tulsa; Contact: Jack G. Clark Jr. (405) 232-4271 January 8 Death Oral Argument; Alfred Brian Mitchel; D-2008-57; 10 a.m.; Court of Criminal Appeals 1 OBA Closed – New Year’s Day Courtroom 8 OBA Family Law Section Meeting; 3 p.m.; Workers’ Compensation Public Hearing; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; 12:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Amy Wilson (918) 439-2424 Contact: Tish Sommer (405) 522-8710 14 OBA Leadership Academy; 8:30 a.m.; Oklahoma Bar 10 OBA Bench & Bar Committee Meeting; 12 p.m.; Center, Oklahoma City; Contact: Heidi McComb Oklahoma Bar Center, Oklahoma City and Tulsa County (405) 416-7027 Bar Center, Tulsa; Contact: Jack Brown (918) 581-8211 15 OBA Leadership Academy; 8:30 a.m.; Oklahoma Bar 11 OBA Board of Governors Meeting; 9:30 a.m.; Center, Oklahoma City; Contact: Heidi McComb Oklahoma Bar Center, Oklahoma City; Contact: John (405) 416-7027 Morris Williams (405) 416-7000 OBA Board of Governors Meeting; 8:30 a.m.; Oklahoma Council of Administrative Hearing Oklahoma Bar Center, Oklahoma City; Contact: John Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma Morris Williams (405) 416-7000 City and Tulsa County Bar Center, Tulsa; Contact: 18 OBA Closed — Martin Luther King Jr. Day Carolyn Guthrie (405) 271-1269 Ext. 56212 OBA Family Law Section Meeting; 3 p.m.; 20 Ruth Bader Ginsburg American Inn of Court; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; 5 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Contact: Amy Wilson (918) 439-2424 Donald Lynn Babb (405) 235-1611 21 OBA Law-related Education Committee 2010 Supreme Court Teacher and School of the Year Judging; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jack G. Clark Jr. (405) 232-4271 23 OBA Law-related Education We the People State Finals; 10 a.m.; Oklahoma History Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2443 February

12 OBA Family Law Section Meeting; 3 p.m.; PARALEGAL Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Amy Wilson (918) 439-2424 Get paid for what 15 OBA Closed — Presidents’ Day you’re worth . . . 17 OBA Law-related Education Close-Up; 8:30 a.m.; without Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 billable hours!

18 OBA Law-related Education Close-Up; 8:30 a.m.; W.C. Bradley Co., a 120+ year old Interna- Oklahoma Bar Center, Oklahoma City; Contact: Jane tional Consumer Products company, seeks a McConnell (405) 416-7024 qualifi ed paralegal for its Tulsa, Oklahoma OBA Law-related Education Close-Up Teachers offi ce. Reporting directly to the General Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma Counsel, this position will perform critical City; Contact: Jane McConnell (405) 416-7024 legal functions related to , research 19 OBA Board of Governors Meeting; 8:30 a.m.; and document preparation. Oklahoma Bar Center, Oklahoma City; Contact: John Requirements include a self-motivated team Morris Williams (405) 416-7000 player with 5+ years’ experience; completion 22-26 OBA Bar Examinations; Oklahoma Bar Center, of an ABA-accredited paralegal program is Oklahoma City; Contact: Oklahoma Board of Bar preferred. Qualifi ed candidates must have Examiners (405) 416-7075 solid contractual experience (preferably in a consumer products setting). Any merger and acquisition experience is a defi nite plus. Candidates must also have strong legal re- search skills and the ability to draft com- plex legal documents. Excellent computer, organizational, attention to detail, project management, written/verbal communication and prioritization skills are musts. The abil- ity to meet deadlines is critical. The General Counsel’s offi ce is a fast-paced environment that addresses many areas of the law, includ- ing regulatory, , risk management, litigation and international. Your expertise will be rewarded with an attractive salary/benefi ts package and a business casual work environ- ment. To apply, please send salary re- quirements, salary history and resume to [email protected]. EOE

2444 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 FOR YOUR INFORMATION

Judicial Appointments Announced Gov. Brad Henry recently named several attorneys to the bench. Judge William C. Hetherington Jr. has been appointed to the state Court of Civil Appeals. He succeeds Judge Glenn Adams, who retired last September. Judge Hetherington has been a district judge in Cleveland County since 1992. Before that, he served as a special dis- trict judge and was in private practice. He graduated from OU in 1970 and earned his law degree from OCU in 1979. Also, Lisa Tipping Davis was named a district judge in Judge William C. Oklahoma County. She succeeds Judge Carolyn Ricks, who Hetherington Jr. retired last October. Judge Davis served as the governor’s general legal counsel since 2003. Prior to that, she spent 11 years as an assistant attorney general. She also has worked in private prac- tice. She graduated from OU in 1981 and earned her law degree from the Judge OU College of Law three years later. Lisa Tipping Davis Additionally, two appointments were made to the 14th Judicial District in Tulsa County. The governor appointed Carlos Chappelle to Office 6 and Kurt G. Glassco to Office 14. Judge Chappelle succeeds Judge Gordon McAllister, while Judge Glassco succeeds Judge Michael Gassett. Both Judge McAllister and Judge Gassett retired from the bench. Judge Chappelle has practiced law in Tulsa for 28 years. He graduated from OU in 1973 and later earned his law degree from TU. Judge Glassco has been in private practice since 1986. Prior to that time, he was an assistant district attorney in Tulsa County before serving as general counsel for then- Judge Gov. George Nigh. He graduated from OSU in 1978 Judge Carlos Chapelle and earned his law degree from TU. Kurt G. Glassco

President’s Award Winners Recognized Along with the annual OBA awards presented during this month’s Annual Meeting, Presi- dent Jon Parsley named seven President’s Award winners. Honored were David Petty of Guymon, Bill Grimm of Tulsa, Stephen Beam of Weatherford, Melissa DeLacerda of Stillwater, Gary Clark of Stillwater, Linda Thomas of Bartlesville and John Morris Williams of Oklahoma City. All were recognized for their mentorship and guidance during President Parsley’s ten- ure as OBA president. Jon Parsley, David Petty, Bill Grimm, Stephen Beam and Melissa DeLacerda

Jon Parsley, Gary Clark and Linda Thomas

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2445 Lawyer Counseling Program Receives Grant The Lawyers Helping Lawyers Assistance Program was presented a $25,000 grant to support the treatment of lawyers struggling with addictions and mental health issues. Oklahoma City attorney Reggie Whitten of the Whitten- Newman Foundation presented the check during the OBA Annual Meeting earlier this month. Mr. Whitten said the grant was given in memory of his son Brandon, who became addicted to Valium at an early age and died in a drug-related motorcycle crash in 2002 at age 25. The OBA Lawyers Helping Lawyers Assistance Program has partnered with professional counselors throughout the state to provide up to six visits free of charge. There is also a peer support net- work in place to help attorneys though Reggie Whitten (second from left) presents a $25,000 specific issues. If you are an attorney check to the OBA Lawyers Helping Lawyers Assistance seeking help, call (800) 364-7886. Your Program. Pictured with Mr. Whitten are Jeffrey call is strictly confidential. Hargrave, Jon Parsley and LHLAP Committee Chair Tom Riesen.

Annual Meeting Giveaway Winners OBA Communications Team Announced Honored for Law Day PR Campaign The OBA held a drawing for free prizes dur- The OBA Communications Department ing the Annual Meeting. To enter the draw- recently brought home two awards to rec- ing, meeting registrants had to visit at least 20 ognize the team’s public relations work for exhibitor booths and have them initial a spe- Law Day. Communications Director Carol cial card. Names were drawn at the end of Manning and Communications Specialists the meeting. The winner of the Netbook is Melissa Brown and Jeff Kelton work close- Laurie Miller of Oklahoma City. The winner ly with the OBA Law Day Committee in of the Kindle is Elizabeth Wilson of Edmond, supporting the annual statewide student and Paul Kouri of Oklahoma City won an contests, Ask A Lawyer free legal advice iPod Touch. and one-hour TV show on OETA. For its efforts, the department won a OBA Member Reinstatement Luminary Award for Excellence in Public Relations from the National Association of The following OBA member suspended for Bar Executives Communications Section. nonpayment of dues has complied with the This national award is given for a public requirements for reinstatement, and notice is relations effort that exemplifies effective- hereby given of such reinstatement: ness of communications in getting the Brian Dean Dill bar’s message across to its members and OBA No. 15989 the public. Additionally, the Communica- 9728 Elmcrest Drive tions Department received an honorable Dallas, TX 75238 mention award in the special event category from the Public Relations Society OBA Member Resignation of America, Oklahoma City Chapter. The following OBA member has resigned as a member of the association and notice is hereby given of such resignation: Bar Center Holiday Hours Thomas Lynn Bright The Oklahoma Bar Center will be OBA No. 1131 closed Nov. 26 and 27 for the P. O. Box 182066 Thanksgiving holiday. Arlington, TX 76096

2446 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009

Volume 78 u No. 35 u Dec. 22, 2007

Court Material

Print or Family & Divorce Mediation Training Electronic? OKC • December 9 - 12 You now have Tulsa • December 2 - 5 a choice. Continue receiving your printed Oklahoma Bar Journal court issues (two per month) in the mail – or receive an e-mail with a link to the electronic version instead. Mailed Approved for 40 hours of MCLE credit copies stop. There’s no dues reduction, This course is lively and highly participatory and but you save some trees. will include lecture, group discussion, and If you want the electronic version of the simulated mediation exercises court issues and didn’t indicate that on Cost: $625 includes all materials your dues statement go online to http:// The Course for Professional my.okbar.org/Login and sign in. Click on Mediators in Oklahoma “Roster Info” to switch to electronic. This course fulfills the training requirements set forth Be sure your e-mail address is current. in the District Court Mediation Act of 1998 Want the print version? Contact: The Mediation Institute No need to do anything. (405) 607-8914 James L. Stovall, Jr. 13308 N. McArthur Oklahoma City, OK 73142

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2447 Network

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2448 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 BENCH & BAR BRIEFS

Senate before he can take the he Voice of the Defense position. TBar chose Kevin Driskill inda Crook Martin has to be on its board of directors. Lbeen elected to the 15- member board of regents of the American College of ov. Brad Henry appoint- Environmental Lawyers at Ged Jana Kay Wallace as its 2009 annual conference associate district judge for held in October in Portland, Pushmataha County. She Maine. She also chairs replaced Lowell Burgess Jr., the Regional Membership who retired. Judge Wallace Committee. ornbeek Vitali & Braun earned her bachelor’s degree haron Voorhees was HPLLC announces that from Southeastern Okla- Srecently re-appointed by B. Taylor Clark has become homa State University and Gov. Brad Henry as a com- an associate with the firm. earned her J.D. from OU. She missioner for the Oklahoma Mr. Clark received his B.A. previously handled civil Community Service Com- from the University of Ari- cases in private practice and mission. She has served on zona in 2005 and his J.D. also served as an assistant the commission since 2002 from TU in 2009. district attorney in Pushma- and her term runs through ainey, Ross, Rice & taha County. June 2011. RBinns announces it has ynne McGuire has been onald K. Shandy was changed its name to the Lnamed a special judge for Dinducted as a fellow of Rainey Law Firm. The Oklahoma County. She will the American College of new address is Hightower start the position Dec. 1. She Environmental Lawyers at Building, 105 N. Hudson, is a former assistant district its annual meeting in Port- Suite 650, Oklahoma City, attorney and the current land, Maine, last month. 73102; (405) 235-1356. CEO of Oklahoma Lawyers he Oklahoma Child Sup- adner & Little PLLC for Children. Tport Enforcement Associa- Lannounces that Roger K. ames G. Hamill was tion honored Judge Philip A. Eldredge has joined the Jrecently inducted into the Ross, Judge Carolyn Koger, firm as a member. He will Oklahoma Hall of Fame of Dorinda Morris and Clay practice real estate acquisi- City & Town Officials. He is Pettis with awards. Attorneys tion and development, con- the first attorney to be hon- assuming office in 2010 struction law, commercial ored by this foundation. include John M. Sharp, trea- law and general commercial litigation. . Michael McBride III surer; Dawn Zellner, parlia- D . was recently elected a mentarian; Sloan Wood, pres- onelle H. Ratheal PC national member of the ident-elect; Gary Newberry, Dannounces that Gabe board of directors of the Fed- board member; and Clay Pet- Perez and Jaime N. Ortiz eral Bar Association. His tis, past president. have joined the firm. The term will run through 2012. heodore Haynes was firm also announces the change of its name to Rathe- im Reese has been select- recently inducted into the T al & Associates PC. Mr. Perez ed to serve on the Langston University Athletic T practices in the areas of Edmond Sun’s editorial Hall of Fame. While an domestic and international board. undergrad at Langston, he was a two-sport letterman. family law litigation, immi- resident Barack Obama He played center on the bas- gration law and international nominated Sanford P ketball team and was a line- business law. Mr. Ortiz prac- Coats to be the U.S. attorney backer on the varsity football tices in the areas of domestic for the Western District of team. and international family law Oklahoma. Mr. Coats must litigation, domestic and be confirmed by the U.S. international adoption law, probate law and assisted

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2449 reproductive technology. environmental law, which aygan Pierce Chain Both Mr. Perez and Mr. Ortiz included serving as chief of Rannounces the opening graduated from OCU School the Environmental of her new practice at 106 N. of Law in 2009. Bureau. Custer Street, P.O. Box hillips Murrah PC he Lyons Law Firm 858, Weatherford, 73096; Pannounces that attorney Tannounces that G. Nash (580) 774-1414. Patrick L. Hullum has joined Lamb is of counsel for the ller & Detrich PC the firm’s litigation and trial firm. He received his law Eannounces that Phillip J. practice department. Mr. Hul- degree from the TU College Jennings has joined the firm lum practices litigation, pri- of Law. His primary areas of as an associate. He received marily in the areas of prod- practice are real estate, oil his J.D. from the TU College ucts liability, catastrophic and gas, contracts and con- of Law in 2008. He will prac- injury and insurance defense. struction law. tice estate and trust plan- He graduated from the OU tkinson, Haskins, Nellis, ning, probate, litigation and College of Law in 2003. ABrittingham, Gladd & commercial transactions. oerner, Saunders, Daniel Carwile announces that arber & Bartz announces D& Anderson LLP Rhiannon K. Thoreson, Bthe addition of Kenneth announces that Benjamin C. J. Andrew Brown and Jen- E. Crump Jr., Roger Gassett, Perrine and Kenneth T. nifer D. Ary-Hogue have Kelsey Pierce and Kurtis Short have joined the firm joined the firm as associates. Eaton. Mr. Crump received as associates. Mr. Perrine Ms. Thoreson graduated his J.D. from the TU College received his J.D. from the with honors from the TU of Law in 1986. He practices OU College of Law where he College of Law in 2009. Dur- contract disputes, employ- served as the managing edi- ing law school, she was ment issues, construction tor of the American Indian awarded the Order of the law, business and fami- Law Review. He will practice Curale Chair for academic ly law matters and serves as creditors’ rights and bank- success and distinguished an adjunct settlement judge ruptcy, and cor- service, an ABA/BNA for the U.S. Federal Court for porate and business law. Mr. Award for Excellence in the Northern District of Short received his J.D. from Health Law, the Robert C. Oklahoma and on the panel the University of Kansas Butler Jr. Award for Excel- of arbitrators for the Nation- School of Law where he was lence in Legal Scholarship al Forum. Mr. a staff editor and business and Writing and several Gassett received his J.D. manager of the Kansas Jour- CALI Awards for Excellence. from TU in 2009. He practic- nal of Law and Public Policy. She also served as executive es in the areas of domestic He will practice civil and editor of the Tulsa Law law and collections. Mr. commercial litigation, labor Review. She will practice Pierce received his J.D. from and employment law, and appellate advocacy and civil TU in 2009. While attending . litigation. Mr. Brown law school, he served as edi- ouglas N. Gould received his J.D. from TU in tor for the Tulsa Law Review. Dannounces the moving 2009. During law school, he He will practice business of his practice to 6303 served as articles editor for and commercial transactions, Waterford Blvd., Suite 260, the Tulsa Journal of Compara- corporate securities, business Oklahoma City, 73118; (405) tive and . He organizations, real estate 286-3338; Fax: (405) 848-0492; will practice insurance transactions and intellectual [email protected]. defense, civil litigation, med- . Mr. Eaton itchell Cohen has been ical malpractice defense and received his J.D. from OCU Mappointed general products liability. Ms. Ary- in 2008. While attending law counsel of the Illinois Hogue received her J.D. with school, he was a member of Department of Natural honors from OU in 2009. Phi Alpha Delta, the OBA Resources. He started his While in law school, she Law Student Division and legal career, after graduating served as an assistant man- was the law school chair on from TU, with the Tulsa aging editor for the Oklahoma the Student Senate. He will County District Attorney’s Law Review and was a Com- practice business and com- Office. Before this appoint- fort Scholar. She will practice mercial transactions, real ment, he was an assistant appellate advocacy and civil estate transactions and attorney general practicing litigation. corporate securities.

2450 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 ray Walker PC announces in areas including railroad, law, contracts and electronic Pthat Tyler P. Evans and employment and medical discovery. Lauren Madden Williams malpractice. Mr. Manning onner & Winters have joined the firm as asso- received his law degree Cannounces that Daniel ciates. Mr. Evans graduated from the OCU School of Carsey will join the Okla- from the OU College of Law Law in 1995. He practices homa City office. He will in 2009. He served as assis- general civil litigation focus on environmental, tant note editor of the Okla- including medical malprac- energy and business matters. homa Law Review and gradu- tice, trucking, construction, He earned his J.D. with hon- ated with honors. He will liens and . ors from TU. After graduat- work primarily in the energy eremy R. Fitzpatrick has ing, he clerked for Judge Earl law group. Ms. Madden Wil- Jjoined Kirkpatrick Oil S. Hines at the U.S. District liams graduated from TU Company as an attorney/ Court for the Eastern District College of Law, where she landman. of Texas. served as an articles research cimeca Law Firm cAfee & Taft announces editor of the Tulsa Law Sannounces that Anita Mthat Robert J. Joyce, Review. She will work in the Anthony McSweeney has Kathy R. Neal, Chris A. Paul, firm’s business law group. joined the firm as of counsel. Leanne G. Barlow, Chris K. ableGotwals announces She will practice in the area Miller, Sharolyn C. Whiting- Gthat Sarah Powers, of probate and oil and gas Ralston and David M. Win- Cesar Tavares and Melissa title examination. Additional- frey have joined the firm’s Taylor have been named ly, the firm recently relocated Tulsa office. Mr. Joyce practic- associates in the firm’s Tulsa to Central Tower of Williams es complex environmental, office. Ms. Powers graduated Square, Las Colinas Urban toxic and regulatory mat- from the TU College of Law Center, 5215 N. O’Connor ters. Ms. Neal practices labor where she was a member of Blvd., Suite 200, Irving, Texas, and employment law. Mr. Order of the Curule Chair, 75062; (972) 868-9144. Paul practices business and editor of the Tulsa Law oni D. Hennike complex transactional and Review and a member of the Tannounces that she has regulatory matters for busi- Delta Theta Pi law fraternity. moved to the position of nesses. Ms. Barlow practices From 2004-2006, she served coordinator of international estate and business continua- as a liaison assistant for the investments and arbitration tion planning. Mr. Miller is a Department of Homeland with Exxon Mobil’s law registered patent attorney Security U.S. Citizenship and department in Houston. She who practices intellectual Immigration Services in is a 1981 graduate of the TU property law. Ms. Whiting- Washington, D.C. Mr. Tava- College of Law. She has been Ralston is a trial lawyer res graduated from Harvard with Exxon Mobil since 1992 who practices labor and Law School. He was the sub- and has held two affiliate employment law. Mr. Winfrey missions editor of the Har- general counsel positions practices environmental, vard Latino Law Review as within the company. occupational health and safe- ty and transportation law. well as a member of the ignato, Cooper, Kolker & Ames Moot Court and the PRoberson PC announces Estate Planning and Child that Jonathan A. Zendeh Advocacy Clinical Programs. Del and S. Corey Stone have Ms. Taylor graduated from joined the firm as associates. the TU College of Law, Mr. Zendeh Del graduated where she was a member of from Baylor University in Order of the Curule Chair, 2004 and the OCU School of production editor of the Law in 2008. He will focus Tulsa Law Review and a his practice on civil defense. member of Phi Delta Phi. Mr. Stone is a graduate of itchell Cohen recently aura Eakens and Thom- the OU College of Law. He Mpresented “Ethical Con- Las Manning have joined received degrees in market- siderations during Parallel the firm of Holden Carr & ing, finance and computer Proceedings” at an environ- Skeens. Ms. Eakens received science from OSU. He will mental law training confer- her J.D. from TU. She prac- practice in the areas of insur- ence in Lincoln, Neb., for the tices general civil litigation ance defense, transportation

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2451 National Association of regulation, settlement Compiled by Rosie Sontheimer Attorneys General. barriers, increasing costs How to place an announce- and bankruptcy filings. hris A. Paul made a pre- ment: If you are an OBA Csentation on the subject imber J. Palmer spoke member and you’ve moved, of “Nanotechnology: Risks Krecently on the U.S. become a partner, hired an and Environmental Impacts” Constitution and the U.S. associate, taken on a part- to the Air & Waste Manage- judicial branch to municipal ner, received a promotion ment Association on Oct. 14 government officials from or an award or given a talk at the OSU-Tulsa campus. northern Mexico at an exec- or speech with statewide or He also made three presenta- utive forum of the Bi- national stature, we’d like to tions at the Association of National Center for Leader- hear from you. Information Oil Pipelines 2009 Business ship, Research and Educa- selected for publication is Conference held in San tion in Public Service, spon- printed at no cost, subject to Diego, Calif., in September. sored by Texas A&M Inter- editing and printed as space He was a presenter on the national University in Lare- permits. Submit news items subject of pipeline security do, Texas. She teaches con- (e-mail strongly preferred) in issues and a co-presenter for stitutional and business law writing to: - at the university. legal issues in pipeline integ Melissa Brown rity programs and environ- ohn R. Woodard III spoke Communications Dept. mental issues. Jto members and guests of Oklahoma Bar Association illiam B. Federman the American Association of P.O. Box 53036 Wwas chosen to speak at Subcontractors of Oklahoma Oklahoma City, OK 73152 a D&O roundtable discus- on Oct. 20 at the associa- (405) 416-7017 sion in Houston, Texas, in tion’s monthly meeting. The Fax: (405) 416-7089 or October. He discussed class presentation addressed how E-mail: [email protected] actions and how the class to stay out of court and what actions filed today are to do if you end up there – Articles for the Dec. 12 issue affected by anti-corporate as defendant or plaintiff. must be received by Nov. 27. sentiments, government

IN MEMORIAM

haron Carol Duke of County district attorney, and family law at his general SOklahoma City died Oct. assistant attorney general and practice in Tulsa and served 2. She was born January 26, at the community through pro 1965. She joined the bar in the Corporation Commission. bono work. Memorial dona- 2004 after graduating from He practiced oil, gas and tions may be made to the Oklahoma City University. and criminal law Arthritis Foundation or the arold Thomas Garvin Jr. at his private practice. Recent- American Heart Association. Hof Duncan died Nov. 9. ly, he served as an associate ay Lockwood Jones of He was born Oct. 6, 1946, in professor of law at the Uni- RCordell died Oct. 25. He Wichita Falls, Texas. He soon versity of Texas-San Marcos. was born April 3, 1944, and moved to Duncan where he ruce Harlton of Tulsa died graduated from the OU Col- graduated high school and BOct. 12. He was born Feb. lege of Law in 1969. After then attended Westminster 17, 1931. He served in the Air graduation, he served as an College. He enlisted in the Force and in the 125th assistant district attorney in U.S. Army during the Viet- Squadron of the 138th Air Frederick and Altus before nam War and was commis- National Guard during the going into private practice sioned as a 2nd Lieutenant. post-Korean Conflict and the with his father in Cordell. In After service, he earned his Cold War. He was admitted 1988 he was appointed dis- B.A. from OU and his J.D. to the bar in 1960 after gradu- trict judge of Oklahoma from OCU School of Law. He ating from the TU College of where he served until 1995. served as assistant Oklahoma Law. He practiced criminal Shortly after he left the bench

2452 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 IN MEMORIAM

he returned to private prac- obert (Bob) N. Naifeh of homas W. Perkins of tice. In his free time, he loved RNorman died Nov. 8. He TOklahoma City died Oct. watching OU football games was born April 1, 1921, in 19. He was born Oct. 22, 1929, with his family and friends. Covington, Tenn. In 1942, fol- in Shawnee. He earned his ames P. Linn of Oklahoma lowing the attack on Pearl undergraduate degree from JCity died Oct. 24. He was Harbor, and in his third year West Texas State University born April 21, 1926, in Spear- at OU, he enlisted in the U.S. and earned his J.D. from OCU man, Texas. At age 17, he Air Force. He was later School of Law in 1962. He enlisted in the U.S. Army. He assigned as an intelligence served for four years in the participated in several cam- officer to the 92nd Bomb U.S. Air Force and retired paigns in the European The- Group (Heavy) B-17’s at Pod- from the Federal Aviation ater of Operations with the ington, England, until VE Administration in Oklahoma Fighting 69th in World War Day. He returned to the U.S. City. He later did consulting II, and was honorably dis- as a Captain in late 1945. He in aviation. charged in June 1946. He put received his B.A. from OU in ayne B. Snow of Okla- himself through college at 1947 and his J.D. in 1950 from Whoma City died Oct. 4. Texas A&M and law school the OU College of Law. On He was born Dec. 23, 1920, in at the University of Texas. April 1, 2009, he was recog- Coalgate. During World War He began practicing law in nized by the OBA for his 60 II, he served in the 14th Air Spearman and moved to years of service to the bar. His Force (Flying Tigers) and Oklahoma City in 1969. He personal life also consisted of was attached to the Chinese was well known for his repre- community service. He American Composite Wing sentation of several celebrities served as deacon, trustee and under Gen. Chennault. He and of his representation of elder of the First Presbyterian was awarded two battle stars Oklahoma City’s National Church of Norman and was and the Distinguished Unit Cowboy & Western Heritage an active member of the India Citation for his involvement Museum when it was in dan- Temple Shriners’ Crippled in the China Defense and ger of failing financially. Out- Children’s Committee, OU China Offense. After the war, side of the law, he loved to Associates, OU Dads Associa- he attended the OU College quote Shakespeare and other tion, Norman Kiwanis Club of Law and earned his J.D. in poets and to surround him- and OU Alumni Association. 1947. He practiced law for 23 self with art and music — Additionally, he served on the years at Savage, Gibson, especially opera. Memorial Norman City Council and Benefield and Shelton, joined donations may be made to was assistant attorney general the Oklahoma Supreme Court Children’s Hospital Founda- of Oklahoma. Memorial con- staff as a legal assistant and tion, 800 Research Parkway, tributions may be made to the was awarded with the OBA Suite 150, Oklahoma City, Oklahoma Medical Research Distinguished Service as a 73104, or Special Care Inc., Foundation, 825 NE 13th St., Lawyer Award in 1992. 12201 N. Western, Oklahoma Oklahoma City, 73104. City, 73114.

Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2453 CLASSIFIED ADS

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2454 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 OFFICE SPACE POSITIONS AVAILABLE ATTY. OFFICE SHARING OKC N. CLASSEN LOCA- ASSOCIATE WITH 3-7 YEARS DEFENSE LITIGA- TION. First Fidelity Bank Bldg., 5100 N. Classen, First TION EXPERIENCE NEEDED by AV-rated Tulsa firm. floor. Single attorney office and reception area desk Insurance defense a plus. Very busy, fast-paced, ex- available (share kitchen/conference & storage). $500/ panding office offering competitive salary, health/life month. Contact Ann @ (405) 841-6807. insurance, 401k, etc. Send resume and writing sample (10 pg. max) in confidence via email to legalrecruit500@ POSITIONS AVAILABLE yahoo.com. ESTABLISHED OKLAHOMA CITY INSURANCE SEEKING PROFESSIONAL PARALEGAL FOR SMALL company seeks an Oklahoma licensed attorney to FIRM in downtown Oklahoma City, with at least 3 years serve as Special Counsel in their Oklahoma City Of- of insurance defense experience required. Please send fice. Applicants must be a graduate of an accredited resumes to “Box N,” Oklahoma Bar Association, P.O. law school with an active membership in the Okla- Box 53036, Oklahoma City, OK 73152. homa Bar Association and five (5) years experience in LEGAL SECRETARY/ACCOUNTING CLERK: Okla- the , with specialization in workers’ homa office of a national firm seeks an experienced compensation or property and casualty insurance. legal secretary with an accounting background. Respon- Company offers excellent benefits that include paid sibilities will include preparing documents, reception holidays, paid vacation and sick leave and a pretax coverage, answering phones as needed and performing benefit for health, dental and life insurance. Salary all tasks requested by supervising attorneys. Strong skills range $62,700 - $83,600 annually. EEO/AA Employer required in Microsoft Word, Excel, Outlook and typing Send resume to “Box Q,” Oklahoma Bar Association, 65+ wpm are required. Bank reconciliation, financial re- P. O. Box 53036, Oklahoma City, OK 73152. porting, and accounts receivable/payable experience DOWNTOWN OKLAHOMA CITY, AV RATED, prod- necessary. Salary commensurate with experience. Full uct liability and insurance defense firm seeks attorney benefit package. Mail resume and salary requirements with at least 5 years of experience. Please send resumes to: 117 Park Avenue, 2nd Floor, Oklahoma City, OK to “Box L,” Oklahoma Bar Association, P.O. Box 53036, 73120, or e-mail: [email protected]. Oklahoma City, OK 73152. ASSOCIATE ATTORNEYS: SMALL SOUTH TULSA LAW FIRM is looking for two associates, with 0-2 years CLASSIFIED INFORMATION experience for civil trial practice. Strong research, writ- ing and organizational skills are needed. Must be li- CLASSIFIED RATES: One dollar per word per inser- censed to practice law in Oklahoma. Starting salary is tion. Minimum charge $35. Add $15 surcharge per is- $50,000.00-60,000.00 annually. Please send Resume, sue for blind box advertisements to cover forward- References and Writing Sample to P. O. Box 700660, ing of replies. Blind box word count must include “Box Tulsa, OK 74170. ____ , Oklahoma Bar Association, P.O. Box 53036, Okla- homa City, OK 73152.” Display classified ads with bold ADVOCATE GENERAL: SERVES AS THE CHIEF AD- headline and border are $50 per inch. See www.okbar.org for MINISTRATIVE OFFICER, Advocate General, of the issue dates and Display Ad sizes and rates. Office of Consumer Advocacy for Oklahoma Depart- ment of Mental Health & Substance Abuse Services DEADLINE: Tuesday noon before publication. Ads must be (ODMHSAS). Serves as an advocate, not an attorney, prepaid. Send ad (e-mail preferred) in writing stating number for consumers receiving services from facilities operat- of times to be published to: ed by, subject to certification by or under contract with Jeff Kelton, Oklahoma Bar Association ODMHSAS. Requires: An attorney admitted to practice P.O. Box 53036, Oklahoma City, OK 73152 in the State of Oklahoma with a minimum of three (3) E-mail: [email protected] year’s experience. $65,000 - $82,225. ODMHSAS offers excellent benefit & retirement packages; reference Publication and contents of any advertisement is not #09-51 with job title and apply to address below with a to be deemed an endorsement of the views expressed copy of your most recent performance evaluation. Rea- therein, nor shall the publication of any advertisement sonable accommodation to individuals with disabilities be considered an endorsement of the procedure or ser- may be provided upon request. Application period: vice involved. All placement notices must be clearly non- 10/19/09 – 12/18/09. EOE. ODMHSAS - Human Re- discriminatory. sources, 2401 NW 23rd, Suite 85, OKC, OK 73107. Fax (405) 522-4817, [email protected].

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Vol. 80 — No. 31 — 11/21/2009 The Oklahoma Bar Journal 2455 THE BACK PAGE The Spare Office By B.J. Brockett

It seemed of little aged far beyond his not from our perspec- You see, Barney matter, but it would actual years. He was tive. As Barney continued, doom and reduce our overhead tall, about 6 feet, slim explained, it was his gloom are relative, by a few dollars. So and erect, a Lincoln- gloomy, depressive and when Bill comes here we were having esque figure, a man to outlook on life that on the scene, your this discussion (law- whom the ladies would be of greatest troubles, your woes yers like to call them might turn an eye but value to us. and disappointments conferences) about for his other charac- Barney, who could are soon reduced to a this strange, strange teristics of which I have excelled at claim fly-speck of nothing- beyond-eccentric fel- will later illuminate. denying but for a too ness. Bill, even though low, who, by my asso- Barney, the one tender heart, which not inquired, will ciate’s telling, was a with whom I confer- stood him not always soon ensconce you in man born at least 100 enced, met Bill when well, particularly in the true meaning of years past his time. they worked for an the practice of law, depression, for, as you His name was Bill, not insurance company. where tenderness of are quickly aware, a nickname, but his They were claim heart is more apt a lia- your troubles and true name. The name adjusters, or as Bar- bility than an asset, woes, disappoint- seemed harmless ney put it, “claim enlightened his prem- ments and depression enough; after all, at deniers.” He was tell- ise thus: A lawyer, in are nothing compared the passing I couldn’t ing me now how par- the natural course of to Bill’s. Bill, Barney think of anyone I had ticularly adept Bill his dealings, is often concluded, was the ever read or heard was at picking out the besieged with disap- personification of Joe about with the true tiniest fly-speck of a pointment — for Btfsplk, the cartoon name of Bill, who had reason for denying a every case won there character over whom raped, robbed, mur- claim, which stood is a loser, and you the dark cloud perpet- dered or pillaged, or him in good stead can’t always be on the ually hung, in the Li’l even been accused with his employer, winning side. On Abner comic strip. of such. and then, through those down days, And, having thus But this fellow of incessant, ceaseless, when the case is lost convinced ourselves whom we conferenced boring, haranguing, and all hope of rever- of his great value to was a lawyer and beating the hapless sal on appeal has us, we rented the could not have insured, who had faded, and the disap- spare office to Bill. He achieved middle age paid his premiums in pointed client has did not disappoint, without some tarnish innocent belief that announced your and over time his or transgression, or so someday, upon suffer- incompetence in open value appreciated, I did at the moment to ing an insured loss, he court, and worse, has and we grew fond of myself reason. Bill would be made whole refused to even reim- him so that years later was described as mid- again, into a pittance burse your out-of- we greatly mourned dle aged, although his of a settlement. Bill’s pocket expenses — his passing. actual age was never penchant for nit-pick- we, you and I, will Mr. Brockett practices fully disclosed, but as ing and claim denying have Bill. in Oklahoma City. I later learned to were not his most know him, he was valuable traits, at least

2456 The Oklahoma Bar Journal Vol. 80 — No. 31 — 11/21/2009 Snooze=lose

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