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Date: 02-11-2019

Case Style:

KELLEY P. KOHLER v. CAROLYNN L. CHAMBERS

Case Number: 2019 OK 2

Judge: Noma D. Gurich

Court: SUPREME COURT OF THE STATE OF OKLAHOMA

Plaintiff's Attorney: Kathleen M. Egan
T. Luke Barteux

Defendant's Attorney: David A. Guten,

Description:



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Kelley P. Kohler (Father) and Carolynn L. Chambers (Mother) are the biological parents of R.L.K., born April 17, 2012. Father filed a petition seeking to establish parentage in February 2014. On December 22, 2016, the parties entered an Agreed Decree of Paternity and Joint Custody Plan, which awarded the parties joint custody and equal visitation time with R.L.K.
2 On July 27, 2017, Father received an order from the Department of Defense Military Entrance Processing Station, directing him to report to initial active duty for training (IADT).1 Under this order, Father was required to complete nine (9) weeks of basic training at Fort Jackson, South Carolina, and an additional nineteen (19) weeks of advanced individual training (AIT) in Fort Lee, Virginia.2 During these periods of training, Father was not permitted to travel with his spouse and children.
3 In August 2017, Father filed a pleading entitled "Motion to Confirm Deployed Servicemember's Custodial Rights," urging application of the Oklahoma Deployed Parents Custody and Visitation Act (ODPCVA), 43 O.S.2011 150 to 150.10.3 Specifically, Father alleged that he was being deployed, as defined by the ODPCVA; and therefore, he was entitled under the Act to assign his custody/visitation rights with R.L.K. to his current spouse. Following an expedited hearing, the trial court sustained the motion, concluding twenty-eight (28) weeks of mandatory training qualified as deployment under the ODPCVA. Accordingly, the trial judge authorized Father's wife to exercise visitation with R.L.K. during his absence. A journal entry memorializing this decision was filed on August 25, 2017.
4 Mother promptly filed a motion to vacate the judgment, requesting the lower court to reconsider its decision. As her sole basis for relief, Mother argued that the trial judge erred as a matter of law by finding Father was a "deploying parent" as defined by the ODPCVA. The trial court denied Mother's motion, upholding its previous ruling that Father's absence pursuant to military orders entitled him to relief under the ODPCVA.
5 Mother appealed the trial court's original order finding Father's attendance of basic training and advanced individual training satisfied the definition of deployment. We retained the case to address this first impression question under the ODPCVA, and now reverse the lower court's ruling.
Standard of Review
6 To resolve the issue presented, we must analyze the ODPCVA and interpret its relevant provisions. When the Court examines a statute, our primary goal is to determine legislative intent through the "plain and ordinary meaning" of the statutory language. In re Initiative Petition No. 397, 2014 OK 23, 9, 326 P.3d 496, 501. Because the legislature expresses its purpose by words, the plain meaning of a statute is deemed to express legislative authorial intent in the absence of any ambiguous or conflicting language. Id. When evaluating statutory language for ambiguity, the Court considers whether the wording is susceptible to more than one reasonable interpretation. Id. Because statutory construction poses a question of law, the correct standard of review is de novo. Legarde--Bober v. Okla. State Univ., 2016 OK 78, 5, 378 P.3d 562, 564.
Analysis
7 Of course our paramount concern in any proceeding involving custody or visitation is the best interests of the child(ren). Birtciel v. Jones, 2016 OK 103, 7, 382 P.3d 1041, 1043. The sole legal question in this appeal is whether a military servicemember, who has received orders to report to basic training and advanced individual training, and is therefore temporarily separated from his or her children, is a "deploying parent" for purposes of the ODPCVA. Mother argues that the statute applies only to parents who have been "order[ed] to another location in support of combat, contingency operation, or natural disaster," and not those parents who receive orders solely to attend initial active duty for training. Father maintains his mandatory attendance of both training phases was the equivalent of "deployment" under the ODPCVA.
8 The Uniform Law Commission formally adopted the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) in July of 2012. According to the UDPCVA's Prefatory Note, the proposed enactment was designed to address unique issues which arise during the deployment of both civilian and military personnel, including: maintenance of the parent-child bond during a parent's temporary absence due to deployment; resuming normal custody and visitation following a service member's return from deployment; providing expedited procedures for resolving temporary custody arrangements due to the sudden impact of deployment orders; to prevent a deployed parent from being penalized as a result of serving his or her country; and fostering consistency and predictability among the states through application of uniform standards for deploying parents. Unif. Deployed Parents Custody & Visitation Act, Prefatory Note (2012). Very similar to early drafts of the UDPCVA, the ODPCVA was enacted by the Oklahoma Legislature during the 2011 session, and became effective May 26, 2011.4
9 In the event a parent is deployed and he or she seeks relief under the ODPCVA, the deploying parent is entitled to transfer his or her visitation rights to a step-parent, a designated family member, or another designated individual. 43 O.S.2011 150.3, 150.8.5 The Act also creates certain rebuttable presumptions, including that it is "in the best interests of the child" for a stepparent, designated family member or another designated person to exercise the deployed party's parental duties or visitation.6 43 O.S.2011 150.8(D)(1) and (2).
10 In order to invoke the ODPCVA's protections in the present case, Father was required to show he was a deploying parent. Title 43 O.S.2011 150.1(4) defines "deploying parent" as follows:
[A] legal parent of a minor child or the legal guardian of a child, who is a member of the United States Armed Forces, civilian personnel or contractor serving in designated combat zones and who is deployed or has been notified of an impending deployment.
(Emphasis added).Obviously to ascertain the foregoing question, we must ascertain whether Father was deployed or subject to an impending deployment. Section 150.1(5) sets forth the meaning of "deployment" under the ODPCVA:
[T]he temporary transfer of a servicemember in compliance with official orders to another location in support of combat, contingency operation, or natural disaster requiring the use of orders for a period of more than thirty (30) consecutive days, during which family members are not authorized to accompany the servicemember at government expense.
43 O.S.2011 150.1 (emphasis added)
11 It is undisputed Father was a servicemember and he received military orders requiring his temporary transfer for more than thirty days to another location; and during this period, Father's family members were not authorized to accompany him at government expense. Additionally, the parties agree Father was not acting in support of a "contingency operation" or "natural disaster." Thus, our inquiry is limited to whether Father's temporary transfer for basic training and advanced individual training was "in support of combat." However, the legislature did not define the phrase "in support of combat."
12 If we utilize the rudimentary meanings for the terms "in support of combat," the phrase takes on an exceptionally broad reading; in fact, virtually any service-connected activity occurring while combat operations are ongoing, could be construed as "in support of combat." Additionally, the Legislature's failure to specifically define the phrase is problematic in this case because of the overbroad application likely to result from a literal reading. As we noted in McClure v. ConocoPhillips Co., 2006 OK 42, 12, 142 P.3d 390, 395, the Legislature's failure to use a defined term in the Workplace Drug and Alcohol Testing Act created ambiguity requiring implementation of statutory rules of construction. A literal reading of "in support of combat" would be so overreaching as to create an absurd result not intended by the Legislature. See Hogg v. Okla. Cnty. Juvenile Bureau, 2012 OK 107, 7, 292 P.3d 29, 33 (explaining that this Court should "give a sensible construction when interpreting statutes and not presume that the legislature intended an absurd result."). Applying the aforementioned principles guiding statutory interpretation, we find 150.5 is ambiguous.
13 Our decisions recognize that if a statute is ambiguous, the Court may look to extrinsic sources to aid us in ascertaining its meaning. See, e.g., McClure, 12, 142 P.3d at 395; Cox v. Dawson, 1996 OK 11, 911 P.2d 272, 277 ("Having determined that the statute is unclear, we may resort to available sources of interpretative assistance to determine the Legislature's intent."). Although "combat" has not been specifically defined by Oklahoma legislation, several federal and state statutes defer to Section 112 of the Internal Revenue Code of 1986. The IRC defines "combat zone" as "any area which the President of the United States by Executive Order designates . . . as an area in which Armed Forces of the United States are or have engaged in combat." 26 U.S.C. 112(c)(2) (emphasis added). See 22 O.S.Supp.2018 973a (providing that veterans must provide proof that they served in a "combat zone," as defined in Section 112 of the IRC). Further, the IRC uses the phrase "serving in support of such Armed Forces" to mean that an individual is located "in an area designated by the President of the United States by Executive order as a 'combat zone.'" 26 U.S.C. 7508 (West) (emphasis added). According to these sources, it is clear that Father's training was not deployment for "combat" or "in support of combat."
14 Another consideration which bolsters our finding in this case is found in the Armed Forces Code definition of deployment. The term deployment is defined in 10 U.S.C.A. 991(b), and expressly excludes periods when a servicemember is "performing service as a student or trainee at a school (including any Government school)." 10 U.S.C. 991(b)(3)(A). Additionally, the Department of the Army has concluded that "[s]oldiers are not eligible for deployment until they have completed [basic training]/advanced individual training (AIT) or [Basic Officers Leaders Course]."7 Considering the phrase "in support of combat," in light of the federal statutes and Army Regulations, we find that Father's attendance of basic training and advanced individual training was not deployment pursuant to 43 O.S.2011 150.1(5).8

Outcome: We hold that Father was not a "deploying parent" because his temporary transfer was not "in support of combat, contingency operation, or natural disaster" as mandated by 43 O.S.2011 150.1. Thus, the trial court erred in sustaining Father's motion seeking to transfer his custody and visitation rights under the ODPCVA.

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Defendant's Experts:

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