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Nelson v. Nelson2/3/1998
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
Two issues are presented: 1) whether Administrative Order CV-95-1 and 43 O.S. Supp. 1997 Section 107.2 which require divorcing parents with children to attend classes intended to help minors to cope with divorce are constitutional; and 2). whether, under the facts presented, the husband was entitled to have his timely-filed motion to vacate sustained. We find the administrative order and the statute do not violate constitutional standards of equal protection or due process nor do they constitute a prohibited delegation of the legislative authority. However, the cause must be reversed in part, because the father did not have notice that his rights to visitation were in jeopardy. Under the facts presented, the trial court abused its discretion by refusing to vacate the default judgment. The cause is remanded and the trial court is ordered to consider the father's application for visitation.
FACTS
On July 19, 1996, the plaintiff/appellee, Debbie D. Nelson (wife/mother), served the defendant/appellant, Richard E. Nelson (husband/father), with a petition for divorce. In the petition, the wife sought: custody of the couple's two minor children with the husband to have "reasonable visitation"; an award of child support and child care expenses computed in accordance with the Oklahoma Child Support Guidelines, 43 O.S. Supp. 1995 Section 118, et seq.; medical insurance and payment of a portion of any unpaid medical expenses of the children; an equitable division of marital property and debt; and attorney fees and costs. Because the husband believed that he and his wife were in the process of settling the issues presented in the divorce proceeding, he did not hire an attorney or file an answer.
Finding the husband in default, the trial court granted the divorce on November 4, 1996. Under the decree, the wife was given custody of the minor children, and the husband was denied visitation based on his failure to attend the course, "Helping Children Cope with Divorce." The husband was ordered to pay $611.16 monthly for child support and sixty-six percent of any child care expenses. He was also required to provide medical insurance for the children and to pay a portion of any uncovered medical expenses. The decree divided marital property between the parties and awarded the wife $5,000.00 in lieu of alimony as property division. Each party was directed to discharge the debt on vehicles awarded as their separate property. Finally, the husband was ordered to pay the wife's attorney fee of $550.00. It is undisputed that the only pleading served on the husband was the petition. In that filing, there was nothing to put the husband on notice that he could be denied visitation with his children.
On November 27, 1996, the husband filed a motion to vacate the judgment and decree of divorce. He asserted that: he did not file an answer because he believed that the property and child support issues would be settled; the child support awarded exceeded provisions of the Oklahoma Child Support Guidelines, 43 O.S. Supp. 1995 Section 118, et seq.; the division of property and debt was inequitable; and the decision to deny visitation based on his failure to attend the parenting seminar violated his right of association with his children and was not based on a consideration of the children's best interests.
A hearing on the motion to vacate was held on December 30, 1996, in which the husband requested that the decree be set aside as to all matters except for t
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