Duke v. Duke

Summary

The Oklahoma Supreme Court affirmed a divorce decree awarding sole custody of the parties' child to the father. The Court held that review under the clear-weight-of-the-evidence standard requires the complete evidentiary record, including guardian ad litem materials relied upon by the trial court. Because the appellate record was incomplete, the Court declined to reassess the custody determination or the alleged consideration of the mother's fiancé's expunged domestic-abuse conviction.

Holdings

1. An appellate court reviewing whether a child-custody order is against the clear weight of the evidence must review all evidence used by the trial court in adjudicating custody.
2. When the complete evidence used by the trial court is not included in the appellate record, the clear-weight-of-the-evidence standard cannot be applied, and the district court's custody order must be affirmed when the parties had an opportunity to preserve the alleged error but failed to do so.
3. If mother's fiancé had an expunged domestic-abuse conviction, the conviction could not be used to create the rebuttable presumption under 43 O.S. § 112.2 because the expungement statute deemed the conviction never to have occurred.
4. Even assuming the trial court improperly considered evidence of the fiancé's prior conviction, reversal was not warranted on the incomplete record because mother could not establish prejudice in relation to all evidence considered by the trial court.

Questions Presented

1. Whether an appellate court reviewing a child-custody award under the clear-weight-of-the-evidence standard must review all evidence relied upon by the trial court.
2. Whether the absence from the appellate record of guardian ad litem reports and other evidence required affirmance of the custody decree.
3. Whether an expunged domestic-abuse conviction may be used to create the rebuttable presumption under 43 O.S. § 112.2.
4. Whether the trial court's consideration of evidence concerning mother's fiancé required reversal of the custody award.

Disposition

affirmed