BAY MITCHELL, Judge.
¶ 1 Custodian/Appellant Erica Ann Butler
¶ 2 Prior to the birth of the child, Mother and Father had a sexual relationship, but were not a couple in a traditional sense. Mother lived with her boyfriend at the time, Joshua Guidroz. During her pregnancy, Mother told Father either he or Mr. Guidroz could be the father of the unborn child. C.M.B. was born December 1, 2008, and Mr. Guidroz was listed as the child's father on the birth certificate. Mother later filed a paternity action against Mr. Guidroz, but a paternity test revealed Mr. Guidroz was not C.M.B.'s father. Through an administrative proceeding initiated by Child Support Services, Father was ordered to take a paternity test in May 2010. Father was informed sometime in August or September 2010 that he was the biological father of C.M.B. Pursuant to an order entered by the Office of Administrative Hearings: Child Support, Father was ordered to pay child support to Mother beginning October 1, 2010. Father was not ordered to pay any back child support to Mother for the time period from C.M.B.'s birth through September 2010. Mother did not appeal this administrative order to the district court, and it was docketed in district court pursuant to 56 O.S.2011 § 237.10. Father filed a petition for joint custody on October 15, 2010 using the same district court case number assigned to the docketed administrative order.
¶ 3 The parties agree Mother was the sole care giver for C.M.B. from the time of birth until September 2010 (shortly after Father was informed he was the child's biological
¶ 4 Testimony at trial showed the parties generally agreed the physical custody arrangement was working well, but Mother and Father also agreed they had problems communicating with each other. Father felt that Mother made unilateral decisions regarding the minor child without consulting him while Mother felt like Father unnecessarily questioned her parenting skills. Both parents agreed it was in C.M.B.'s best interest if they were both involved in her life.
¶ 5 A guardian ad litem ("GAL") was appointed in this case. She presented her report at trial and also testified. Her initial recommendation was that joint custody would not work due to the lack of communication between Mother and Father. She recommended that Father be given legal custody of C.M.B. with each parent having equal physical custody. She based this decision on Father's willingness to work with Mother in parenting C.M.B. and his willingness to maintain C.M.B.'s relationship with her maternal family. The GAL also noted Mother's apparent hostility to having Father involved in C.M.B.'s life because the two fathers of her two other daughters were in no way involved in their lives. After hearing all of the evidence at trial, the GAL changed her recommendation and decided joint legal custody could work if Mother and Father could communicate with each other. The GAL testified that both Mother and Father were capable parents who had C.M.B.'s best interests in mind. At the conclusion of all the testimony and evidence, including a home study of Mother's house which found Mother's home to be safe, clean, and appropriate, the trial court awarded legal custody to Father but granted the parties equal physical custody of C.M.B. On appeal Mother argues the record does not support the trial court's decision to award legal custody to Father.
¶ 6 The trial court's order also deviated from the child support guidelines by reducing Father's obligation to Mother from the amount calculated by the guidelines of $661.29 per month to $400 per month. Testimony showed Mother works as a physical therapy assistant making approximately $9.00 per hour. Father has a high paying job with an oil field services company. The trial court imputed income to him of approximately $9,000 per month.
To support this deviation, the trial court's order stated:
At trial Father testified he could more easily afford to send C.M.B. to private Montessori school if his child support obligations were reduced. On appeal Mother's second proposition is that the trial court failed to comply with the mandate set forth in 43 O.S.2011 § 118H (B) requiring the trial court to justify any deviation with specific findings that such
¶ 7 In her answer to Father's petition for joint custody, Mother requested a judgment be entered representing the amount of child support Father owed from the time of C.M.B.'s birth in December 2008 through the time he began paying child support in October 2010. At trial Father argued, and the trial court agreed, Mother's claim was barred by res judicata because the matter had been settled in the administrative proceeding where Father argued Mother waived her right to any child support arrearages. Mother argues the record does not firmly establish the matter was litigated in administrative court and, even if it was, she did not knowingly waive her right to child support arrearages as she was unrepresented by counsel at the administrative level. Mother's third appellate argument is that the trial court erred in the denial of her request for payment for child support arrearages.
¶ 8 "On appeal, this Court will not disturb the trial court's judgment regarding custody absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence." Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863. The burden is on the appealing party to show that the decision is "erroneous and contrary to the child's best interests." Id. "Absent such a showing, the trial court's determinations are presumptively correct." Shaw v. Hoedebeck, 1997 OK CIV APP 69, ¶ 11, 948 P.2d 1240 (citing Carpenter v. Carpenter, 1982 OK 38, 645 P.2d 476). We give deference to the trial court in reviewing custody decisions because it "is better able to determine controversial evidence by its observation of the parties, the witnesses and their demeanor." Hoedebeck, 1997 OK CIV APP 69, ¶ 10, 948 P.2d 1240.
¶ 9 Mother argues the trial court awarded Father legal custody of C.M.B. to avoid having to require Father to pay child support to Mother and despite the fact he ignored his paternal obligations until he was required to submit to a paternity test per court order. Mother insists there was nothing in the record to show it was in C.M.B.'s best interests that Father be granted legal custody.
¶ 10 We disagree with Mother's interpretation of the facts and record. First, the trial court ordered Father to pay child support negating Mother's first argument. Second, the record does not show Father ignored his paternal obligations until ordered to submit to a paternity test. Rather, Father had little reason to suspect he was the father of C.M.B. even after Mother told him it was a possibility. Mother had been living with another man around the time of conception. This man was listed as the father on the birth certificate and a paternity suit had also been filed against him. We recognize there is no dispute that Father was not involved in C.M.B.'s life until she was approximately eighteen (18) months old, but once Father confirmed his paternity of C.M.B., by all accounts he became an active and involved parent.
¶ 11 Our review of the record shows the trial court placed great weight on its belief that Father was the best party to follow court orders and encourage a relationship with the other parent when deciding to grant legal custody to Father. Given our duty to defer to the trial court's consideration of witnesses and evidence, we cannot say this decision was clearly contrary to the weight of the evidence. We affirm the trial court's award of legal custody to Father.
¶ 12 Oklahoma law provides for a rebuttable presumption that the amount of
43 O.S.2011 § 118H (C). Under the child support guidelines, Father's child support obligation to Mother was $661.29 per month. The trial court reduced this amount to $400.00 per month but failed to make specific findings of fact justifying the deviation as required by 43 O.S.2011 § 118H (C). Thus, this portion of the trial court's order must be VACATED and REMANDED for a determination of whether such facts exist to support the deviation, and, if so, to articulate them as required by statute. See Kingery v. Kingery, 2011 OK CIV APP 122, ¶¶ 16-20, 270 P.3d 192 (reversing and remanding a child support order which deviated from the guidelines for omission of judge's signature and for not including factual findings explaining how the child support obligation was derived).
¶ 13 Mother's allegation the trial court erred by finding her claim for child support arrearages was barred by res judicata depends on whether the issue was or could have been litigated at the administrative level.
¶ 14 Mother argues the issue was not litigated at the administrative level and that she did not knowingly waive her right to child support arrearages because she was not represented by counsel at the time. Thus, she argues, the doctrine of claim preclusion cannot prevent her for making her claim at the district court. However, Oklahoma law does not support the pro se exception Mother argues. Pro se litigants are held to the same standard as an attorney. Funnell v. Jones, 1985 OK 73, ¶ 4, 737 P.2d 105. Further, Oklahoma's statutory child support enforcement scheme shows Mother was given the opportunity to litigate the issue of child support arrearages at the administrative level. Failing to do so bars Mother from later making her claim in district court.
¶ 15 The Oklahoma Department of Human Services ("DHS") is the state agency responsible for administering the child support enforcement program for the State of Oklahoma. 56 O.S.2011 §§ 237(A), 237.7(1). Oklahoma law gives DHS the authority to conduct child support enforcement administrative proceedings through the Office of Administrative Hearings: Child Support
¶ 16 The administrative order in the record is a pre-printed form with handwritten entries to complete the required information. The order confirms the paternity of Father and orders him to pay child support in the amount of $756.25 per month starting October 2010. Paragraph 8 provides a blank space for a judgment to be entered against Father for any past due support for the time period preceding October 2010. The term "N/A" is entered in this space. Whether this entry shows the issue was litigated before the administrative court and no support was ordered or whether it shows the issue was not presented at the administrative level is irrelevant. The issue could have been litigated at the administrative hearing.
¶ 17 We see no reason why an analysis similar to that applied in Feightner and Bostwick, supra, should not apply to the case at bar. The administrative order entered by OAH addressed the issues of paternity and support obligations and was thus a "final" order within the meaning of § 240.3(A)(1).
¶ 18 Oklahoma's child support enforcement scheme does not provide a statutory exception to giving OAH decisions preclusive effect. Rather, it establishes procedures to appeal from an adverse administrative decision, 56 O.S.2011 § 240.3(A)(1), and states such decisions "shall be enforced by the district court in the same manner as an order of the district court." Id. at § 237.10. These appeal procedures were the appropriate avenue for Mother to pursue judicial review of the denial of her claim for child support arrearages. See Feightner, 2003 OK 20, ¶ 18, 65 P.3d 624. The doctrine of claim preclusion, the purpose of which includes "conserv[ing] judicial resources and prevent[ing] inconsistent decisions," id. at ¶ 15, prohibits Mother from presenting the same issue in a different forum. Id. at ¶ 18. The trial court correctly barred Mother from relitigating the issue of child support arrearages in the district court action because the issue could have been litigated at the administrative level.
¶ 19 Consistent with the foregoing, the decision of the trial court is AFFIRMED IN PART, VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS consistent with this opinion.
BELL, P.J., and GOREE, J., concur.
