text:
    The PEOPLE of the State of Colorado, Complainant, v. Michael P. ANDERSEN, Respondent.
    Nos. 99PDJ033, 99PDJ066, 99PDJ126.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    July 21, 2000.
   Opinion by

Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board members MADELINE A. COLLISON and KATHLEEN M. O’BRIEN, both members of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: ATTORNEY DISBARRED

This matter was heard on January 11, 2000, before the Presiding Disciplinary Judge (“PDJ”) and two hearing board members, Madeline A. Collison and Kathleen M. O’Brien, both members of the Bar. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado (the “People”) and David C. Little appeared on behalf of Michael P. Andersen (“Andersen”) who was also present. The People’s Exhibits 1, 2 and 3 and Andersen’s Exhibit A were admitted into evidence by stipulation. The PDJ and Hearing Board heard testimony from the People’s witnesses Patricia M. Marrison and Mary Lynn Elliott, and from Andersen’s witness Jay Michael Stranges. Andersen testified on his own behalf.

Two disciplinary matters pending against Andersen — Case No. 99PDJ066 and Case No. 99PDJ033 — were consolidated on November 16, 1999. Shortly before trial, the parties elected to consolidate Case No. 99PDJ126 into the other two matters so that all pending matters against Andersen could be addressed at the same hearing.

Default had previously entered in both Case No. 99PDJ033 and Case No. 99PDJ066. Upon Andersen’s motion, by Order dated January 4, 2000, the PDJ set aside the default in Case No. 99PDJ033. At the commencement of the hearing, Andersen moved that the PDJ also set aside the default in Case No. 99PDJ066. The People did not object; accordingly the PDJ set aside the default in Case No. 99PDJ066 and accepted respondent’s Answer filed in all three matters.

The PDJ and Hearing Board considered the exhibits and argument, the testimony of the witnesses, assessed the credibility of the witnesses, and made the following findings of fact which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Andersen has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 15, 1992, and is registered upon the official records of the Court, attorney registration number 22139. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

A. Case No. 99PDJ033

(1) The Trust Account Checks

Andersen met M. Patricia Marrison (“Mar-rison”) in the summer of 1997. At the time he was suffering from depression. Andersen worked for Mamson’s law firm in Colorado Springs, Colorado from July 1997 until February 16, 1999. Marrison acted as a mentor to Andersen. For a short period of time she allowed him to occupy a basement apartment in her home. Marrison considered Andersen to be a friend. From September 1998 to February 1999, because of a dispute with another of Marrison’s employees, Andersen worked for Marrison from his home.

By early 1999, Andersen was using alcohol and cocaine. On February 17, 1999, Andersen left Colorado Springs, Colorado. At the time, he intended to have one final fling in Las Vegas before he committed suicide. Pri- or to leaving Colorado, Andersen took three checks from Marrison’s law firm trust account checkbook without her knowledge or authority. He removed the checks from a section of the checkbook where they would not be readily noticed. Andersen placed Mamson’s signature on the checks using a signature stamp. Andersen was aware at the time he used the stamp that he did not have Marrison’s authority to do so. On February 17, 1999, Andersen negotiated one of the checks for $3,400. The check was drawn on the Marrison law office trust account which contained only client funds. Andersen knew the funds in that account did not belong to him. On February 22, 1999, Marri-son’s office received a call from a Las Vegas business requesting authorization to cash a trust account check for Andersen in the amount of $750. Marrison declined to authorize the payment, and examined the trust account checkbook and the trust account statements. She discovered that $3,400 had been withdrawn from the bank and that checks were missing from the trust account checkbook. She stopped payment on the missing checks.

At the time Andersen took the $3,400 from the trust account, Marrison was experiencing a period of personal financial hardship of which Andersen was aware. Andersen has not yet repaid the $3,400 to the trust account.

(2) Incidents of Failing to Appear

In September 1996, Andersen failed to appear at the arraignment of his client Michael Edward Mock although he was aware of the scheduling. Neither Andersen nor his client appeared for the rescheduled arraignment in October 1996. Consequently, an arrest warrant was issued for Andersen’s client.

Also in September 1996, Andersen entered his appearance in a criminal action on behalf of defendant S.J. Andersen failed to appear for the trial in December and again at the rescheduled trial date in February 1997. The court issued a contempt citation against Andersen for failing to appear. Andersen appeared for the contempt hearing and the court assessed fines and costs against him. After several resettings, the trial was set in May 1997 and Andersen again failed to appear to represent his client. Andersen’s client — who was a juvenile — proceeded without counsel.

In June 1997 Andersen failed to appear at a preliminary hearing on behalf of his client Christopher Ming Yuan. Andersen’s failure to appear resulted in the issuance of a contempt citation against him. Andersen failed to appear for the contempt hearing.

Also in June 1997, Andersen failed to appear for the arraignment of his client Buck Juanito Whatley. The court reset the arraignment and, on the same date, scheduled a hearing on a show cause order the court issued against Andersen for failing to appear. Andersen again failed to appear.

B. Case No. 99PDJ126

On March 15, 1999, while using alcohol, Andersen took a 1994 Pontiac Firebird automobile from a dealership in Las Vegas, Nevada, and drove the car to Los Angeles, California. At the time he took the vehicle he understood the car did not belong to him. The car was reported as stolen and Andersen was arrested and jailed by the Los Angeles police department. On April 9, 1999, Andersen pled no contest to a violation of the Cal. Vehiole Code § 10851(a) (West 2000), taking a vehicle without the owner’s consent, a felony. Andersen was placed on formal probation for a period of three years, was ordered to serve thirty-eight days and was given credit for time served.

II. CONCLUSIONS OF LAW

The Amended Complaint in Case No. 99PDJ033 alleges that Andersen violated § 18-5-102(l)(c), 6 C.R.S. (1999)(forgery) by knowingly using Marrison’s signature stamp to endorse checks on Marrison’s law office trust account, and that Andersen violated § 18-4 — 401, 6 C.R.S. (1999)(theft) by knowingly taking trust account cheeks and using one of them to withdraw $3,400 from the trust account without authorization. The Amended Complaint further alleges that Andersen’s violation of these statutory provisions provided grounds for discipline pursuant to C.R.C.P. 251.5, C.R.C.P. 251.5(b), and also violates Colo. RPC 8.4(b) and Colo. RPC 8.4(c).

Colorado Revised Statutes § 18-5-102, 6 (1999) provides:

(1) A person commits forgery, if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
(c) A deed, will, codicil, contract, assignment, commercial instrument, promissory note, check, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status;

The facts set forth in 99PDJ033 establish that Andersen engaged in conduct which satisfies each element of the crime of forgery. Andersen affixed the signature of another to a check knowing that he was not authorized to do so. He completed the check payable to himself in the amount of $3,400, presented it for payment and received funds from the account. In so doing, Andersen intended to deceive and defraud the entity to which the check was presented for payment, and he succeeded.

The Complaint also alleges that Anderson’s conduct “... violated ... C.R.S. 18-4-401, theft.” Colorado Revised Statutes § 18-4-401, 6 (1999) provides:
(1) A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and:
(a) Intends to deprive the other person permanently of the use or benefit of the thing of value; or
(b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit; or
(c) Uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use and benefit; or
(d) Demands any consideration to which he is not legally entitled as a condition of restoring the thing of value to the other person.

Colorado Revised Statutes § 18-5-102(1.5) 6 C.R.S. (1999) provides that “[f]or the purposes of this section, a thing of value is that of “another” if anyone other than the defendant has a possessory or proprietary interest therein.”

The Complaint does not specify which subsection of the criminal theft statute Anderson is alleged to have violated. C.R.C.P. 251.14 requires the Complaint to set forth clearly and with particularity the grounds for discipline and the conduct which gives rise to the charges. Pleading the general theft statute without identification of the specific subsection applicable to the conduct relied upon does not provide adequate notice to either the respondent or the PDJ and Hearing Board which statutory provision the respondent’s conduct is to be tested against. Notwithstanding the pleading deficiency, Anderson admitted in his Combined Answer and Response that the conduct alleged in the Complaint violated “criminal statutes.” Having admitted his conduct violated criminal statutes, the pleading deficiency in the Complaint does not alter the decision of the PDJ and Hearing Board.

Andersen’s conduct provides grounds for discipline under C.R.C.P. 251.5, C.R.C.P. 251.5(b), and violates Colo. RPC 8.4(b) and Colo. RPC 8.4(c). The fact that he took funds knowing he had no right to do so is sufficient to prove knowing misappropriation. Such conduct is commonly referred to as conversion, is usually plead as a violation of Colo. RPC 8.4(c) and almost always merits disbarment. See People v. Varallo, 913 P.2d 1, 10 (Colo.1996)(citing People v. Lefly, 902 P.2d 361 (Colo.1995)(lawyer’s knowing conversion of client funds almost always merits disbarment even if the funds are eventually replaced)).

Engaging in conduct which is shown to violate the forgery statute or the theft statute likewise almost always results in disbarment. See People v. Goldstein, 887 P.2d 634, 640 (Colo.1994)(attorney disbarred for forging a United States Bankruptcy Court judge’s signature, fabricating and forging two legal documents, and knowingly misrepresenting material facts to his employer on client matters); People v. Goens, 803 P.2d 480, 483 (Colo.1990)(attorney disbarred for forging estate representatives’ signatures and converting funds from estate to attorney’s own use).

The Complaint in Case No. 99PDJ126 alleges that Andersen violated Cal. Vehiole Code § 10851(a) (West 2000) which provides:

Theft and unlawful driving or taking of a vehicle.
(a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle ... is guilty of a public offense ...

California defines a violation of this statute as a felony. The Complaint in Case No. 99PDJ126 alleges that in violating Cal. Vehicle Code § 10851(a), Andersen’s conduct provides grounds for discipline under C.R.C.P. 251.5 and C.R.C.P. 251.5(b), and constitutes violations of Colo. RPC 8.4(b) and Colo. RPC 8.4(c). Andersen knew at the time he took the vehicle that it did not belong to him. By driving the vehicle to another state, Andersen established that he had the intent to permanently or temporarily deprive the owner of the possession of the vehicle. Andersen pled no contest to a violation of this provision. C.R.C.P. 251.20(h) provides that a plea of nolo contendere (no contest) is a conviction for purposes of attorney discipline. Conviction of a felony is conclusive proof that an individual has engaged in dishonest conduct and is, therefore, a violation of Colo. RPC 8.4(e).

Colo. RPC 8.4(b) prohibits lawyers from engaging in “criminal conduct that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Not all convictions of the criminal laws necessarily justify the conclusion that Colo. RPC 8.4(b) has also been violated. Although the line of demarcation between such crimes has not yet been clearly drawn, the taking of another’s property having substantial value without authorization exceeds the criteria required for such a violation. Such conduct is both dishonest and so lacking in trust as to place in serious question a person’s fundamental character and adversely reflects upon his fitness to practice law. Andersen’s California conviction provides grounds for discipline under C.R.C.P. 251.5(d) and constitutes a violation of Colo. RPC 8.4(b) and Colo. RPC 8.4(c).

The Complaint in case no. 99PDJ066 alleges four separate violations of Colo. RPC 1.3 and Colo. RPC 8.4(d). In all four matters, Andersen failed to appear at scheduled hearings, neglected his client’s matters and ignored the orders of the courts. Over a period of ten months, from September 1996 to July 1997, Andersen entered his appearance on behalf of his clients in criminal matters and repeatedly failed to appear for trials and hearings. In one case, Andersen’s juvenile client, who was particularly vulnerable, proceeded to trial when Andersen failed to appear. The potential for harm to each of his four clients arising from Anderson’s conduct is beyond question. Andersen’s conduct constitutes four separate violations of Colo. RPC 1.3 and Colo. RPC 8.4(d).

III. SANCTIONS/IMPOSITION OF DISCIPLINE

The PDJ and Hearing Board found that Andersen’s conduct constitutes a violation of duties owed to the profession and to the public. The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) (“ABA Standards ”) are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.

ABA Standard 4.42 provides:

Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

ABA Standard 4.11 provides:

Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.

ABA Standard 5.11 provides:

Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft;
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.

The Commentary to ABA Standards 5.11 further provides:

A lawyer who engages in any of the illegal acts listed above has violated one of the most basic professional obligations to the public, the pledge to maintain personal honesty and integrity. This duty to the public is breached regardless of whether a criminal charge has been brought against the lawyer ... [i]n imposing final discipline in such cases, most courts impose disbarment on lawyers who are convicted of serious felonies.

Andersen’s conduct meets the criteria under ABA Standards 4.42 (the neglect of Andersen’s four clients), 4.11(conversion of the trust account funds) and 5.11 (engaging in criminal conduct).

Andersen knowingly converted client funds and caused injury to Marrison and the clients whose funds were held in her trust account. Colorado case law consistently holds that when a lawyer knowingly converts client funds, disbarment is “virtually automatic,” at least in the absence of significant factors in mitigation. People v. Young, 864 P.2d 563, 564 (Colo.1993) (knowing conversion of clients’ funds warrants disbarment even absent prior disciplinary history and despite cooperation and making restitution). See also People v. Motsenbocker, 926 P.2d 576, 577 (Colo.1996)(disbarring attorney pursuant to conditional admission of misconduct for the attorney’s misappropriation of bar association funds in the amount of $2,350 while serving as treasurer even though attorney repaid funds and other mitigating factors were present). In People v. Guyerson, 898 P.2d 1062, 1063 (Colo.1995) the attorney was disbarred for converting large amounts of law firm and client funds by fraudulent billing practices. The respondent in Guyerson “not only wrongfully converted firm property, but [his conduct] also resulted in conversion of client funds, regardless of his intention.” Id. at 1063. See also People v. Finesilver, 826 P.2d 1256, 1258 (Colo.1992)(disbarring the attorney and holding that “[t]hievery and deception on the part of a lawyer corrupt and betray the relationships between lawyer and client and between the legal profession and the public.”); People v. Whitcomb, 819 P.2d 493 (Colo.1991) (conversion of trust funds warrants disbarment); People v. Mulligan, 817 P.2d 1028 (Colo.1991) (attorney disbarred for conversion of client funds); People v. Grossenbach, 814 P.2d 810 (Colo.1991) (conversion of client funds and knowing deception of clients warrants disbarment); People v. Quick 716 P.2d 1082, 1086 (Colo,1986)(approving the parties’ conditional admission of misconduct and disbarring attorney for, among other things, theft of client’s money). But see People v. Lujan, 890 P.2d 109, 110 (Colo.1995)(attorney suspended rather than disbarred where attorney stole funds from her law firm but the Court found certain extraordinary and tragic factors in mitigation, including the sudden emergence of a mental disorder that caused the misconduct).

Similarly, case law suggests that Andersen’s use of Marrison’s signature stamp to negotiate the stolen trust account checks warrants disbarment. See People v. Jackson, 943 P.2d 450, 456 (Colo.1997)(disbarring the attorney for submitting fraudulent documents to a lender with the intention of inducing the lender to lend money, resulting in the lender’s relying on the fraudulent representations); People v. Goldstein, 887 P.2d 634, 642 (Colo.1994)(disbarring attorney for felony offense of forging federal bankruptcy court judge’s signature and dishonest and deceitful behavior in handling of legal matters, notwithstanding claims that alleged mental condition of success neurosis contributed to misconduct); People v. Rice, 728 P.2d 714, 715 (Colo.1986) (disbarring attorney for practicing while under suspension and for the felony of forgery based on forging his deceased mother’s name to several of her social security checks).

Andersen’s counsel requested that the PDJ and Hearing Board impose a “conditional disbarment” on Andersen for a period of time, allow Anderson to continue practicing law for the purpose of allowing Andersen to demonstrate his intention to rehabilitate himself and his commitment to recovery. The rules regarding attorney discipline do not authorize a “conditional disbarment.” The structure of the system requires disbarment upon a showing of sufficiently grievous conduct. If, after the passage of not less than eight years, the offending lawyer desires to be readmitted to the practice of law, a subsequent proceeding is required in which the offending lawyer must prove that he has successfully retaken the bar examination and that he is rehabilitated before he is readmitted to the practice of law. Imposition of the requested “conditional disbarment” would eliminate those requirements and is contrary to the intent underlying the structure of the system. In light of the present facts and in accordance with the requirement to protect the public, the PDJ and Hearing Board find that disbarment is warranted and required. The acts in which Andersen knowingly engaged demonstrate that he is both dishonest and not sufficiently trustworthy to practice law. The public would be placed at continuing risk if he were allowed to do so. A lesser sanction would simply not comport with the principles of the legal profession nor with prior case law for similar misconduct.

The PDJ and Hearing Board considered aggravating and mitigating factors pursuant to ABA Standards 9.22. Andersen had one prior letter of admonition in 1997 for conduct unrelated to the facts in this case, id. at 9.22(a); he had a dishonest and selfish motive when taking the trust account checks, forging Marrison’s signature, using the client funds for his own purposes, and taking a vehicle that did not belong to him; id. at 9.22(b); Andersen demonstrated a pattern of misconduct in both the neglect of his clients, the forgery of the checks, the conversion of the client funds, and the taking of the vehicle, id. at 9.22(c); he committed multiple offenses, id. at 9.22(d); and at least two of the victims who were impacted by Andersen’s behavior were vulnerable, Marrison and his juvenile client; id. at 9.22(h).

The PDJ and Hearing Board considered factors in mitigation pursuant to ABA Standards 9.32. Andersen suffered from depression during the time period in question, id. at 9.32(c), and he made full and free disclosure to the disciplinary board and demonstrated a cooperative attitude toward the proceedings, id. at 9.32(e). It should be noted in this regard that Andersen flew from California where he is presently employed as a paralegal in a law firm to attend the hearing. Andersen suffered from physical impairment arising from cocaine and alcohol abuse, id. at 9.32(h), and he demonstrated remorse for his conduct, id. at 9.32(i).

Andersen is committed to his rehabilitation through his affiliation with a recovery program in California. He has remained drug and alcohol free since July 25, 1999 and intends to remain so. Although the factors in mitigation are substantial, they are insufficient to reduce the presumed sanction of disbarment. They do, however, at least in part, suggest that Andersen has begun the process of rehabilitation. C.R.C.P. 251.29.

TV. ORDER

It is therefore ORDERED:

1. Michael P. Andersen, registration number 22139, is DISBARRED from the practice of law effective thirty-one days from the date of this Order, and his name shall be stricken from the roll of attorneys licensed to practice law in this state;
2. Andersen is ORDERED to pay the costs of these proceedings;
3. The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Respondent shall have ten (10) days thereafter to submit a response thereto;
4. Prior to the submission of any Petition for Readmission pursuant to C.R.C.P. 251.29, Andersen shall pay to Patricia Marrison the sum of $3,400.00 plus statutory interest from February 17, 1999.

      . Case No. 99PDJ126 had been filed on December 15, 1999, only twenty-eight days before trial. By moving to consolidate this matter into the other two matters, respondent agreed to waive: the sixty day notice of trial pursuant to C.R.C.P. 251.18(a); the right to discovery; the right to file an Answer within twenty days of service of process; the right to adequate trial preparation time; the right to object to the hearing board members, and waived all other jurisdictional grounds. The respondent stipulated he was prepared to proceed.

      . Andersen requested that his Answer in Case No. 99PDJ126 be amended to state under Claim II "The Respondent admits that his conduct amounted to neglect of the representation of his client in violation of Colo. RPC 1.3 and violated the provisions of Colo. RPC 8.4(d).” The People requested that the Complaint in Case No. 99PDJ126 be amended to allege a violation of the Cal. Vehicle Code § 10851(a) (West 2000) instead of § 1085(a). Andersen did not object and the PDJ granted both the People’s and the respondent's Motions to Amend.

      . Based upon his conduct in the Marrison matter, Andersen was immediately suspended from the practice of law by the Colorado Supreme Court on March 25, 1999.

      . C.R.C.P. 251.5 provides that misconduct by an attorney ... including the following acts or omissions, shall constitute grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship: (b) Any act or omission which violates the criminal laws of this state or any other state, or of the United States; provided that conviction thereof in a criminal proceeding shall not be a prerequisite to the institution of disciplinary proceedings.

      . C.R.C.P. 8.4 states: It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

      . § 18-5-102(2), 6 C.R.S. (1999) provides that forgery is a class 5 felony.

      . Conviction of a felony is a serious offense which C.R.C.P. 251.8 recognizes as presenting a sufficient threat to the public so as to constitute grounds for the immediate suspension of a lawyer’s license to practice law.

      . Colo. RPC 1.3 provides: A lawyer shall act with reasonable diligence and promptness in representing a client.

      . Colo. RPC 8.4 provides that it is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice.

      . The Complaint in Case No. 99PDJ066 neither alleged that the clients suffered harm nor that Andersen abandoned them.

      . Andersen’s counsel acknowledged that the rules do not expressly provide for a "conditional disbarment.”


source: Caselaw Access Project

author: OPALA, J.

license: Public Domain

text:
    2002 OK 67
    Jesse G. CONTEREZ, Plaintiff-Appellant, v. Terry S. O’DONNELL, Real Party in Interest-Appellee.
    No. 95,759.
    Supreme Court of Oklahoma.
    Sept. 10, 2002.
    As Corrected Sept. 18, 2002.
    Rehearing Denied Nov. 19, 2002.
    Glenn R. Beustring, Glenn R. Beustring and Associates, Tulsa, Oklahoma, and Joan Godlove, Tulsa, OK, for appellant.
    Joseph A. Sharp, Karen M. Grundy, Catherine L. Campbell, Matthew B. Free, Best & Sharp, Tulsa, OK, for real party in interest/appellee.

      . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

   OPALA, J.

¶ 1 The sole dispositive issue tendered on certiorari is whether the Court of Civil Appeals [COCA] erred in dismissing sua sponte the plaintiffs appeal. We answer in the negative. Although certiorari review results in the same disposition as that reached by COCA, today’s dismissal is rested on different grounds.

I

THE ANATOMY OF LITIGATION

¶ 2 The plaintiff, Jesse G. Conterez [Con-terez or plaintiff], brought a medical malpractice action against two defendants. During the course of discovery, Conterez’s counsel deposed a pathologist (not a party in the case) who had examined the plaintiff. Terry O’Donnell [O’Donnell] acted as the physician’s counsel at the deposition hearing.

¶ 3 A dispute arose between O’Donnell and plaintiffs counsel concerning the scope of his client’s deposition examination, the questions that could be asked of the witness and related issues. O’Donnell instructed his client not to answer certain questions and then adjourned the deposition hearing. Plaintiffs counsel later invoked the provisions of 12 O.S.2001 § 3230(E)(1) to move for sanctions against O’Donnell. The trial court denied the quest for sanctions by order entered 25 April 2000. Nearly eight months later the parties entered into an agreement that settled the claim for $500,000.00 and the cause was voluntarily dismissed by order entered 19 December 2000. In another order entered the same day the court recites that Conterez “desires to pursue his appellate rights arising out of’ the April 25 denial of sanctions. The appeal from denial of sanctions was brought 17 January 2001.

¶ 4 COCA dismissed the appeal sua sponte on two grounds: (a) the appeal time had expired thirty days after the denial’s entry (and proceedings subsequent to the entry would not operate to extend that statutory time limit) and (b) the plaintiff lost standing as an aggrieved party to claim harm from the denial because his interest in the sanctions’ enforcement came to be extinguished by the settlement of the principal tort claim.

¶ 5 We granted certiorari upon the plaintiffs petition. For the reasons to be explained in Parts II and III, we now vacate COCA’s opinion and order the appeal dismissed.

¶ 6 The plaintiff argues on certiorari that (a) his petition in error was timely filed because the express and implicit terms of 12 O.S.2001 § 993(A)(5) give him the option either of taking an immediate appeal from that part of the April 25 order which refused to direct the payment of money pendente lite or of awaiting the final determination of his medical malpractice action to bring an appeal, (b) he reserved the right to appeal the sanctions’ denial at the settlement of the medical malpractice claim, (c) COCA erred (in its sua sponte dismissal of the appeal) by not first calling for additional briefs or a show-cause response and lastly, (d) the trial court abused its discretion by refusing to award sanctions for O’Donnell’s discovery misconduct.

II

THE DENIAL OF DISCOVERY-RELATED SANCTIONS IS NOT AT ONCE APPEALABLE

¶ 7 A mid-litigation sanction against a lawger (rather than a party) for discovery-related misconduct is appealable, Appeal time begins to run from the date of the sanctions’ entry upon the court’s record. Although a nonpartg is deemed aggrieved at once by a sanctioning order, Oklahoma jurisprudence is silent on the appealability of mid-litigation denial of discovery-related sanctions. Federal jurisprudence on this issue is instructive. Generally, the denial of discovery-related sanctions is not considered final until the district court litigation comes to an end. This is so because the trial court is not bound by, and may hence reconsider, all of its mid-litigation rulings at any time before the case comes to an end.

¶ 8 The April 25 denial fails to meet the two-prong finality test for appealability of prejudgment orders under the provisions of 12 O.S.2001 § 953. The order refusing to sanction the witness’ lawyer neither conclusively settles the nonsanctionability of the lawyer’s actions nor does the ruling’s effect leave the aggrieved party plaintiff without any further relief at nisi prius. In sum, a sanction’s denial is interlocutory in character and subject to reconsideration before entry of a final order or judgment.

¶ 9 We therefore conclude and hold that the April 25 denial of § 3230(E)(1) sanctions against O’Donnell was not at once ap-pealable.

Ill

ALLEGED ERROR IN THE SANCTIONS’ DENIAL, THOUGH INCHOATELY REVIEWABLE, STANDS MOOTED HERE FOR WANT OF ANY AP-PEALABLE DECISION IN THE CASE WHICH FOLLOWS THAT DENIAL

¶ 10 All prejudicial error that stands preserved by the record through an intermediate order or proceeding that precedes any appealable decision is inchoately reviewable together with all other eirors asserted to be present in the appealable disposition before the court. This common-law concept of reviewability is explicitly embodied in the terms of 12 O.S.2001 § 952(a). An aggrieved party has the unquestionable right to secure review of every preserved prejudicial error committed at nisi prius in the course of proceedings which precede an appealable decision.

¶ 11 Although error in denial of discovery-related sanctions is a reviewable issue that no doubt stood preserved by the record, the post-denial course of litigation failed in this case to produce an appealable order in the context of which the denial’s error could be presented for corrective relief (together with other errors and those asserted to be present in the appealable order). This is so because the action’s voluntary termination did not result in an appealable order but rather operated to extinguish the inchoately reviewable feature of the April 25 denial. The action’s dismissal, which merely recites the parties’ agreement, lacks the attributes of appealability. Appeals are triggered neither by renewable errors nor by an agreement of the litigants but solely by orders defined by statute to be subject to immediate appellate scrutiny. There is here no disposition that would sustain an appeal.

¶ 12 In sum, the plaintiff can secure no corrective relief from the sanction’s denial for want of any appealable disposition in the case which followed the denial’s entry.

IV

SUMMARY

¶ 13 Alleged error in the sanctions’ denial stands mooted and its reviewability extinguished by the absence of an appealable decision in the case which follows the error’s occurrence. The appeal must hence be dismissed for want of an appealable disposition from which it may be prosecuted. The district court litigation came to an end by an order that memorialized the parties’ settlement agreement but failed to constitute an appealable post-denial decision.

¶ 14 On certiorari granted upon the plaintiffs petition, the Court of Civil Appeals’ opinion is vacated and the appeal is ordered dismissed for want of an appealable order.

¶ 15 HARGRAVE, C.J., HODGES, LAVENDER, KAUGER, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

¶ 16 WATT, V.C.J., concurs in result.

      . The pertinent terms of 12 O.S.2001 § 3230(E)(1) are:
      1. Any objection to evidence during a deposition shall be slated concisely and in a nonargu-mentative and nonsuggestive manner. A party may instruct a deponent not to answer only where the information sought is not discoverable by law, when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, to present a motion under paragraph 2 of this subsection, or to move for a protective order under subsection C of Section 3226 of this title. If the court finds a person has engaged in conduct which has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.
      (emphasis added).

      . Another December 19th order also directed the court clerk to amend the caption of the cause by eliminating the named defendants and substituting the name of Terry S. O’Donnell as real party in interest. The new caption is reflected in this opinion on certiorari.

      .The terms of 12 O.S.2001 § 993(A)(5) are:
      A. When an order:

      5.Directs the payment of money pendente lite except where granted at an ex parte hearing, refuses to direct the payment of money pendente lite, or vacates or refuses to vacate an order directing the payment of money pen-dente lite;

      the party aggrieved thereby may appeal the order to the Supreme Court without awaiting the final determination in said cause, by filing the petition in error and the record on appeal with the Supreme Court within thirty (30) days after the order prepared in conformance with Section 696.3 of this title, is filed with the court clerk....

      . Although every court must inquire sua sponte into its own jurisdiction, concerns for due notice to the parties and for undue surprise counsel that, unless the issue of cognizance has been raised, the question should be resolved only after the litigants have had an opportunity to submit briefs on the sua sponte inquiry the court wishes to undertake. Whitehead v. Tulsa Public Schools, 1998 OK 71, ¶0, 968 P.2d 1211; Gilliland v. Chronic Pain Associates, Inc., 1995 OK 94, ¶ 5 n. 5, 904 P.2d 73, 75 n. 5; Woody v. State, ex rel. Dept. of Corrections, 1992 OK 45, ¶ 2, 833 P.2d 257, 258; Lambert v. Town of Stringtown, 1992 OK 103, ¶ 1, 834 P.2d 955; Fields v. A & B Electronics, 1990 OK 7, ¶ 4, 788 P.2d 940, 941; Grant Square Bank & Trust Co. v. Werner, 1989 OK 126, 782 P.2d 109, 110; Anderson, Clayton & Co. v. First Am. Bank of Erick, 1980 OK 78, ¶ 14, 614 P.2d 1091, 1095. See also City of Lawton v. Intern. Union of Police, 2002 OK 1, ¶ 3, 41 P.3d 371, 374. Because adequate briefing opportunity was afforded by this court on certiorari, we do not view COCA’s failure to give notice to warrant our consideration as dispositional error.

      . Hammonds v. Osteopathic Hosp. Founders Ass'n, 1996 OK 54, ¶ 4, 917 P.2d 6, 7, teaches that an order imposing sanctions upon counsel, who is not a party in the case, is appealable as final (under the provisions of 12 O.S.1991 § 953) if it conclusively determines the issue of sanction-ability and sets the amount that stands imposed. This view accords with that of the U S. Circuit Court of Appeals for the Ninth Circuit. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1508 n. 8 (9th Cir.1987) (“An order imposing sanctions upon counsel, a nonparty, is final and appealable by the person sanctioned upon imposition of the sanction”). The court states in Hammonds that had the sanctioned lawyer been a party to the action, the nisi prius sanctioning order would still be appealable as an interlocutory order for payment of money pendente lite (12 O.S.2001 § 993(A)(5)), (supra note 4). Id. at ¶ 4, at 7.

      . Whenever Oklahoma Discovery Code provisions closely parallel those in the Federal Rules of Civil Procedure, federal jurisprudence on related issues is to be deemed instructive. See in this connection Payne v. DeWitt, 1999 OK 93 ¶ 8, 995 P.2d 1088, 1092 (§ 3237(B)(2) of the Oklahoma Discovery Code follows the terms of FRCP 37 in describing the range of sanctions a court is permitted to employ). Because the provisions of 12 O.S.2001 § 3230(E)(1) are virtually identical to their federal counterpart, FRCP 30(d)(1) and (3), we will look to federal jurisprudence for assistance in dealing here with the trial court’s denial of discovery-related sanctions.

        .McCright v. Santoki, 976 F.2d 568 (9th Cir.1992), teaches that a denial of Rule 11 sanctions is not final within the meaning of 28 U.S.C. § 1291 because not only will litigation on the merits follow but the court may reconsider its denial and decide, upon a renewed motion (or sua sponte), to impose sanctions. According to McCright, a party may appeal the sanctions’ denial after there has been a final decision in the underlying lawsuit. Id., citing Giebelhaus v. Spindrift Yachts, 938 F.2d 962, 964 (9th Cir.1991) (the court reviewed a. post-judgment denial of Rule 11 sanctions against defendants' lawyer). In Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1107 (9th Cir.1990), (the court reviewed a Rule 11 sanctions’ denial as one of several issues upon the litigation’s termination). In Buchanan v. U.S. 82 F.3d 706, 708 (7th Cir.1996), the court notes that although a sanctions order is collateral to the merits, a denial of sanctions cannot be considered final within the meaning of 28 U.S.C. § 1291 until the district court litigation is at an end. See also Matei v. Cessna Aircraft Co., 35 F.3d 1142, 1147 (7th Cir.1994)(the court reviewed the denial of Rule 37 sanctions as one of several errors in plaintiff's appeal from judgment for the defendants); Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp., 982 F.2d 363, 369 (9th Cir.1992)(the court reviewed the denial of Rule 11 and Rule 37 sanctions as one of several errors in the appeal from the dismissal of plaintiff’s claims); Haskell v. Washington Township, 891 F.2d 132, 133 (6th Cir.1989). The rationale of these cases is equally applicable to a sanction’s denial under the terms of 12 O.S.2001 § 3230(E)(1). In Haskell and McCright, supra, the court observed .that the denial of sanctions would not be appealable under the collateral-order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), because error in denial fails to meet the last criterion of the three-part Cohen test — i.e., that it "be effectively unreviewable on appeal.”

      . The elements of the two-prong test are: (1) Does the order conclusively determine the disputed question then before the court? and (2) Does the ruling's effect leave the aggrieved party without any relief at nisi prius because the defeated litigant stands precluded from proceeding further in the case? Hammonds, supra note 6, at ¶ 3, at 7.

      . The terms of 12 O.S.2001 § 953 are:
      An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article.

      . It suffices to say that for the assessment of appealability a denial of sanctions is treated differently from their imposition. See federal jurisprudence, supra note 8.

      . Even if the denial had been at once appeal-able, the appeal here would not have been late. By the terms of 12 O.S.2001 § 952(b)(3) failure to appeal from an interlocutory or intermediate order "shall not preclude” one from "asserting error” in that order "after the judgment or final order is rendered.” (emphasis added).

      . Although the April 25 denial of sanctions against a nonparty did not then rise to an appeal-able event, the order might have been accelerated for immediate appeal by a 12 O.S.2001 § 994 certification. The certified order would convert the denial into an immediately reviewable disposition and thus make it fit for an immediate appeal. For a discussion of the § 994 certification regime, see May-Li Barki, M.D., Inc. v. Liberty Bank and Trust Co., 1999 OK 87, ¶ 2, n. 4, 20 P.3d 135, 142 n. 4 (supplemental opinion on rehearing).

      . The terms of 12 O.S.2001 § 952(a) are:
      (a) The Supreme Court may reverse, vacate or modify judgments of the district court for errors appearing on the record, and in the reversal of such judgment may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof,
      (emphasis added).

      . A dismissal by consent and a voluntarily released and satisfied judgment are similar in their effect on a decision's appealability. Neither produces a final disposition with appealable characteristics. A voluntarily released and satisfied judgment moots both an appeal that is lodged against it and against all nisi prius vacation process. Mitchell v. Lindly, 1960 OK 115, ¶ 12, 351 P.2d 1063, 1067. This is so because any errors in its entry become abstract, hypothetical or academic and hence no longer available for the exercise of judicial cognizance. Hart v. Jett Enterprises, Inc., 1985 OK 24, ¶ 3, 744 P.2d 561, 563 (Opala, J., concurring); Stites v. DUIT Const. Co., Inc., 1995 OK 69, 903 P.2d 293, 299. This is not to say that the trial court loses cognizance at once after a judgment’s release and satisfaction is entered. Its jurisdiction will continue over fraudulent releases of judgment or over post-satisfaction disputes about the legitimacy of satisfaction. Hart, supra, at 563. In Napier v. Dilday, 1913 OK 388, ¶ 1, 132 P. 1085, the appeal was dismissed because the judgment rested upon a finding consented to by the parties. The court held that "[cjonsent ends all contention between the parties, and there is nothing to review on appeal.” In dismissing the appeal in Wray v. Ferris, 1938 OK 649, 85 P.2d 402, 403, the court noted that one cannot be heard to urge error in a proceeding leading to judgment or order which was entered by consent.


author: KAUGER, J.

text:
    2002 OK 70
    Rocky CASEY, Jr., Plaintiff/Appellee, v. Tammy CASEY, now Compton, Defendant/Appellant.
    No. 96,697.
    Supreme Court of Oklahoma.
    Sept. 24, 2002.

      Lauren LeBlanc Day, Oklahoma City, OK, for Defendant/Appellant.
    Wesley Brown, McAlester, OK, for Plain-tiffiAppellee.
   KAUGER, J.

¶ 1 The primary issue presented is whether the defendant/appellant, Tammy Casey (mother/custodial parent), agreed by all parties to have demonstrated a full commitment to the responsibilities of parenthood, must forfeit the right to travel on threat of the loss of her children. Secondarily, we are asked to determine whether a judicial balancing of the equities supports an award of appeal-related attorney fees. Pursuant to binding precedent — Kaiser v. Kaiser, 2001 OK 30, ¶ 33, 23 P.3d 278 and Abbott v. Abbott, 2001 OK 31, ¶ 8, 25 P.3d 291, we determine that the record is insufficient to rebut the custodial mother’s presumptive right to move out-of-state with her children. Although the mother has prevailed on the custody issue, the equities are not so in her favor as to impose appeal-related attorney fees on the plaintiff'appellee, Rocky Casey, Jr. (father/noncustodial parent).

FACTS

¶ 2 The mother and father were married in 1984, and had two children — a son, J.W.C., born on May 29, 1989, and a daughter, S.R.C., born on May 31, 1991. The couple divorced in February of 1995. The mother was awarded custody of the two minor children. A year later, the trial judge, Honorable Thomas M. Bartheld, entered a modification order amending the father’s visitation schedule and prohibiting either parent from removing the children from Pittsburg County, Oklahoma for the purpose of permanent residency without court approval.

¶ 3 In January of 2001, both the father and the mother filed motions to modify. The father sought custody of the children, then 11 and 9 years of age, respectively. The mother asked to remove the children from Oklahoma so that she might take advantage of an employment opportunity that would benefit the family unit and requested a change in the father’s visitation schedule.

¶4 For over six years, the mother had been working as a purchasing/office manager for Wabash (employer), commuting between 80 and 90 miles a day, to Checotah, Oklahoma at an annual salary of $26,500.00. Her company extended her a job offer which required that she move to Indiana for a salary of $37,500.00 — approximately a 42% increase. Along with the offer of a raise, the mother was informed that Wabash’s Oklahoma plant would be closing and that the employer would have no job for her within the state. In anticipation of having to obtain other employment, the mother made inquiries concerning job opportunities finding nothing in Pittsburg, Muskogee or McIntosh Counties comparable to the $26,500.00 she had been earning.

¶ 5 At the initial modification hearing held on February 9, 2001, the mother testified that she planned to locate in Kokomo, Indiana — a community of about 40,000. The mother investigated the school system in Ko-komo and was prepared to make arrangements for the children both before and after school. She also testified that she and the children planned, if her modification request were granted, to stay temporarily with Paul Limpkey (Limpkey) — a gentleman the mother had been dating for an extended period of time. Although Limpkey was in the process of moving the children’s furniture to his home at the time of the hearing, the mother indicated that the furniture would be returned if she did not receive permission from the court to relocate — her reason being that she would not leave Oklahoma if it meant forfeiting custody of her children.

¶ 6 The record is devoid of any testimony that the mother was unfit or an inappropriate placement for custody. The father testified that: 1) the children got along very well in the mother’s care; 2) she took care of their daily needs; and 3) he had nothing derogatory to say about her parenting skills. Primarily, he hated to see his children leave because he would miss them and because he thought their school work and outside activities might suffer.

¶ 7 The father presented one witness, a teacher from the Crowder schools, who testified generally that students who are transferred between school districts often experience a period of adjustment and that she thought that the children were having a difficult time. The teacher had seen the daughter crying and indicated that the son had missed a good deal of school. Nevertheless, the teacher stated that she had no reason to believe that the children wouldn’t adjust well and do fine in any school system. She also admitted that the son may have missed school due to an illness. She did not state that she had actually talked to either of the children about the possibility of a move. The teacher acknowledged that the children were gifted and that the mother was an interested parent. She also testified that she knew nothing detrimental about the mother.

¶ 8 At the close of the hearing on February 9th, the trial judge recognized that much of the children’s success in school had been because of the mother’s involvement and the father’s participation with the children. The trial judge visited with the children and acknowledged that both were upset. He indicated that much of the turmoil had been caused by false information given to them by both parents. Although the trial judge recognized that the mother was a very good parent, he refused to allow the mother to move with her children but agreed to leave custody unchanged if she did not leave Oklahoma. The trial judge indicated he would review the case in May and granted the mother the right to move with the children as long as she stayed within the confines of the state.

¶ 9 The mother filed a second motion to modify on April 24th, 2001, requesting that the trial court review its February order. In a hearing on the motion on May 30th, the trial judge indicated that he had not intended to revisit his ruling unless the mother chose to move. Nevertheless, he agreed to order a transcript of the February proceedings and to set another hearing once he’d had the opportunity to read the testimony. During these proceedings, the mother’s attorney stated that the Wabash plant had closed in Oklahoma and that the mother had a second job offer in Indiana. Concerned about how the mother’s investigation of the job might affect custody, he elicited an agreement from opposing counsel that the mother’s cause would not be prejudiced if she went to Indiana until the case was heard in July.

¶ 10 At the hearing on July 9, 2001, the trial judge heard argument from counsel concerning the appropriate standard of review and determined he would treat the matter as a new motion to modify. The mother testified that following the hearing in February, she informed her employer that she would be unable to accept the job offer in Indiana. The employer allowed her to continue working from home after the Oklahoma plant closed and made a second job offer in March of 2001. The offer involved an upgrade in her training which might ultimately result in the mother earning a minimum salary of $80,000.00. In the interim between the February and May hearings, the mother sent out ninety resumes to employers in Oklahoma and visited the employment office. She got no response which would have matched her existing salary.

¶ 11 Because she could no longer work from home, following the May 30th proeeed-ings, the mother went to Indiana temporarily. However, she did not move in with Limpkey as she had formerly planned. Rather, the mother signed a three month lease on an apartment. Further, she testified that she had no plans to move in with Limpkey or to marry him should the trial court grant her motion to modify.

¶ 12 While in Indiana, the mother located a person her daughter could work with training as a barrel racer — a sport she enjoys in Oklahoma. She also investigated the Koko-mo school’s curriculum, finding it superior to the one in the Crowder schools. There were also additional extra-curricular activities available in Indiana which her children had not enjoyed in Oklahoma — both before and after school.

¶ 13 John Duff (Duff), the Caseys’ son’s teacher testified at the July 9th hearing on behalf of the mother. Duff believed that the Caseys’ son was very well adapted, outgoing and exceptionally smart. He never observed anything in the son indicative of emotional problems. Duff compared the Crowder and Kokomo currículums. Although he found some comparisons, he felt the Kokomo schools’ enrichment programs for exceptional students like the Caseys’ son would be very beneficial. Duff was confident that the son would have no difficulty adjusting in the Ko-komo school district or anywhere else he might be enrolled. He also felt that an adjustment in visitation schedules which would allow the children to take advantage of the educational opportunities in Indiana would ultimately be beneficial to both children.

¶ 14 The only two witnesses heard at the July 9th hearing were the mother and Duff. The father did not testify nor did he present any evidence in contravention of that elicited by the mother. Nevertheless, the trial court determined that the mother’s evidence was insufficient to support an award of custody should she move permanently to Indiana.

¶ 15 The journal entry of judgment was filed on August 1, 2001, granting the father’s demurrer to the evidence and keeping in place the trial court’s February 9th order requiring that the mother give up her children if she moved out of state. The Court of Civil Appeals upheld the trial court and the mother filed certiorari on April 15, 2002. We granted certiorari on July 3, 2002.

I.

¶ 16 THE CAUSE IS GOVERNED BY THE COURT’S PRONOUNCEMENTS IN KAISER v. KAISER AND ABBOTT v. ABBOTT HOLDING THAT WHERE THE CUSTODIAL PARENT IS FIT AND THERE IS NO RISK OF REAL AND SPECIFIC HARM TO THE CHILD, THE DECISION TO RELOCATE THE FAMILY RESTS WITHIN THE CUSTODIAL PARENT’S AUTHORITY SUBJECT TO THE TRIAL COURT’S APPROVAL.

¶ 17 The mother asserts that governing precedent — Kaiser v. Kaiser, 2001 OK 30, ¶ 33, 23 P.3d 278 and Abbott v. Abbott, 2001 OK 31, ¶ 8, 25 P.3d 291 — mandates that a custodial parent, agreed by all parties to have demonstrated a full commitment to the responsibilities of parenthood, be allowed to exercise her right to relocate without threat of the loss of her children. Although the father argues that neither Kaiser nor Abbott apply because they were decided subsequent to the initial decision on modification, the father insists that Kaiser and Abbott formed the basis of the trial court’s determination that should the mother permanently relocate out-of-state, custody would be altered. We disagree.

¶ 18 In both Kaiser and Abbott, supra, this Court acknowledged that the decision of the custodial parent to move is not the dispositive issue in modification proceedings. Rather, the focus is on the fitness of the custodial parent and the potential that the child will be placed at risk of real and specific harm while living at the new location. If the parent is fit and there is no evidence of prejudice to the child, Kaiser and Abbott clearly place the decision to relocate within the parent’s ambit. Further, the cases recognize that, absent prejudice to the rights or welfare of the child, the custodial parent’s decision to change the child’s residence is guaranteed by statute.

¶ 19 Therefore, under Kaiser and Abbott, supra, the questions to be determined are: 1) whether the custodial parent is fit — a matter agreed to and acknowledged both by the trial court and by the father; and 2) whether there is a risk of real and specific harm to the children while living in the new location. The only evidence detrimental to the mother’s cause was presented through a teacher indicating that: 1) children generally have a difficult time adjusting to a change in schools; 2) the daughter had been seen crying at school; and 3) the son had missed a good deal of school. There is no indication in the record that, prior to testifying, the teacher had spoken to either of the children about the move. Further, the teacher admitted that the son may have missed school due to illness. Finally, she conceded that she had no reason to believe that the children couldn’t adjust in a new school setting.

¶ 20 In contrast, there was positive evidence that the children would benefit from the move. The son’s teacher testified that: 1) the curriculum in the Indiana school was superior to that offered in Crowder; and 2) both the son and the daughter would eventually adjust and benefit from the move — even though their visitation patterns with the father would alter.

¶ 21 This is not a situation where the parent has failed to demonstrate a full commitment to the responsibilities of parenthood. The record is devoid of evidence that the mother is anything other than responsible, interested and fit to continue as the custodial parent. Rather than indicating that the children will suffer from the move, the record supports a determination that the children will benefit — both financially as the mother’s income increases and through the offer of a superior school curriculum. Our decisions in Kaiser v. Kaiser, 2001 OK 30, ¶ 33, 23 P.3d 278 and Abbott v. Abbott, 2001 OK 31, ¶ 8, 25 P.3d 291, mandate that the mother should be allowed to pursue what may well prove to be a superior economic rank for her family unit and an upgrade in educational opportunities for her children.

¶ 22 These parents have been before the trial court on several occasions — some of which may have understandably tested the patience of the trial judge. We are aware that the trial court did not have the benefit of the teachings of Kaiser and Abbott, supra, when it issued the initial decision on modification in February of 2001 — both cases having been decided the following April. However, when the trial court revisited his February order and issued the second ruling on modification in July which was memorialized by order in August, mandate — an order of this Court requiring compliance — had issued in Abbott, supra.

¶ 23 We are mindful that the appropriate standard of review in a custody modification is abuse of discretion. Nevertheless, before we can presume the trial court’s decision correct, it must be supported by the record. A clear abuse of discretion occurs when a challenged decision is against or unjustified by reason and evidence. Further, even where the trial court is vested with broad discretionary powers, its order will be reversed if it erred with respect to a pure, simple and unmixed question of law. Here, neither the record facts nor the controlling jurisprudence support the trial court’s decision. Therefore, we determine that, under the facts presented — where the custodial parent is recognized as a fit repository for custody and where no real and specific harm to the children is identified, the mother may not be restricted from relocating out of state under peril of losing custody of her children pursuant to our decisions in Kaiser v. Kaiser, 2001 OK 30, ¶ 33, 23 P.3d 278 and Abbott v. Abbott, 2001 OK 31, ¶ 8, 25 P.3d 291. Although the custodial parent is entitled to leave the state without fear of losing her children, the non-custodial parent is entitled to a mandatory adjustment of the visitation schedule guaranteeing access to his minor children.

II.

¶ 24 NO COMPELLING OR OVERRIDING EQUITABLE CONSIDERATIONS ARE PRESENTED TO SUPPORT AN AWARD OF APPEAL-RELATED ATTORNEY FEES.

¶ 25 The mother argues that because she clearly should have prevailed in the trial court and because she has been forced to remain in Oklahoma, placing her employment in jeopardy, that the equities support an award of appeal-related attorney fees. Although the father does not specifically respond to this request, the record does not reveal a large disparity between the two individuals’ annual salaries — a factor which may be considered in the decision to award such fees.

¶ 26 Appeal-related attorney fees are recoverable if statutory authority exists for their award in the trial court. Title 43 O.S.2001 § 110 provides for the award of counsel fees in divorce and subsequent related actions. However, counsel fees claimed pursuant to § 110 do not depend on one’s status as the prevailing party. Rather, they are awarded to the litigant who qualifies through the balancing of judicial equities or when the appeal is frivolous or lacks merit.

¶ 27 Most certainly, the mother would not argue that the appeal lacked merit. Although we recognize that the trial court’s decision has impacted her employment decisions and thwarted plans for relocation, neither party asserts that the modification actions were brought out of anything but concern for the children. Based upon our review of the record, no compelling or overriding equitable considerations exist to support the father’s payment of the mother’s attorney fees incurred on appeal. Therefore, we hold that the mother is responsible for her appeal-related attorney fees.

CONCLUSION

¶ 28 Our decisions in Kaiser v. Kaiser, 2001 OK 30, ¶ 33, 23 P.3d 278 and Abbott v. Abbott, 2001 OK 31, ¶ 8, 25 P.3d 291 make it clear that once a custodial parent makes the decision to relocate only showings that the parent is unfit or that the move may result in real or specific harm to the children will support denial of the request. In absence of either element in the record, we hold that the mother may not be restricted from relocating out of state under peril of losing custody of her children. Although the custodial parent is entitled to leave the state without fear of losing her children, the non-eustodial parent is entitled to a mandatory adjustment of the visitation schedule guaranteeing access to his minor children. Because the record does not present any compelling or overriding equitable considerations in the mother’s favor, we also determine that the mother is responsible for her appeal-related attorney fees. The cause is remanded for further proceedings consistent with this opinion.

COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS.

ALL JUSTICES CONCUR.

      . Neither party argues that either Kaiser v. Kaiser, 2001 OK 30, ¶ 33, 23 P.3d 278 or Abbott v. Abbott, 2001 OK 31, ¶ 8, 25 P.3d 291 were wrongly decided or that the Court should reassess its commitment to the causes as precedent. See, Hartline v. Hartline, 2001 OK 15, ¶ 11, 39 P.3d 765; Rodgers v. Higgins, 1993 OK 45, ¶ 29, 871 P.2d 398. Although the father argues that the cases, decided prior to the initial modification proceeding filed in January of 2001, were inapplicable to the trial court’s initial decision, he asserts that the trial court applied the cases to the facts and reached the conclusion that the children would be subject to real and specific harm if allowed to move out of state with the mother. The trial court issued its initial decision on February 9, 2001. Kaiser, this note, supra, was promulgated on April 3, 2001, and Abbott, this note, supra, was decided on April 10, 2001.

      . Title 10 O.S.2001 § 19 provides:
      "A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child.”

      . Transcript of proceedings, February 9, 2001, Tammy Casey's testimony providing in pertinent part at pp. 24 — 25:
      "... Q Your’re not going to be living with him [Paul Limpkey]?
      A I’m going to stay with him until I find a house.
      Q You're going to stay with him until you find a house?
      A Yes, I am.
      Q With the children?
      A Yes....”

      . Transcript of proceedings, February 9, 2001, Tammy Casey's testimony providing in pertinent part at pp. 25-26:
      "... Q And what of the children’s things has he [Paul Limpkey] taken?
      A Their furniture.
      Q And has he taken those things to his house? A He's not taking them any where until he gets a phone call from me.
      Q I thought you said he's taking them to Indiana.
      A He's on his way. If I call him and tell him to come back he’s going to come back and put them in a storage building.
      Q Why would you call him and tell him to come back.
      A Because if my children do not get to go with me to this job then I will stay here....”

      .Transcript of proceedings, February 9, 2001, Rocky Casey, Jr.’s testimony atpp. 32-33:
      "... Q Okay. Is it fair to say that the kids have gotten along very well in your ex-wife's custody over the last several years?
      A Yes.
      Q Okay. She has done a good job of raising your kids?
      A Yes.
      Q She cares for their needs daily?
      A Yes.
      Q Essentially you really don't have anything bad to say about her raising your kids, would that be a fair statement?
      A That would be fair....”

      . Transcript of proceedings, February 9, 2001, Diane Quinn’s testimony providing in pertinent part at pp. 109-110:
      "... Q Can you tell me the short term or what you have observed from a child that has come in like that generally as to how it relates to school and things like that?
      ... A Yes, I think there is always an adjustment period when there is a move like that....”

      . Transcript of proceedings, February 9, 2001, Diane Quinn’s testimony providing in pertinent part:
      atpp. 116-17: "...Q ... What do you mean you don’t think this is good for the children?
      A I think the prospect of moving away from family and friends has been detrimental to them. I have seen [S.] crying. I’ve seen [J.] miss a lot of school maybe he had the flu. I know in my case if I had to decide between my mother and my father it would be very detrimental to me....”
      atp. 115: "... Q There is no reason you would have to believe that they wouldn’t adjust well and do well in any school system they are in, would you agree with that?
      A That’s speculation, there is no reason for me to believe they wouldn’t...."

      . Transcript of proceedings, February 9, 2001, Diane Quinn’s testimony providing in pertinent part at pp. 114-15:
      "... Q To your knowledge does she show an interest in her kids?
      A Yes.
      Q So you're not here talking bad about her, would that be fair to say?
      A Yes.
      Q ... These kids are pretty gifted, aren’t they?
      A Yes, they are...."

      . Transcript of proceedings, November 9, 2001, statements by Honorable Thomas M. Bartheld, providing in pertinent part at p. 11:
      "... I mean we are not talking about kids that are struggling in school. We are talking about kids that breeze through school and how wonderful that is. It's due to the mother’s involvement in school. The father's involvement with ■ the kids....”

      . Transcript of proceedings, November 9, 2001, statements by Honorable Thomas M. Bartheld, providing in pertinent part at pp. 24-25:
      "... I am not going to permit them to move in the middle of a school year at all. So the bottom line if you wish to move to Indiana, accept that job and live with Mr. Limpkey the kids are staying here. They — but that puts me in a quandary because if you choose not to, if you stay here I’m leaving custody with you because you’ve proven and Mr. Brown is correct unlike the past two hearings Mr. Casey didn't come in here and say anything but good about you and I believe it I’ve seen the results you’re a good mother, very good mother. ... So if you choose to go ahead and move up there then I'm going to award custody to Mr. Casey. If you choose to remain here custody remains with you. If you want to go up there and look for homes something like that, check into the schools I will review the case in May and let you have visitation for the spring break....”

      . Transcript of proceedings, May 30, 2001, statement of Mr. Brown, representing the father, providing in pertinent part at p. 22:
      "... MR. BROWN: I'm saying she can do what she wants to without prejudice through his four weeks of visitation this summer. He gets four weeks visitation no matter what....”

      . Transcript of proceedings, July 9, 2001, statement of the trial court providing in pertinent part atp. 12:
      "... THE COURT: Okay. Well what I will do is treat this as a new motion to modify....” Nevertheless, at the close of the hearing, the trial judge indicated that it was really only a motion to supplement the record of the February 9th hearing and that insufficient evidence of a material change had been presented to alter his former ruling.

      . Transcript of proceedings, July 9, 2001, Tammy Casey's testimony providing in pertinent part atp. 18:
      "... Q After a person is trained in Lotus and J.D. Edwards, what kind of salaries can they command at say the southwest region of the United States?
      A Probably after a couple of years of experience and all the training they can make around 80,000 a year. That’s probably a minimum

      .Transcript of proceedings, July 9, 2001, John Duff's testimony providing in pertinent part at pp. 55-56:
      "... Q At any time during the past school year that you had [J.] in your class, did you see him having any emotional problems?
      A No....
      Q What kind of student is [J.]?
      A [J.] is very well adapted student, very intelligent, out going, exceptionally smart.
      Q Have you had the opportunity to review the curriculum at the Western — Northeastern School District in Kokomo, Indiana?
      A Yes.

        Q And do you think that [J.] would have any problem adjusting to that curriculum?
      A No. what I saw it’s very comparable to what Crowder offers.... They have some enrichment programs, the extra programs for the exceptional students and I think he would benefit a lot from those programs.
      Q Does Crowder have enrichment programs for exceptional students?
      A No, they’re really restricted.
      Q Based on your familiarity with [J.] do you think that he will have any problems if he goes to school in Kokomo?
      A No, [J.], is one of those students that I think could adapt any where. He’s one that challenged me in this last year as far as keeping ahead of him as far as his thought processes. He likes to debate a lot. He’s just one of those he’s always striving to learn and just searching for more information

      . Transcript of proceedings, July 9, 2001, John Duff’s testimony providing in pertinent part at pp.62-63:
      "... Q Mr. Duff, if [J.] or [S.] were to miss some weekend visitation if they moved to Indiana with their dad, do you think the enrichment programs and stuff that they would be able to take those at school and kind of off set?
      A I think so.
      Q So if they got a little extra time with dad in the summer or on the holiday, you think it would be worth these children getting those programs?
      A I think in [J.'s] case, yes....
      Q Let me take it [sic] what you’re saying. You’re saying if she takes the children to Indiana with her that the enrichment program is going to off set the time spent with father? Is that what you’re telling the Court?
      A I think from what I got to know about [J.] and the way he is, yes. He would adapt very well.
      Q No, that’s not what my question is. My question is what Mr. Zellmer asked you. Mr. Zellmer asked you if he didn’t get to see his father on some weekends and maybe not as much as [sic] sees him now would these enrichment programs at this good school in Ko-komo — I doubt it’s any better than Crowder but if it’s better than Crowder, would that offset that contact with a parent?
      A In this case I think so.
      Q You think it would be in his best interest to be in the Kokomo school than the Crowder School?
      A Yes, I do.
      Q What about [S.]?
      A In the long run probably....”

      . Title 10 O.S.2001 § 19, see note 2, supra.

      . See, ¶ 7 and accompanying footnotes, supra.

      . See, ¶ 13 and accompanying footnotes, supra.

      . Transcript of proceedings, January 9, 2001, statement of the trial judge providing in pertinent part:
      at p. 20: "... THE COURT: ... We had a divorce trial that went late one night 9, 10:00, very acrimonious, very bitter. We had another hearing in '96 very bitter....”
      at p. 31: "... THE COURT: I don’t feel like I need to restrict her any more and Mr. Casey for the record has set here and agreed with me. While you’re arguing with the Court he’s sitting there agreeing with me nodding his head saying I don’t need to have my thumb on them any more. That they are doing okay. That — you know, in the past hearing these people couldn’t talk. They couldn't even be around each other, but now they can. And whether like I say, whether they have grown up or just buried the hatchet these kids are doing good....”

      . Initially, mandate issued in Kaiser v. Kaiser, see note 1, supra, on May 17, 2001. However, mandate was recalled on May 21 and did not finally issue until September 21, 2001. Mandate is the order from this Court which requires a trial court's compliance with the opinion issued. Daniel v. Daniel, see note 21 at ¶ 12, infra. See also, Chronic Pain Asoc., Inc. v. Bubenik, 1994 OK 127, ¶ 12, 885 P.2d 1358; Aaron v. Morrow, 1935 OK 911, ¶ 11, 50 P.2d 674.

      . Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863; Manhart v. Manhart, 1986 OK 12, ¶ 13, 725 P.2d 1234; Duncan v. Duncan, 1969 OK 7, ¶ 13, 449 P.2d 267.

      . Enochs v. Martin Properties, Inc., 1997 OK 132, ¶ 5, 954 P.2d 124. See also, Hamid v. Sew Original, 1982 OK 46, ¶ 17, 645 P.2d 496.

      . Pierce v. Pierce, 39 P.3d 791, 2001 OK 97, ¶ 21; Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185; Abel v. Tisdale, 1980 OK 161, ¶ 20, 619 P.2d 608.

      . Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, ¶ 5, 46 P.3d 698; Bishop’s Restaurants, Inc. of Tulsa v. Whomble, 1960 OK 44, ¶ 0, 355 P.2d 560; Nash v. Hiller, 1963 OK 63, ¶ 0, 380 P.2d 77.

      . The facts here differ significantly from those presented to the Court in our recent decision involving redistricting in Alexander v. Taylor, 2002 OK 59, ¶ 22, 51 P.3d 1204, in-which we determined that the trial court did not abuse its discretion in choosing one of several plans proffered where all parties had stipulated that the submitted plans satisfied the constitutional requirements of "one person, one vote” under art. 1, § 2, United States Constitution, and where no issues were presented with regard to statutory violations under § 2 of the Voting Rights Act, 42 U.S.C. § 1973.

      . Our decision negates the need to address the mother's basic constitutional freedom — the right to travel. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306 (1974). The fundamental right has been characterized as assertable against private interference as well as governmental action — a virtually unconditional personal right, guaranteed by the United States Constitution to all citizens. Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 1523, 143 L.Ed.2d 689 (1999).

      . Transcript of proceedings, February 9, 2001, Rocky Casey, Jr.'s testimony providing in pertinent part at p. 36:
      "... Q Okay. What was your gross pay for last year?
      A Thirty-nine thousand.
      Q That is about what you will anticipate you will receive this year?
      A It varies it can probably not. I don't think I will make that this year because of the fact pop prices are going up, sales are down and I'm paid on commission. Other pop companies are selling pop cheaper than what we are.
      Q You don’t know what exactly what you will make this year?
      A No.'
      Q Has it varied up to $40,000 in years past?
      A From oh, when I started there any where from 27,000 up to 39, 40,000, yeah....”

      . Abbott v. Abbott, see note 1 at ¶ 12, supra.

      . Daniel v. Daniel, see note 21 at ¶ 24, supra; First Community Bank of Blanchard v. Hodges, 1995 OK 124, ¶ 13, 907 P.2d 1047.

      . Title 43 O.S.2001 § 110 provides in pertinent part:
      . C. Upon granting a decree of divorce or separate maintenance, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.
      D. The court may in its discretion make additional orders relating to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the divorce action made for the benefit of either party or their respective attorneys.”

      . Stork v. Stork, 1995 OK 61, ¶ 18, 898 P.2d 732; Thielenhaus v. Thielenhaus, 1995 OK 5, ¶ 19, 890 P.2d 925; Phillips v. Phillips, 1976 OK 165, ¶ 10, 556 P.2d 607.

      . Title 20 O.S.2001 § 15.1; TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 13, 829 P.2d 15.


text:
    2002 OK 71
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Eric Dean TROUTT, Respondent.
    SCBD No. 4740.
    OBAD No. 1548.
    Supreme Court of Oklahoma.
    Sept. 30, 2002.
    As Corrected Oct. 1, 2002.
   ¶ 0 Order Approving Resignation Pending Disciplinary Proceedings.

¶ 1 Upon consideration of the complainant’s, Oklahoma Bar Association (Bar Association), application pursuant to Rule 8.2 of the Rules Governing Disciplinary Proceedings (5 O.S.2001 Ch. 1, App. 1-A), for an order approving the resignation of the respondent, Eric Dean Troutt, pending disciplinary pro-eeedings, the application and resignation reveal the following.

¶ 2 On September 4, 2002, the respondent filed his with this Court his affidavit of resignation from membership in the Bar Association pending investigation of disciplinary proceedings.

¶3 The respondent’s affidavit of resignation reflects that: a) it was freely and voluntarily rendered; b) he was not subject to coercion or duress; and c) he was fully aware of the consequences of submitting the resignation.

¶ 4 The respondent’s affidavit incorporates a formal Complaint against him filed on the docket of this Court. That Complaint states the following.

(1) S.C.B.D. No. 4740 (Count I) alleges that respondent was retained in March of 1999 by Mr. Shaw and respondent brought an action on behalf of Mr. Shaw against Wal Mart. Further, that respondent failed to communicate with Mr. Shaw, failed to inform him of the dismissal of another party to the action, and incorrectly stated that a hearing was pending in the matter when Mr. Shaw inquired of the status of the action. Count I states that respondent was allowed to withdraw from the action by order of the district court, but did not inform Mr. Shaw of respondent’s withdrawal, or desire to withdraw. Further, that after withdrawing from the action respondent filed an amended petition in the action in September 2001, and then failed to have one of the defendants served with process for six months. One defendant filed a motion to dismiss based upon a statute of limitations, and when respondent failed to respond or appear at the hearing the defendant was dismissed from the action. The Complaint alleges that responded violated Rules 1.1, 1.3,1.4 and 3.2 of the Oklahoma Rules of Professional Conduct.

(2) S.C.B.D. No. 4749 (Count II) alleges that upon filing Mr. Shaw’s grievance with the Bar Association and the Bar’s request in July 2001 for respondent to respond thereto, respondent did not respond and then left unclaimed two subsequent certified letters (August and September) from the Bar requesting a response. Respondent provided a response to the Bar Association in December 2001, and stated that another lawyer (Mr. T.), agreed to help Mr. Shaw find another lawyer to take respondent’s place. Mr. Shaw responded and stated that he did not know lawyer Mr. T. and had not given respondent permission to use Mr. T. as a lawyer for his case. The Complaint alleges that respondent asked Mr. T. to take over the case as Shaw’s lawyer, but Mr. T. declined the invitation. The Complaint also alleges that in May of 2002 an investigator for the Bar asked respondent if he would contact Mr. Shaw about his case, and if respondent intended to respond to the motion to dismiss in the trial court. The Complaint further states that respondent stated that he would contact Mr. Shaw and respond to the motion, but he did not subsequently do either. The Complaint alleges that responded violated Rule 8.4 of the Oklahoma Rules of Professional Conduct, and Rule 5.2 of the Rules Governing Disciplinary Proceedings.

¶ 5 The respondent’s affidavit and the application show that three (3) grievances have been filed against Respondent and are pending before Complainant:

(1) DC 02-102 is a grievance alleging that respondent received a settlement cheek payable to himself and a client, Mrs. Lynn, and that after depositing the check to his trust account he has not paid his client her portion of the settlement. This grievance further alleges that respondent did not have his client’s permission to deposit the check into his trust account, and also failed to have a written contract for his contingency fee agreement.

(2) DC 02-187 is a grievance alleging that Mr. Sanger provide funds to respondent to be used for a specific purpose and respondent converted those funds to his use. This grievance also alleges that respondent failed to properly communicate with Mr. Sanger and obtained an unreasonable fee in representing Mr. Sanger.

(3) DC 02-293 is a grievance alleging that respondent received a check from a settlement and made payable to him and Dr. Gallagher for medical services provided by Dr. Gallagher to respondent’s client. The grievance further alleges that respondent deposited the check into his trust account without permission of Dr. Gallagher, and respondent thereafter refused to pay Dr. Gallagher until he filed a legal action against respondent.

¶ 6 The resignation states that the respondent is aware that the allegations concerning his conduct, if proven, would constitute violations of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, and the Oklahoma Rules of Professional Conduct, 5 O.S.2001 Ch.l, App. 3-A, and his oath as a lawyer.

¶ 7 The resignation states that the respondent is aware of the requirements of Rule 9.1, of the Rules Governing Disciplinary Proceedings, and shall comply with that Rule.

¶ 8 The resignation states that the respondent is aware that he may make no application for reinstatement prior to the expiration of five years from the effective date of the order approving his resignation, and that reinstatement requires compliance with Rule 11 of the Rules Governing Disciplinary Proceedings. See 5 O.S.2001 Ch. 1, App. 1 A, Rule 8.2, Rules Governing Disciplinary Proceedings; State ex rel. Oklahoma Bar Association v. Bourland, 2001 OK 12, 19 P.3d 289; In re Reinstatement of Hird, 2001 OK 28, 21 P.3d 1043.

¶ 9 The resignation states that the respondent is aware that the Client’s Security Fund may receive claims from his former clients, and that he shall pay to the Oklahoma Bar Association, prior to reinstatement, those funds, including principal and interest, expended by the Client’s Security Fund for claims against him. He must repay such funds to the Bar Association prior to reinstatement. See 5 O.S.2001 Ch. 1, App. 1-A, Rule 11.1(b), Rules Governing Disciplinary Proceedings. We have required payment of interest at the statutory rate for repayment to he Client’s Security Fund. State ex rel. Oklahoma Bar Association v. Glover, 2002 OK 54, ¶ 4, 49 P.3d 738.

¶ 10 The resignation states that the respondent is aware that costs have been incurred by the Oklahoma Bar Association investigating the grievances, but requests that those costs be waived. The Bar Association’s application for approval of the resignation requests that costs be waived.

¶ 11 The official roster name and address of the respondent is Eric Dean Troutt, O.B.A. No. 16,464, 300 E. Main, Ste. 1111, El Paso, Texas, 79912.

¶ 12 IT IS THEREFORE ORDERED that Complainant’s application and Respondent’s resignation be approved.

¶ 13 IT IS FURTHER ORDERED that Respondent’s name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the Oklahoma Bar Association prior to five years from the effective date of this order.

¶ 14 IT IS FURTHER ORDERED that if any funds of the Client’s Security Fund of the Oklahoma Bar Association are expended on behalf of Respondent, he must show the amount paid and that the same has been repaid, with interest, to the Oklahoma Bar Association to reimburse such Fund prior to reinstatement.

¶ 16 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 30TH DAY OF SEPTEMBER, 2002.

¶ 16 ALL JUSTICES CONCUR.