Botofan-Miller v. Miller

Decision Date15 August 2019
Docket NumberCC C104720DRA (SC S065723)
Citation446 P.3d 1280,365 Or. 504
Parties In the MATTER OF the MARRIAGE OF Loredana Elizabeth BOTOFAN-MILLER, Respondent on Review, and Brett Robert MILLER, Petitioner on Review.
CourtOregon Supreme Court

Robert Koch, Tonkon Torp LLP, Portland, argued the cause and filed the briefs for petitioner on review.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent on review.

NELSON, J.

This is a child custody dispute arising out of father’s motion to modify a custody determination made at the time of the dissolution of the parties’ marriage, which awarded mother sole legal custody of child. At the conclusion of the modification proceeding, the trial court found that there had been a material change in circumstances concerning mother’s ability to parent child and that a change of custody from mother to father was in child’s best interest, and it awarded sole legal custody of child to father. On mother’s appeal, the Court of Appeals reversed the judgment of the trial court on the ground that, as a matter of law, there was insufficient evidence in the record to support the court’s finding of a change in circumstances and, thus, that custody modification was not warranted. Botofan-Miller and Miller , 288 Or. App. 674, 406 P.3d 175 (2017). For the reasons that follow, we hold that sufficient evidence in the record supported the trial court’s ruling that father had proved a change of circumstances. We also address an issue that the Court of Appeals did not reach: whether the trial court erred in concluding that a change in custody was in child’s best interest. We hold that the trial court did not err in so concluding. Therefore, we reverse the decision of the Court of Appeals.

STANDARD OF REVIEW

Historically, in an appeal from a suit in equity, as with the instant case, appellate review of a trial court’s findings was de novo . However, in 2009, the legislature amended ORS 19.415(3) to provide that de novo review in cases like this one is discretionary. Or. Laws 2009, ch 231, § 2. The Court of Appeals in this case declined to exercise its discretion to review the case de novo . Botofan-Miller , 288 Or. App. at 675, 406 P.3d 175. We also decline to review the case de novo .

In keeping with that approach, we view the facts pertinent to review of the Court of Appeals’ change-in-circumstances decision in the light most favorable to the trial court’s disposition. That is, we will uphold the trial court’s findings of facts if there is any evidence in the record to support them. Sea River Properties, LLC v. Parks , 355 Or. 831, 834, 333 P.3d 295 (2014). As part of that consideration, when we view the record, we accept reasonable inferences and reasonable credibility choices that the trial court could have made. State v. Cunningham , 337 Or. 528, 539-40, 99 P.3d 271 (2004). Moreover, if the trial court failed to articulate its factual findings on a particular issue, we assume that the trial court decided the facts in a manner consistent with its ultimate conclusions, as long as there is evidence in the record, and inferences that reasonably may be drawn from that evidence, that would support its conclusion. State v. Serrano , 346 Or. 311, 326, 210 P.3d 892 (2009).

The Court of Appeals concluded that the trial court erred in finding a change in circumstances and, for that reason, it did not reach the question whether the trial court erred in ruling that custody modification was in child’s best interest. Appellate courts review the trial court’s best interest determination for abuse of discretion. Epler and Epler , 356 Or. 624, 636, 341 P.3d 742 (2014) (so holding). That is, the court will uphold the trial court’s best interest determination unless that court exercised its discretion in a manner that is "clearly against all reason and evidence." Espinoza v. Evergreen Helicopters, Inc. , 359 Or. 63, 117, 376 P.3d 960 (2016).

We state the following facts with those standards of review in mind.

UNDERLYING FACTS

The parties were married in April 2009, and child was born in June 2009. The parties separated in October 2010, when child was about 17 months old. Immediately after the separation, child spent most of her time with mother. Beginning in February 2011, child spent about a third of her time with father.

During the dissolution proceedings, there were some signs that mother was experiencing mental health issues. In 2010, mother twice reported to police that father was physically abusive toward her, but the trial court in the original dissolution proceeding concluded that her allegations were unfounded.1 And, in February 2011, mother took child to a hospital emergency room and reported that father had been poisoning her and child. According to a DHS report, mother appeared delusional, and there was no evidence of poisoning.

Mother was hospitalized and given antipsychotic medications. Mother attributed the psychotic episode to sleep deprivation and her anxiety about father’s extended parenting time. Mother’s medical providers concluded that mother did not have a psychotic illness and that she was not at risk for recurring psychotic episodes.

Notwithstanding those incidents, at the time of the dissolution proceedings, father believed that mother and child had a healthy relationship and that child was flourishing. Father did not question mother’s ability to parent child, and he did not object to mother’s request for legal custody of child. For that reason, the trial court did not order a custody evaluation or make any findings about custody in its judgment of dissolution. The court awarded mother sole legal custody of child, awarded parenting time to father (including regular overnight stays), and, for reasons we will next discuss, ordered that child be immunized on a schedule set by an agreed-upon pediatrician. The parties’ marriage was dissolved in July 2011, when child was about two years old.

During the dissolution proceeding, father learned that mother had not had child immunized according to the vaccination

schedule set by child’s pediatrician, Harper, and mother disclosed her general resistance to vaccinations to the trial court during a February 2011 hearing on certain temporary matters. At the conclusion of that hearing, the court ordered mother and father to follow Harper’s recommendations for vaccinating child. In April 2011, the trial court entered a limited judgment in which it found that "[t]here has been a significant gap in the health care of the minor child" and ordered the parties to follow the pediatrician’s directions "as to all health care issues, including vaccinations." About two weeks after that limited judgment was entered, father remained concerned that mother was interfering with the directions of the pediatrician. In an affidavit attached to a motion seeking certain medical records, father stated that he did not believe that child had received her scheduled vaccinations and booster vaccinations.

In a court filing, mother responded that father had "exaggerated the gap in [child’s] medical care." Mother explained that she had had financial problems obtaining and maintaining insurance coverage but had tried to keep child current with her vaccinations

. She stated that, as had been required, she had taken child to Harper, who had recommended a course of vaccinations. Mother further explained that, thereafter, she became uncomfortable with Harper, because Harper had remarked on mother’s and father’s tense relationship. Mother decided, therefore, to begin taking child to another pediatrician, Dr. Thomas. Mother averred that, as of April 2011, child was caught up with and was following the vaccination schedule established by Thomas.

In July 2011, the court, as noted, awarded mother legal custody of child and granted mother sole medical decision-making authority. However, notwithstanding mother’s agreement to continue to follow Thomas’s vaccination

schedule, and in light of continuing concerns about mother’s general resistance to vaccinations, the trial court included a provision in the judgment of dissolution requiring mother to "confer with [child’s] pediatrician to ensure that a proper vaccination schedule is in place for [child]."

After the dissolution judgment was entered, father began to notice changes in mother’s ability to parent child, which ultimately led him to move for a change in of custody. Those changes related generally to mother’s struggles in making medical decisions and to certain harmful repercussions to child of mother’s increasing anxieties about child’s wellbeing.

For instance, father became increasingly concerned about mother’s inability to make medical decisions for child after child developed an eye condition in 2013 that resulted in her eyes crossing, giving her double vision. In February 2014, child’s ophthalmologist, Dr. Wheeler, began recommending surgery to address the condition. He explained that vision therapy probably would not solve the underlying problem and that delaying surgery risked child’s double vision becoming permanent. Mother resisted scheduling surgery and sought out opinions on online forums suggesting alternatives to surgery. Mother spent dozens of hours discussing those opinions with child’s doctors and their staff. She also started taking child to a different ophthalmologist, Karr, during this time. Karr also recommended surgery. Mother finally agreed to schedule the surgery after father informed her that he would be seeking custody modification.

The surgery, which ultimately took place in December 2014, was successful, and child suffered no long-term consequences to her vision. However, during the prolonged period of delay, child suffered balance and coordination problems—for example, she would fall over while coloring—and she experienced stomach aches. She also struggled at school academically, with writing and fine-motor skills, and she struggled socially. All those problems...

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    • United States
    • Oregon Court of Appeals
    • March 10, 2021
    ... ... at 9, 176 P.3d 388 ; see also, e.g. , Botofan-Miller and Miller , 365 Or. 504, 520, 446 P.3d 1280 (2019), cert. den. , U.S. , 141 S. Ct. 134, 207 L.Ed.2d 1079 (2020) (same); Johnson , 325 Or. at ... ...
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