Co v. Storm, 020362434; A136958.

• Decision Date: 11 August 2010
• Docket Number: 020362434; A136958.
• Citation: 236 Or.App. 578,238 P.3d 30
• Parties: In the Matter of the CUSTODY OF D.T.J.S-B, a Minor Child. Charles Andrew Buxton, Co-Petitioner-Appellant, v. Erica Lynn Storm, Co-Petitioner-Respondent.
• Court: Oregon Court of Appeals

236 Or.App. 578

238 P.3d 30

In the Matter of the CUSTODY OF D.T.J.S-B, a Minor Child.Charles Andrew Buxton, Co-Petitioner-Appellant,

v.Erica Lynn Storm, Co-Petitioner-Respondent.

020362434; A136958.

Court of Appeals of Oregon.

Submitted Dec. 04, 2009.

Decided Aug. 11, 2010.

Adam L. Dean and Coit and Dean, PC filed the opening brief for appellant. With him on the reply brief was Haley Griffith, Certified Law Student.

Erica Storm filed the brief pro se.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

ORTEGA, J.

Father appeals the trial court's judgment denying his motion for a change in custody of the parties' son. We review de novo, ORS 19.415(3) (2007), ¹ and conclude, consistently with the trial court's judgment, that the increased conflict between the parents and the effect of that conflict on child constitutes a substantial change in circumstances. After due consideration of the trial court's ability to assess the parties' credibility and demeanor, Cooksey and Cooksey, 203 Or.App. 157, 172, 125 P.3d 57 (2005), we nevertheless disagree with its ruling on best interests and conclude that changing custody to father is in child's best interests. Accordingly, we reverse and remand for entry of a judgment granting custody to father.

The litigation between the parties is highly contentious and has extended over several years, including a prior custody order in 2005. Before we begin a chronological review of the record, we highlight four themes that emerge from that review. First, mother has repeatedly accused father of serious crimes, but all of those accusations have proved unfounded. Second, mother has repeatedly excluded father from participating in various medical and psychological interventions to treat and evaluate child, calling into question the validity of some of those interventions. Third, after father was granted increased parenting time, child's behavioral problems escalated in ways that appear to have been driven by mother's influence. Fourth, the experts who evaluated the case have not arrived at a definitive diagnosis, but they all characterize child as displaying symptoms of anxiety, some developmental delay, and aggressive behavior, and all, to at least some degree, attribute child's problems to the conflict between the parties.

We proceed to a recitation of the pertinent facts. Mother and father began their relationship in 1999 and never married. Child was born in December 2001. Mother and father separated completely in 2002 when father moved to the Seattle area, where he continued to reside at the time of the custody hearing at issue. Their final failed attempt to reconcile occurred toward the end of 2003.

Father has a GED and is a plumber. During the relevant time period, he has had sole custody of his teenage daughter, B. B. and mother have a strained relationship; at one point, mother alleged that B. posed a physical threat to child, but one year later, mother acted inconsistently with that allegation by inviting B. to visit child in mother's home. ² Father currently resides with his fiancée, Nicole, and her daughter E., who is two years older than child. Both B. and E. are doing well in father's home and have bonded with child.

Mother has earned a J.D. and formerly practiced law. She is single and has a son, D.T., who is five years younger than child. Mother's relationship with D.T.'s father was conditioned on his lack of involvement in D.T.'s life. D.T. is doing well in mother's home and is bonded with child. Mother generally lives with at least one roommate.

The parties have been in litigation since mother's pregnancy with child. Before litigating custody, they filed several restraining orders against each other, which were vacated soon after filing. Soon after child was born, mother drafted a stipulated custody judgment, which the parties agreed to set aside shortly thereafter. When child was seven months old, they entered into a second stipulated judgment, also prepared by mother, granting mother sole custody and father extremely limited parenting time.

About a year later, father moved to change custody, and the parties stipulated to an order appointing Bell, with whom they had already worked once before, to conduct a custody evaluation. At Bell's request, mother and father underwent psychological evaluations. The evaluator, Gwin, reported that mother's test results showed signs of moderate to severe depression and a tendency to feel overburdened, blocked, or trapped. Gwin was concerned that mother would be prone to attempt to alienate child from father, noting that mother is “disposed to dichotomize someone * * * [and] could be quickly sensitive to her child's comments that favored the other parent over her.” Gwin reported that father's test results indicated a tendency toward sudden and intense emotional outbursts. She observed that father lacked insight and self-awareness and could be self-assertive, controlling, and difficult to coparent with; however, his “depth of parent-to-child bonding appears adequate to reasonably good.” She observed that he did not dichotomize people and “is not likely to be especially sensitive as to whether his child's comments are for or against him or the other parent.”

Each parent expressed concern about the other during the evaluation process, but mother went further and, during that process, accused father of at least three serious crimes, none of which could be substantiated. First, she reported to Bell and to the police that father had stolen cash (her reports varied from $30,000 to $60,000) that she held for a “mafia” client. However, the record does not indicate that father was ever investigated for theft, although mother's change to inactive status with the Oregon State Bar is related to the missing cash, by her report. Second, mother accused father of setting fire to his trailer home, but father submitted to a polygraph test and eventually was cleared by police investigators of having set the fire. Third, mother reported to Bell that father had sexually abused child. A CARES NW examination found no evidence of abuse; the Department of Human Services recommended supervised parenting time for father for his own protection and then closed the case as unfounded. Father also submitted to another polygraph test, which supported his denial of any sexual abuse.

Mother continually pushed Bell to recommend supervised visits for father, but Bell did not see a need for supervision. Although mother never once asserted during several contacts with Bell and Gwin that father had physically or sexually abused her, she obtained a second psychological evaluation by Mallory during that same time period; in the Mallory evaluation, she reported physical and sexual abuse by father. In light of mother's report, Mallory interpreted mother's test results as if domestic violence had occurred and determined that mother had a “well-balanced personality style” and “would make a positive and effective primary custodial parent.” Mother's reports of abuse are otherwise unsubstantiated in the record. Mother finally acceded to father's requests to increase his parenting time to two entire weekends per month and six weeks during the summer without mother's supervision, but mother insisted that the exchanges occur at Safety Matters, a supervised exchange site for cases that typically involve domestic violence.

Bell's custody evaluation, completed in August 2004, when child was not quite three years old, reflected concern about both parents and the friction between them. Bell recommended that they share custody in the short term. She concluded that father was the more likely to facilitate and encourage a relationship with mother and was more capable of recognizing his weaknesses and past poor choices. Although mother was the primary parent, Bell had concerns that mother would undermine father's relationship with child. Bell also expressed concern “regarding the type of bond that [child] has with his mother given her personality style and the ongoing allegations against * * * father.” Bell was very concerned about the timing of mother's abuse allegations, her blaming father for the fire in his home, and her unilateral decisions to reduce or terminate visitation. Bell found no credible indicators of domestic violence. She noted that, “when the case somewhat slows down there are new allegations, assertions and I caution counsel regarding where this case is going.” She concluded with the hope that “within the next two years one or both of the parties can get themselves in a healthier position” and admonished that, “if [child] is in therapy[,] both parents need access to the clinician so a one sided statement paper does not come out regarding the other parent.”

The 2005 custody determination, reached when child was three years old, followed a two-day trial. The court increased father's parenting time to two weeks per month but did not find a substantial change of circumstances and therefore did not modify the award of sole custody to mother. The court noted that it had “some concerns about [m]other's fitness as a parent, but these concerns are not significant enough to merit a modification of legal custody.” The court was satisfied that mother could care for child on a day-to-day basis.

Conflicts persisted between the parents, culminating in this second attempt by father to obtain a custody modification, which he initiated in December 2005 and which was tried in the summer of 2007. Keeping in mind that the parties assess child's behavior and emotional problems quite differently, we consider the psychological evaluations that child has undergone since the last custody review. Despite Bell's admonitions regarding the importance of involving both parents in the professional services offered to child, mother has maintained sole control over nearly all such services.

Child has received at least three evaluations and regular counseling at ...