Garner v. Taylor (In re R.J.T.)

• Decision Date: 30 January 2013
• Docket Number: 064939,A144895.
• Citation: 295 P.3d 687,254 Or.App. 635
• Parties: In the Matter of R.J.T., a Minor Child. Jacquelin E. GARNER, Petitioner–Appellant, v. Marci Rae TAYLOR, Respondent–Respondent.
• Court: Oregon Court of Appeals

254 Or.App. 635

295 P.3d 687

In the Matter of R.J.T., a Minor Child.Jacquelin E. GARNER, Petitioner–Appellant,

v.Marci Rae TAYLOR, Respondent–Respondent.

064939; A144895.

Court of Appeals of Oregon.

Argued and Submitted Nov. 3, 2011.

Decided Jan. 30, 2013.

Kimberly A. Quach argued the cause for appellant. With her on the briefs was Lechman–Su & Quach, PC.

Todd A. Struble argued the cause and filed the brief for respondent.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

ORTEGA, P.J.

This case involves visitation rights awarded under ORS 109.119 to a nonparent of a minor child.¹ In 2007, petitioner, by a default judgment, obtained visitation rights with respect to the child. Respondent, the child's mother, later moved to set aside the default judgment pursuant to ORCP 71 B, and the trial court denied that motion. The relationship between the parties was contentious, and respondent did not cooperate in permitting petitioner to have contact with the child. Eventually, petitioner filed a motion to modify the judgment, seeking sole custody of the child or, alternatively, temporary custody of the child or extended periods of visitation. She also asked the court to hold respondent in contempt. The court entered a judgment in which it denied all of the relief sought by petitioner. In addition, in considering petitioner's motion, the court concluded that the correct statutory and constitutional analysis had never been applied in the case and, pursuant to ORCP 71 C, set aside the 2007 default judgment granting petitioner visitation rights.

Petitioner now appeals the court's judgment setting aside the 2007 default judgment and the court's judgment denying her motion for sole custody, temporary custody, or extended visitation. On appeal, she asserts that the trial court erred when it, sua sponte, set aside the default judgment. She also contends that the court erred in the legal standard it applied in considering the modification and in its determination that visitation was not in the child's best interest. We agree with petitioner that the trial court erred in setting aside the 2007 default judgment pursuant to ORCP 71 C, but otherwise affirm the decision of the trial court based on its conclusion, which finds adequate support in the record, that visitation was not in the child's best interest.

We set forth the background facts consistently with the trial court's findings, which are supported by the evidence. See Porter v. Griffin, 245 Or.App. 178, 182, 262 P.3d 1169 (2011) (an appellate court is bound by the trial court's findings of historical fact if there is any evidence in the record to support them). In 1998, while in a relationship with petitioner, respondent became pregnant by another with the child, who was born in April 1999. The pregnancy was not planned between petitioner and respondent and, after it occurred, their relationship was in question for a time. Later, petitioner and respondent discussed whether petitioner would adopt the child, but no adoption occurred. During the course of the relationship, the parties lived in Washington and each party had her own home. They spent significant time together at petitioner's residence after the child was born. Before the child turned two, petitioner and respondent ended their intimate relationship, and respondent and the child moved from Washington to a home in Siletz, Oregon. ² Respondent has continued to live in the same home during the course of this case.

After respondent moved to Oregon, she and petitioner continued to be friends and remained involved in each other's lives. Respondent and the child frequently visited petitioner in Seattle, and petitioner also visited Oregon. In early 2006, during a time of personal crisis, respondent asked petitioner if the child could stay with her while respondent sought alcohol and drug treatment. To that end, she executed a document temporarily delegating to petitioner powers regarding the care and custody of the child.

Petitioner proceeded to take the child, then age six, to Washington and enroll him in school. Then, less than a month after respondent had signed the document delegating parental powers, petitioner filed in Washington a petition seeking nonparent custody of the child. Because it found that Oregon was the child's home state, that court did not adjudicate the petition. Petitioner later filed a petition in Lincoln County to determine custody and parenting time pursuant to ORS 109.119; the court found that petitioner could not obtain custody of the child, ordered her to return the child to respondent (who by that time had revoked the delegation of parental powers), and dismissed the petition. As a result, petitioner returned the child to respondent's care in June 2006, after he had been in her care for approximately four months.

Five months later, petitioner filed a petition pursuant to ORS 109.119(3)(b) to obtain visitation or contact rights to the child. Although she was served with the petition, respondent failed to file an answer, and, in January 2007, the court entered a default judgment. Although respondent sought to have that judgment set aside, the court denied that relief, and respondent did not appeal that decision.

After entry of the default judgment granting visitation rights, petitioner filed a number of contempt actions against respondent for not allowing visitation. In one of those proceedings, the court considered whether it was in the child's best interest that visitation be changed, and ultimately it modified visitation so that petitioner was entitled to correspondence, to two telephone calls per week, to attend the child's school and sporting events, and to attend tribal events open to the public.

Then, in 2009, petitioner again sought to modify the judgment, asking for sole legal custody of the child or, alternatively, temporary custody or extended periods of visitation. After an evidentiary hearing that lasted a number of days, the court entered judgments denying petitioner's motion and also setting aside the January 2007 default judgment that originally granted petitioner visitation rights. The court explained its reasoning in extensive written findings. It observed that “the motion to obtain sole custody required the court to review [p]etitioner's motion under ORS 109.119 and exceeded the scope of requesting * * * a modification of an existing judgment.” According to the court, “the previously assigned judge never adjudicated the issue as to whether [p]etitioner met the statutory criteria to be granted parenting rights or visitation rights, nor were [r]espondent's constitutional rights under [Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000),] ever addressed.”

The court then reviewed the evidence that had been presented and concluded that (1) petitioner did not have, either at the time of the hearing or at the time the original petition in was filed in 2006, a child-parent relationship that would support her obtaining custody of the child; (2) petitioner did not have an ongoing personal relationship with the child such that she could obtain visitation; (3) even if petitioner did have an ongoing personal relationship with the child, she could not rebut the presumption under ORS 109.119(2) that the legal parent acts in the child's best interest; and (4) even if that presumption were rebutted, visitation between petitioner and the child was not in the child's best interest and, in fact, petitioner's actions had “ultimately be[en] harmful to the child.”

In addition to denying petitioner custody or increased visitation, the court concluded that it had authority under ORCP 71 C to grant relief from the default judgment that originally granted petitioner visitation. Having determined that, in entering the default judgment, the court “did not apply the correct statutory analysis” or consider respondent's constitutional rights, the court ordered that the 2007 default judgment be set aside. Petitioner appeals, raising three assignments of error.

In her first assignment of error, petitioner contends that the trial court erred “when it, on its own motion, set aside” the 2007 default judgment. According to petitioner, ORCP 71 C does not provide a sufficient basis for the court's action. We review a trial court's decision to set aside an earlier judgment under ORCP 71 for abuse of discretion. Mary Ebel Johnson, P.C. v. Elmore, 221 Or.App. 166, 170, 189 P.3d 35,rev. den.,345 Or. 301, 194 P.3d 147 (2008). “If the trial court's decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the trial court did not abuse its discretion.” State v. Rogers, 330 Or. 282, 312, 4 P.3d 1261 (2000).

Here, we agree with petitioner that the trial court abused its discretion in sua sponte setting aside the 2007 default judgment pursuant to ORCP 71 C. Pursuant to ORCP 71 C, the court retains

“the inherent power * * * to modify a judgment within a reasonable time, * * * the power * * * to entertain an independent action to relieve a party from a judgment, * * * the power * * * to grant relief to a defendant under Rule 7 D(6)(f), [and] the power * * * to set aside a judgment for fraud upon the court.”

“It is well settled that a trial court can exercise its inherent authority to vacate a judgment only to make a technical amendment, to correct an error of the court, or in other extraordinary circumstances.” Kneefel v. McLaughlin, 187 Or.App. 1, 5, 67 P.3d 947 (2003) (internal quotation marks omitted). “Extraordinary circumstances typically involve some type of fraud or overreaching by one of the parties.” Id. at 6, 67 P.3d 947 (internal quotation marks omitted); see Blue Horse v. Sisters of Providence, 113 Or.App. 82, 87, 830 P.2d 611,rev. den.,314 Or. 727, 843 P.2d 454 (1992) ( “[A] court may exercise its inherent power to modify or vacate * * * on a showing of fraud or overreaching by one...