Garrett and Garrett

• Decision Date: 07 February 2007
• Docket Number: A128433.,040821.,980562.
• Citation: 152 P.3d 993,210 Or. App. 669
• Parties: In the Matter of the MARRIAGE OF Shawn D. GARRETT, Co-Petitioner-Appellant, and Brandy E. Garrett, nka Brandy Rugh, Co-Petitioner-Respondent. In the Matter of the Marriage of Shawn D. Garrett, Petitioner-Appellant, and Brandy E. Garrett, nka Brandy Rugh, Respondent-Respondent.
• Court: Oregon Court of Appeals

152 P.3d 993

210 Or. App. 669

In the Matter of the MARRIAGE OF Shawn D. GARRETT, Co-Petitioner-Appellant, and

Brandy E. Garrett, nka Brandy Rugh, Co-Petitioner-Respondent.

In the Matter of the Marriage of Shawn D. Garrett, Petitioner-Appellant, and

Brandy E. Garrett, nka Brandy Rugh, Respondent-Respondent.

980562.

040821.

A128433.

Court of Appeals of Oregon.

Submitted on Record and Brief January 4, 2007.

Decided February 7, 2007.

Nancy M. Brady filed the brief for appellant.

No appearance for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and CARSON, Senior Judge.

EDMONDS, P.J.

In this custody case, father appeals after the trial court modified prior custody judgments and awarded custody of the parties' two children to mother, with parenting time for father according to the 2004 Linn County Parenting Plan, plus one extra weekend every other month. Father makes three assignments of error: He asserts (1) that no substantial change of circumstances occurred justifying a change in custody of the parties' daughter; (2) that it is not in the best interests of both of the parties' children to change custody; and (3) that, in the event we affirm the change in custody, the trial court awarded too little parenting time to him. Mother has not responded in this court to father's appeal. We review de novo, ORS 19.415(3), and affirm.

At the time of trial, father had sole custody of the daughter pursuant to the parties' stipulated 1998 judgment of dissolution, and the parties had joint custody of their son, pursuant to a 2002 stipulated judgment. Father filed a motion to modify mother's parenting time with the daughter to conform to the "1998 Linn County Parenting Plan," and to grant him sole custody of the son, with parenting time for mother according to the 1998 plan. Mother counterclaimed, asking for sole custody of both children, with parenting time for father according to the Linn County plan.

"A petitioner seeking a change of custody must show (1) that after the original judgment or the last order affecting custody, circumstances relevant to the capacity of either the moving party or the legal custodian to take care of the child properly have changed, and (2) that considering the asserted change of circumstances in the context of all relevant evidence, it would be in the child's best interests to change custody from the legal custodian to the moving party."

Ortiz and Ortiz, 310 Or. 644, 649, 801 P.2d 767 (1990) (omitted).

In his first assignment of error, father argues that the trial court erred when it found, under the first step in Ortiz, that there was a substantial change of circumstances in regard to the care of the daughter. Because father had custody of the daughter, mother had the burden of showing a substantial change in circumstances regarding the daughter after the judgment dissolving the parties' marriage in 1998. In finding a change of circumstances, the trial court determined that

"there have been multiple changes in the actual parenting time arrangements between the parties as well as the primary custody of the youngest child [son] since the decree. * * * There has been a pattern of interference, through active efforts and through passive resistance on father's part, which has adversely affected mother's relationship with her children."

At trial, testimony by the parties showed that, since 1998, both mother and father have moved numerous times: father from Alaska to Lebanon, Oregon, then back and forth between Lebanon and Eugene, and mother from Alaska to Oregon, Florida, Louisiana, and back to Oregon in 1999. Initially, the parties changed physical custody of the children several times (although in the last few years father primarily had physical custody) and were fairly flexible with giving each other parenting time. Beginning in September 2003, however, communication between the parties started to break down, and conflicts arose over parenting schedules, transportation of the children, trade-off times, child support, medical costs, and other issues.

A core issue between the parties became father's anger in responding to those conflicts. The evidence in that regard is in dispute. Father testified that he "[did]n't think [he'd] ever lost his temper[.]" However, wife testified that, during the marriage, father was verbally and physically abusive to her and, after the parties' dissolution, he continued to be verbally abusive when they talked on the phone or exchanged the children. On one occasion, a physical altercation occurred between father, father's mother, mother, and mother's fiancé, resulting in the police being called and a restraining order being entered against father. Mother's fiancé, who is a police officer, testified that father had screamed at and threatened mother on the phone prior to that incident.

Around Christmas 2004, another disagreement arose regarding visitation, which resulted in a police officer from a different agency going to father's house to try to convince father to let the children go to mother's house, according to a prior agreement between the parties. That police officer testified that father was "defiant and angry," that father told the officer that he would have to arrest him, that father stated that he would sue the officer, and that father slammed the door in the officer's face. The children were present during the incident, and the officer testified that the daughter was "old enough to understand what was going on[,] and she was clearly upset." The officer also testified that, on the day of the hearing in this proceeding, father confronted him in the courthouse hallway and "rant[ed]" at him.

The escalation of father's anger after the judgment of dissolution could constitute a substantial change of circumstances that would warrant the change of custody of the children to mother. In Francois and Francois, 179 Or.App. 165, 171, 39 P.3d 265 (2002), the father argued that his hostility and interference with the mother's parenting time could not, as a matter of law, constitute a substantial change of circumstances. We rejected that argument, observing that "[a] change of circumstances, by very definition, is a change in `the capacity of either the moving party or the legal custodian to take care of the child properly.'" Id. (quoting Ortiz, 310 Or. at 649, 801 P.2d 767). A component of the capacity of a custodial parent to take care of a child properly is the promotion by the custodial parent of a healthy relationship between the children and the non custodial parent. Thus, depending on the facts of a particular case, anger, hostility, and interference with a non custodial parent's parenting time may constitute a substantial change of circumstances for purposes of a change of custody.

In this case, father claims that, on de novo review, we should find in accordance with his testimony that he never lost his temper, that he has been the more flexible party, and that mother has been the uncooperative party causing the conflicts between the parties. We note, however, that the trial court found as follows:

"Mother testified in a straight forward manner. She did not tend to qualify her answers. Her demeanor was consistent with a finding of credibility.

"Father testified well except when asked to deny abuse allegations. He then tended to use qualifiers, like that he did not recall saying or doing this or that. His overall demeanor when answering those questions along with the nature of his responses indicate a willingness to minimize abuse allegations against him."

The trial court also found that the police officer who had gone to father's residence to deal with the Christmas schedule

"testified in a manner that appeared disinterested and credible. The court also notes that there is no evidence he knows either party or that he has any reason to be prejudiced in any way."

We agree with the trial court's findings. The hearing was essentially a swearing match between mother and father, and the police officer was the only disinterested witness. Like the trial court, we are inclined to give the officer's testimony more weight for that reason. As to the competing testimony of the parties, the trial court was in the best position to assess the credibility of the parties. The trial court found father's testimony that he does not have a problem with anger to be not credible. For example, the court commented,

"Father argues that police officers do not assist him and are against him. The court notes that police officers who do not know him from entirely different police agencies have experienced his anger and acted upon it. His protestations are not credible."

In light of the above evidence, we are persuaded that the escalation of father's anger in his dealings with mother constitutes a substantial change of circumstances that warrants a determination about whether the best interests of the children require a change of custody of the daughter. As to the son, ORS 107.169(5) provides that the "[i]nability or unwillingness to continue to cooperate [in a joint custody arrangement] shall constitute a change of circumstances sufficient to modify a joint custody award." Consequently, we turn to the issue of the best interests of both children.

In his second assignment of error, father argues that the trial court erred when it found that it was in the best interests of the children under ORS 107.137(1) that mother be awarded custody.¹ He asserts that the trial court failed to give proper weight to the fact that he had been the primary caretaker of the...