Hanson-Parmer and Parmer
Decision Date | 06 January 2010 |
Docket Number | 050487.,A133335. |
Citation | 225 P.3d 129,233 Or. App. 187 |
Parties | In the Matter of the MARRIAGE Of Liana Martha HANSON-PARMER, nka Liana Martha West, Petitioner-Appellant, and James Michael Parmer, Respondent-Respondent. |
Court | Oregon Court of Appeals |
Lorena Reynolds and The Reynolds Law Firm, PC, filed the opening brief for appellant. On the reply brief were Beth Crawford and The Reynolds Law Firm, PC.
James Michael Parmer filed the brief pro se.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.
Wife appeals a dissolution judgment, assigning error to the trial court's determination that husband is the psychological parent of her youngest son, D, and is entitled to visitation with him pursuant to ORS 109.119(3)(a). On appeal, the dispositive legal issue is whether husband had a "child-parent relationship," ORS 109.119(10)(a), with D that is a necessary statutory prerequisite to husband's right to visitation in this case. Because we conclude that husband failed to establish that he had a child-parent relationship with D, we reverse, in part.
We review de novo. ORS 19.415(3) (2007);1 Wurtele v. Blevins, 192 Or.App. 131, 133, 84 P.3d 225, rev. den., 337 Or. 555, 101 P.3d 809 (2004). The parties were married on August 17, 2001. They have three children, B, G, and C. During the marriage, wife's youngest son, D, was born. As discussed in more detail below, husband is not D's biological father. Husband and wife separated permanently in January 2005. Then, in March 2005, wife, who was pro se, filed a petition for dissolution of the parties' marriage.
The early procedural history of this case was complicated, and an extensive discussion would not benefit the bench, the bar, or the public. It is sufficient to make the following two points: First, it is clear from the various documents filed by the parties that husband and wife have three children—that is, B, G, and C. Those same documents, however, contain ambiguous references concerning the relationship between husband and D—that is, some documents appear to indicate that D is husband's child, while other documents appear to indicate that he is not. Second, in April 2005, the trial court issued a written decision concerning pretrial relief—which was reduced to a limited judgment in May— that awarded husband parenting time with all four children. Nonetheless, from the time of the parties' separation in January 2005 until July 2005, wife did not allow husband to see the children.
Ultimately, on July 15, 2005, by which point both parties had retained counsel, the trial court entered a second limited judgment for temporary custody, parenting time, and support. In that judgment, the trial court (1) awarded wife custody of the parties' three children and D; (2) stated that "[D] is currently considered the legal child of [husband]"; (3) awarded husband parenting time with all four children from "9:00 a.m. every Tuesday until 8:00 p.m. on Wednesday beginning July 5, 2005"; and (4) ordering husband "to pay child support." (Emphasis added.) Consistently with the award of parenting time in that judgment, husband began to see the children.
After entry of the limited judgment in July, the trial court allowed wife to amend her petition to add an allegation that her "youngest child, [D], is not the biological child of [husband]" and that she and "[husband] did not reside together at the time the child was conceived"; thus, "[t]he presumption of paternity has been rebutted." Wife then requested that husband admit both that he was not D's biological father and that he was not living with her when D was conceived.
Husband made those two admissions. Then, on December 7, 2005, after obtaining leave from the court, husband amended his response to wife's petition for dissolution to include a counterclaim pursuant to ORS 109.119.2 Specifically, husband alleged that,
During her closing argument at trial, wife's attorney responded to husband's claim under ORS 109.119 by asserting, in part, that
Ultimately, the trial court entered a general judgment of dissolution. As pertinent, the trial court found that "[husband] is the psychological parent of [D] * * * who was born to [wife] during the marriage, but who is not the biological child of [husband]." The court also awarded wife sole legal custody of all four children but awarded husband parenting time with them. Wife appeals.
(Internal quotation marks and brackets in original omitted.) However, for the reasons that we will explain, we agree with wife that husband has not demonstrated that he has a child-parent relationship with D pursuant to ORS 109.119(10)(a).
Under the express terms of the statute, to determine whether a child-parent relationship has been established, we examine the six months preceding December 7, 2005, the date that husband filed his counterclaim under ORS 109.119. It is undisputed that, for that six-month period, husband did not have physical custody of D. Thus, for husband to prevail he must have established that, in the terms of the statute, he "resid[ed] in the same household" as D "on a day-to-day basis."
As previously described, from July 2005 until he filed his counterclaim, husband consistently had parenting time with D from "9:00 a.m. every Tuesday until 8:00 p.m. on Wednesday." Even if we assume, for purposes of this opinion, that he had such parenting time for the entire six-month period preceding the filing of his counterclaim, that parenting time would be insufficient to satisfy the requirement that husband resided in the same household as D on a day-to-day basis. See Jensen v. Bevard, 215 Or.App. 215, 168 P.3d 1209 adh'd to as clarified on recons., 217...
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... ... not reside in the same household as the child on 420 P.3d 681 a day-to-day basis for purposes of ORS 109.119(10)(a)." Similarly, in Hanson-Parmer and Parmer , 233 Or.App. 187, 194, 225 P.3d 129 (2010), we held that "two days of parenting time each week * * * is * * * insufficient to establish ... ...
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In the Matter of The Custody of C.B.
... ... HansonParmer and Parmer, 233 Or.App. 187, 192, 225 P.3d 129 (2010) ([u]nder the express terms of the statute, to determine whether a child-parent relationship has been ... ...