In re Botofan-Miller

• Decision Date: 01 November 2017
• Docket Number: A161266
• Citation: 288 Or.App. 674,406 P.3d 175
• Parties: In the MATTER OF the MARRIAGE OF Loredana Elizabeth BOTOFAN-MILLER, Petitioner-Appellant, and Brett Robert MILLER, Respondent-Respondent.
• Court: Oregon Court of Appeals

288 Or.App. 674

406 P.3d 175

In the MATTER OF the MARRIAGE OF Loredana Elizabeth BOTOFAN-MILLER, Petitioner-Appellant, and Brett Robert MILLER, Respondent-Respondent.

A161266

Court of Appeals of Oregon.

Argued and submitted March 6, 2017.

November 1, 2017

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

David N. Hobson, Jr., Beaverton, argued the cause for respondent. With him on the brief was Hobson and Associates, LLC.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Mother appeals from a supplemental judgment changing the custody of a minor child to father and a second supplemental judgment awarding father attorney fees. As part of father's motion to show cause why he should not be granted sole custody, father contended that a change in circumstances since mother and father's original dissolution proceeding had occurred, justifying a change in custody of mother and father's child, S. Specifically, father alleged that mother has an anxiously attached parenting style that causes her difficulty in making medical and educational decisions for S and makes it difficult for her to get S to appointments and school on time. The trial court agreed with father. It listed six considerations that it concluded constituted changes of circumstance justifying a change in custody, decided that it was in S's best interest to change sole legal custody from mother to father, and awarded attorney fees to father.

On appeal, mother advances three assignments of error. First, she assigns error to the trial court's conclusion that a change of circumstances has occurred. Second, she assigns error to the trial court's decision that it was in S's best interest to change custody from mother to father. And, third, she assigns error to the trial court's decision to award attorney fees to father. Because we agree with mother that the trial court's findings and the evidence in the record supporting those findings are not legally sufficient to constitute a change of circumstances justifying a change in custody, we address only mother's first and third assignments of error. Accordingly, we reverse the judgment awarding custody to father and reverse the judgment awarding attorney fees to father.

Mother asks us to exercise our discretion to review the record de novo. We exercise our discretion to review de novo only in exceptional cases, and decline to do so here. ORAP 5.40(8). Instead, we are bound by the trial court's factual findings provided that they are supported by any evidence, and we review legal conclusions for errors of law. Sconce and Sweet, 249 Or. App. 152, 153, 274 P.3d 303, rev. den., 352 Or. 341, 288 P.3d 275 (2012). Under that standard, "we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Ibarra and Conn, 261 Or. App. 598, 599, 323 P.3d 539 (2014) (internal quotation marks omitted). We state the following relevant facts consistently with that standard.

The parties married in April 2009, separated in October 2010, and divorced in July 2011. During their separation and the pendency of their divorce, S lived with mother. Mother was initially granted sole legal custody of S, subject to father receiving parenting time as ordered by the court.

Prior to the original grant of custody, mother was having difficulty making medical decisions for S, including deciding if and when S should receive vaccinations. In fact, in a limited judgment entered prior to the judgment of dissolution, the trial court specifically found that "[t]here ha[d] been a significant gap in the health care of [S]." Taking mother's difficulties related to providing health care into account in awarding custody, in the judgment of dissolution, the court ordered that mother

"shall have sole medical decision-making authority as the custodial parent. However, the parties agree to take [S] to Dr. Harper at the Olson Pediatric Clinic until the parties mutually agree on a new pediatrician. [Mother] will confer with [S]'s pediatrician to ensure that a proper vaccination schedule is in place for [S]."

Also prior to the original grant of custody, mother had significant anxiety relating to her attachment to S. In the winter of 2011, mother had a temporary psychotic episode in the emergency room of a hospital that resulted in her being hospitalized overnight. The doctors at that hospital indicated that the episode was caused by stress related to the parties' divorce. More specifically, hospital records indicate that mother's stress related to her "concern[ ] about [father] having extended time with [S]."

Like mother's difficulties in making medical decisions, mother's anxiety related to her attachment to S—especially regarding her hospitalization—was known to father during the original divorce proceedings. Father sought and gained access to mother's medical records from that incident, as well as mother's other psychiatric and medical records, over mother's objections. Despite those concerns as noted, the trial court awarded mother sole custody of S, subject to father receiving parenting time as ordered by the court.

The parties proceeded to coparent without any difficulties requiring judicial intervention until October 2014 when father filed a motion to show cause as to why the judgment for dissolution should not be modified to allow father sole medical decision-making authority for S. Father eventually amended that motion to request an order to show cause why he should not be granted sole custody of S as well. Father disagreed with how mother took care of S's medical care and educational needs.

Specifically, regarding S's medical issues, father was concerned with mother's choice to have S undertake a full course of physical therapy to attempt to fix an ophthalmological condition before choosing surgery and mother's failure to timely vaccinate S in compliance with the original judgment of dissolution. Regarding S's education, father was concerned that mother was not "adequately address[ing] [S]'s educational needs" because mother had enrolled S in only two-and-one-half-months of preschool and had initially enrolled S in half-day rather than full-day kindergarten.

The trial court held a hearing on father's motion to show cause, at which father, mother, Dr. Charlene Sabin, a custody evaluator hired by both parties, and Dr. Landon Poppleton, a psychologist hired by mother, testified. At the conclusion of the hearing, the trial court determined that a change of circumstances had occurred since the original entry of the judgment of dissolution and that the best interests of the child were served by changing custody from mother to father. Accordingly, it issued a supplemental judgment effecting that change of custody.

In its written supplemental judgment, the trial court listed the circumstances that it believed constituted a significant enough change from when the original grant of custody was entered to justify a change of custody. Those were: (1) "[m]other * * * had struggled to implement the vaccination schedule as originally agreed to and ordered by the court"; (2) "[m]other * * * struggled to work with child's primary care providers at both the pediatric and ophthalmological levels"; (3) "[m]other has * * * struggled to maintain a timely relationship with * * * counselors and completing the course of treatment set forth" by a child therapy program where S was receiving treatment for behavioral issues; (4) "[m]other has frequently struggled to deliver [S] * * * to school on time"; (5) mother has reported behavioral issues with S that father has not; and (6) mother has an anxiously attached parenting style that will cause the previously mentioned problems to get worse as S grows older. The trial court also issued an additional supplemental judgment awarding father his attorney fees.

Mother appeals those judgments. As discussed, she argues that the trial court erred in concluding that a significant change of circumstances has occurred since the last judgment granting mother custody such that a change of custody is justified. Specifically, mother argues that, even assuming that the trial court's findings were factually correct, the trial court legally erred in concluding that a change of circumstances had occurred.

For the reasons stated below, we agree with mother and reverse.

As noted above, we review the trial court's decision to change custody for legal error. Sconce, 249 Or. App. at 153, 274 P.3d 303. Under ORS 107.135(1)(a), a "court may at any time after a judgment of annulment or dissolution of marriage or of separation is granted, upon the motion of either party * * * [s]et aside, alter or modify any portion of the judgment that provides for * * * the custody * * * of the minor children." A parent seeking a change in custody must demonstrate two things to effect that change. Boldt and Boldt, 344 Or. 1, 9, 176 P.3d 388, cert. den., 555 U.S. 814, 129 S.Ct. 47, 172 L.Ed.2d 23 (2008). First, the parent must show 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." Id. Second, the parent must show 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." Id. The parent requesting a change in custody bears the burden of proving a change in circumstances. Id. If that parent fails to carry his or her initial burden, the court does not consider whether a change in custody would be in the best interests of the child. Id. In this case, we do not address whether father proved that changing custody was in the best interest of S, because, as we discuss...