In re Epler, CC 04C33678

CourtSupreme Court of Oregon
Writing for the CourtBALDWIN, J.
PartiesIn the Matter of the MARRIAGE OF John Paul EPLER, Respondent on Review, and Andrea Michelle Epler, nka Andrea Michelle Walker, Petitioner on Review.
Decision Date26 December 2014
Docket NumberCC 04C33678,CA A148643,SC S061818.

356 Or. 624
341 P.3d 742

In the Matter of the MARRIAGE OF John Paul EPLER, Respondent on Review
and
Andrea Michelle Epler, nka Andrea Michelle Walker, Petitioner on Review.

CC 04C33678
CA A148643
SC S061818.

Supreme Court of Oregon, En Banc.

Argued and Submitted June 23, 2014.
Decided Dec. 26, 2014.


Richard F. Alway, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs was Philip F. Schuster, II, Portland.

Mark Kramer, Kramer and Associates, Portland, argued the cause and filed the brief for respondent on review. With him on the brief were Pete Meyers and Graham C. Parks, Certified Law Student.

Katelyn B. Randall, Portland, and Robin J. Selig, Portland, filed the brief on behalf of amici curiae Legal Aid Services of Oregon and Oregon Law Center.

Opinion

BALDWIN, J.

356 Or. 626

The issues presented in this case are (1) whether the legal presumption described in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion), that a fit parent acts in the best interests of her child, applies to a modification proceeding in which petitioner (mother) seeks to modify a stipulated dissolution judgment that granted legal custody to respondent (grandmother); and (2) whether mother must demonstrate a substantial change in circumstances to modify the dissolution judgment. The trial court denied mother's motion to modify the judgment and grant custody to her based on the change-in-circumstances rule and the best interest of the child, and the Court of Appeals affirmed. Epler and Epler, 258 Or.App. 464, 466, 309 P.3d 1133 (2013).

For the reasons that follow, we affirm the decision of the Court of Appeals, but base our decision on different reasoning. We conclude that (1) mother is not entitled to the Troxel presumption that her custody preference is in the child's best interest and (2) mother was not prejudiced when she was held to the substantial change-in-circumstances rule. Ultimately, we affirm the trial court's determination that a modification of

341 P.3d 744

the custody provisions of the judgment is not in the best interest of the child.

Mother requests that we exercise our discretion to review this case de novo. Assuming arguendo that we have discretion to consider the matter de novo even though the Court of Appeals did not, see ORS 19.415(4), we do not find it necessary to do so: The facts are essentially undisputed. Accordingly, we limit our review to questions of law. We take the following facts from the Court of Appeals opinion and from additional undisputed facts in the record.

Daughter, who was approximately seven years old at the time of the hearing on mother's motion, has lived with her paternal grandmother for her entire life. Mother and father lived with grandmother in Oregon when daughter was born in 2003. When daughter was approximately six months old, mother and father separated, father left Oregon, and mother and daughter continued to live with grandmother. Three months after the separation, mother

356 Or. 627

moved out of grandmother's residence and left daughter in grandmother's sole care. In the months that followed, mother struggled with depression, started drinking alcohol heavily, and was unable to maintain steady employment. Mother then decided to move to Virginia. Before mother moved, father and grandmother engaged legal counsel, who prepared a marital settlement agreement.

The marital settlement agreement provided:

“Husband a[n]d Wife acknowledge that Paternal Grandmother * * * has been the primary custodian of [daughter] since [daughter]'s birth in 2003. Through this agreement, it is the intention of the parties to formalize Grandmother's custody, and provide for both Husband and Wife to pay child support to Grandmother for [daughter]'s benefit.
“ * * * * *
“Husband and Wife desire that paternal grandmother * * * be awarded sole legal and physical custody of their minor child, * * * subject to the joint right of both Husband and Wife to equally share the parenting time provided in Marion County SLR 8.075 * * *, and with the understanding that Husband's parenting time will include Grandmother.”

Mother and father signed the marital settlement agreement in December 2004, and the trial court entered a stipulated dissolution judgment based on that agreement in March 2005.

Mother first filed a motion to modify custody in 2006 but voluntarily dismissed that motion. Two years later, in 2008, she filed a second motion to modify custody and, in the alternative, to modify parenting time and child support. That 2008 motion is the filing at issue in this case. In her motion to modify custody, mother argued that she was entitled to a legal presumption that she acted in the best interests of her child. Mother cited ORS 109.119(2)(a) and the Due Process Clause of the Fourteenth Amendment to the United States Constitution to support her motion. After a hearing, the trial court denied mother's motion in a letter opinion. The court found that (1) mother had failed to prove that a substantial change in circumstances had occurred since the stipulated dissolution judgment and (2) modification of the dissolution judgment would not be in daughter's

356 Or. 628

best interest. The court did not address mother's requests to modify parenting time or child support.

Mother appealed, and the Court of Appeals affirmed the trial court's custody ruling and remanded for the trial court to rule on mother's request to modify parenting time and child support. Epler, 258 Or.App. at 466, 309 P.3d 1133. The Court of Appeals first concluded that the trial court did not err in determining that mother had failed to carry her burden of showing a substantial change in circumstances or in determining that modifying the judgment would not be in daughter's best interest. Id. at 475–77, 309 P.3d 1133. The court further concluded that ORS 109.119 did not apply to this modification proceeding and that “[n]either ORS 109.119(2)(c) nor any other provision of ORS 109.119 makes the presumption in favor of parents in ORS 109.119(2)(a) applicable to mother's motion to modify the stipulated dissolution judgment in this case.” Id. at 477–78, 309 P.3d 1133.

341 P.3d 745

The Court of Appeals also rejected mother's contention that the trial court was required, under Troxel, to presume that a modification of the custody provision was in daughter's best interest. Id. at 478–84, 309 P.3d 1133. In the court's view, the point at which the state “inject[ed] itself into the private realm of the family,” for Troxel purposes, was when the trial court entered the parties' stipulated dissolution judgment. Id. at 481, 309 P.3d 1133 (internal quotation marks omitted). At that point, the Court of Appeals reasoned, the trial court gave mother's custodial preference the requisite special weight, thereby satisfying the requirements of due process. Id. (“That is all that Troxel requires in this case.”).

Judge Duncan wrote a concurring opinion, in which she expressed her view that

“(1) mother was required to establish a substantial change in circumstances in order to have the custody judgment modified, (2) the trial court did not err in concluding that mother had failed to establish such a change, and (3) because mother had failed to establish the requirement for the modification that she requested, we need not decide whether the trial court was required to presume that mother's requested modification was in child's best interests.”

Id. at 488, 309 P.3d 1133 (Duncan, J., concurring).

356 Or. 629

Judge Egan wrote a dissenting opinion, expressing his view that “the trial court erred by failing to give special weight to mother's determination of daughter's best interests as required by the Fourteenth Amendment to the United States Constitution.” Id. at 492, 309 P.3d 1133 (Egan, J., dissenting). The dissent disagreed with the majority's determination that the Troxel presumption was applied in mother's favor when the parties entered the stipulated dissolution judgment. The dissent argued that the court should not conclude that mother was not entitled to the parental presumption because she had voluntarily relinquished custody of daughter: “To say, under those circumstances, as the lead opinion does, that that decision permanently rendered mother an unfit parent—i.e., one who is not entitled to the Troxel presumption—penalizes mother for a decision that mother deemed to be in the daughter's best interests.”Id. at 500, 309 P.3d 1133.

On review, mother reprises her basic argument that she is entitled to a Troxel presumption that her custody preference is in daughter's best interest. She also argues that requiring her to demonstrate a substantial change in circumstances to regain custody of daughter violates her due process rights under Troxel. Grandmother, for her part, contends that Troxel does not apply in this case, because mother is seeking...

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4 practice notes
  • Applying the UCCJEA in Family Law
    • United States
    • Family Advocate Nbr. 43-4, April 2021
    • April 8, 2021
    ...no longer applies and the burden is on the parent to show a material change in circumstance. See, e.g. , In re Marriage of Epler , 341 P.3d 742 (Or. 2014) (refusing to apply parental presumption where child had been in sole care of grandmother for seven years pursuant to stipulated decree).......
  • Botofan-Miller v. Miller, CC C104720DRA (SC S065723)
    • United States
    • Supreme Court of Oregon
    • August 15, 2019
    ...in child’s best interest. Appellate courts review the trial court’s best interest determination for abuse of discretion. Epler and Epler , 356 Or. 624, 636, 341 P.3d 742 (2014) (so holding). That is, the court will uphold the trial court’s best interest determination unless that court exerc......
  • Third-Party Custody, Parental Liberty, and Children's Interests
    • United States
    • Family Advocate Nbr. 43-4, April 2021
    • April 16, 2021
    ...no longer applies and the burden is on the parent to show a material change in circumstance. See, e.g. , In re Marriage of Epler , 341 P.3d 742 (Or. 2014) (refusing to apply parental presumption where child had been in sole care of grandmother for seven years pursuant to stipulated decree).......
  • Renton v. Webber, DR12020251
    • United States
    • Court of Appeals of Oregon
    • February 24, 2016
    ...parenting time" apply to the proceeding); ORS 107.135(1) (allowing for modification of a custody judgment); see also Epler and Epler, 356 Or. 624, 634–35, 341 P.3d 742 (2014)368 P.3d 74( "Generally, a parent seeking modification under ORS 107.135 must show that (1) circumstances r......
2 cases
  • Botofan-Miller v. Miller, CC C104720DRA (SC S065723)
    • United States
    • Supreme Court of Oregon
    • August 15, 2019
    ...in child’s best interest. Appellate courts review the trial court’s best interest determination for abuse of discretion. Epler and Epler , 356 Or. 624, 636, 341 P.3d 742 (2014) (so holding). That is, the court will uphold the trial court’s best interest determination unless that court exerc......
  • Renton v. Webber, DR12020251
    • United States
    • Court of Appeals of Oregon
    • February 24, 2016
    ...parenting time" apply to the proceeding); ORS 107.135(1) (allowing for modification of a custody judgment); see also Epler and Epler, 356 Or. 624, 634–35, 341 P.3d 742 (2014)368 P.3d 74( "Generally, a parent seeking modification under ORS 107.135 must show that (1) circumstances r......
2 books & journal articles
  • Applying the UCCJEA in Family Law
    • United States
    • Family Advocate Nbr. 43-4, April 2021
    • April 8, 2021
    ...no longer applies and the burden is on the parent to show a material change in circumstance. See, e.g. , In re Marriage of Epler , 341 P.3d 742 (Or. 2014) (refusing to apply parental presumption where child had been in sole care of grandmother for seven years pursuant to stipulated decree).......
  • Third-Party Custody, Parental Liberty, and Children's Interests
    • United States
    • Family Advocate Nbr. 43-4, April 2021
    • April 16, 2021
    ...no longer applies and the burden is on the parent to show a material change in circumstance. See, e.g. , In re Marriage of Epler , 341 P.3d 742 (Or. 2014) (refusing to apply parental presumption where child had been in sole care of grandmother for seven years pursuant to stipulated decree).......

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