In re Finney-Chokey

• Decision Date: 24 August 2016
• Docket Number: A157466
• Parties: In the Matter of the Marriage of Jane Finney–Chokey, Petitioner–Respondent, and Shane Russell Chokey, Respondent–Appellant.
• Court: Oregon Court of Appeals

280 Or.App. 347

381 P.3d 1015

In the Matter of the Marriage of Jane Finney–Chokey, Petitioner–Respondent, and Shane Russell Chokey, Respondent–Appellant.

A157466

Court of Appeals of Oregon.

Argued and submitted November 4, 2015.

August 24, 2016

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

Mark Johnson Roberts argued the cause for respondent. With him on the brief was Gevurtz, Menashe, Larson & Howe, P.C.

Before Lagesen, Presiding Judge, and Garrett, Judge, and Schuman, Senior Judge.

LAGESEN

, P.J.

In dissolving her marriage to father, mother requested that she be awarded custody of the couple's two-year-old daughter, E, and also that she be permitted to move with E from Portland to mother's hometown in the United Kingdom. Father did not oppose mother's request for custody, but father did oppose the requested move. The trial court determined that the move would be in E's best interest and granted mother's request. It then entered a general judgment of dissolution of marriage that, among other things, approved the requested move and provided that all of father's parenting time would be in the United Kingdom until E turned eight, at which point father would be entitled to have half of his parenting time in the United States (if father had not opted to move to the United Kingdom himself).

On appeal from that judgment, father contends that the trial court erred by approving the move, and by imposing the geographic restriction on father's parenting time. For the reasons that follow, we conclude that the trial court correctly applied the applicable law in approving the relocation, and did not abuse its discretion in determining that the move to the United Kingdom was in E's best interests. However, we conclude that the trial court abused its discretion by requiring that father exercise all of his parenting time in the United Kingdom until E turns eight; although the record would permit the imposition of a geographic restriction of a more limited duration, nothing in it permits the conclusion that it is in E's best interests for the restriction to extend until she reaches age eight. We therefore reverse and remand for the trial court to reconsider the extent to which a geographic restriction on father's parenting time is in E's best interests.

I. FACTUAL AND PROCEDURAL BACKGROUND¹

Mother is from Brighton in the United Kingdom, where her family still lives. Father is from Indiana, where his family still lives. The parties met in Prague in 2003, while both were teaching English. After quitting their teaching jobs, the two traveled and then lived in France for several months. They decided to marry and were wed in Scotland in December 2004. After their wedding, they returned to mother's hometown, where they lived for about seven months, at which point the couple moved to California so that mother could pursue a degree in Chinese Medicine. Although mother considered pursuing her degree in the United Kingdom, she chose to do so in California because father, having been away from the United States for a long time, wanted to return. Mother completed her degree in December 2009, and the couple moved to Talent, Oregon, a month later. They did so because father wanted to live in Oregon, but not in a rainy part of the state. The parties lived together in Talent until May 2013, during which time mother gave birth to E in July 2012.

Throughout the parties' marriage, mother regularly found employment, but father did not. Father's only significant employment during the parties' relationship was the teaching job that he had held when the parties first met in 2003. During their time in Talent, mother worked full time as a medical assistant before E was born and also worked briefly in a part-time job at an acupuncture clinic after E's birth. When the parties had first moved to Talent, mother had tried for six months to establish a practice in Chinese Medicine but was unable to establish the practice in that time and, for that reason, sought other employment to earn income for the family. Father was not gainfully employed while the parties lived in Talent, but sometimes sold books on the internet and performed odd jobs. Father also obtained money from his parents, and his parents purchased a house in Talent in 2012, permitting the parties to live in it rent free.

After E was born, mother was her primary caregiver. Father handled E's early morning feedings, but mother handled the rest of E's care. Father displayed an “interest and good attitude” toward E, but played a secondary role in providing care for her.

In May 2013, the parties had a fight that led to mother's decision to dissolve the marriage. The fight ended with father directing mother to leave the house with E and return to the United Kingdom. Mother had no place to stay in or near Talent, and E needed a passport to travel to the United Kingdom, so mother went to Indiana to stay with father's parents while E's passport application was processed. Father contacted mother while she was there and told her that she would need to return to Oregon for the parties to obtain a divorce.

Mother returned with E to Oregon, and found temporary housing in Portland. She filed for dissolution in Multnomah County in June 2013. Mother wanted to stay in Portland during the pendency of the proceedings because she did not have job opportunities or a support network in or near Talent and thought that Portland would provide more opportunities both for E and for her. Father requested that the court order mother to return to Talent with E, but the court instead entered an order directing that mother and E live in Portland during the proceedings. At the time, mother informed the court that she wanted to move with E to the United Kingdom after the divorce was finalized, unless the court ruled that she was not permitted to do so, in which case she would establish a permanent residence in Portland. The court concluded that E should reside in Portland with mother during the dissolution proceedings. Father then informed the court that he would move to Portland to be closer to E, and the court established a parenting time schedule for the pendency of the proceedings.

Two months later, pursuant to a stipulation by the parties, the court appointed Dr. Vien to perform a comprehensive custody and parenting plan evaluation with respect to E. Vien conducted the evaluation by interviewing parents, their families, and their friends, and issued a report on the evaluation in January 2014. In the report, Vien recommended that the court allow E to relocate to the United Kingdom because the move would provide a better living situation for E. Vien explained that the family had no “vocational, social, educational and financial ties to Portland,” but had substantial ties to the United Kingdom, given that they previously had lived there at the start of their marriage, and had the support of maternal relatives there. Vien opined that it would be easy for the family to assimilate to life in the United Kingdom given their previous experience living there, and that “[r]elocation will allow [E] affiliation with stable and available family members, promoting her security, trust and identity formation.” Vien further opined that E would have greater opportunities for enrichment in the United Kingdom than she would in Portland, in light of the challenges parents would face in Portland as they “attempt to achieve gainful employment and residential permanency while arranging dependable childcare for their offspring.” Vien further concluded that the timing for the proposed relocation was optimal, in light of E's age and the fact that moving would “permit[ ] parents a ‘new start’ without interruption of commitments, routines, and relationships in Oregon.”

Upon the parties' requests, Vien later issued an addendum to his report, addressing the appropriate long-distance parenting plan for E, should the court approve E's relocation but father remain in Oregon. Vien opined:

“With respect to the long distance parenting plan between Oregon and the UK, quarterly contact between [father] and his daughter [E], is recommended. The parenting time should occur on an alternating basis in the UK and Oregon, initially consisting of five consecutive days for up to eight hours daily. At age four, the schedule should be expanded to seven consecutive days, including alternating overnight contact after the third day. At age seven, the seven day periods should be consecutive overnights including a two week (fourteen day) summer block in the US to allow for extended vacation travel. At age ten, the summer period should be expanded to a three week duration, permitting [father] extended access to promote [E's] paternal relationship. As [E] enters school, parenting time should correspond to holiday/vacation periods to minimize academic disruption to the child while allowing for unobstructed contact. It is also assumed that parenting time in Oregon will occur at [father's] residence and reasonable accommodations that will be arranged in the UK.”

After Vien issued his reports, the case proceeded to trial. The primary issue that the parties asked the court to resolve was whether mother would be permitted to relocate to the United Kingdom with E or whether, instead, E should remain in Portland. Before trial, the parties informed the court that they would stipulate that mother should have custody of E unless the court decided not to approve the relocation, and mother decided to move anyway. In that event, the parties agreed that E would stay with father. As to the relocation, the parties agreed that the issue for the court was whether it was in E's best interests under the factors listed in ORS 107.137(1)

. The court then heard five days of testimony and argument from the parties, their friends and their family members, addressing the relative costs and benefits to E of a move to the United Kingdom versus remaining in Portland. In her testimony, mother...