In re Johnson
| Decision Date | 10 March 2021 |
| Docket Number | A167235 |
| Citation | 483 P.3d 1174,309 Or.App. 682 |
| Parties | In the MATTER OF the MARRIAGE OF Amy JOHNSON, nka Amy Royster, Petitioner-Appellant, and Rick Johnson, Respondent-Respondent. |
| Court | Oregon Court of Appeals |
George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.
Kristin M. Larson argued the cause for respondent. Also on the briefs was Hansen & Larson, LLC.
Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.
This is an appeal of a judgment modifying child custody. When J was an infant, mother was awarded sole legal custody of her, in a custody order attendant to the parties’ marital dissolution judgment. When J was eight years old, the trial court changed legal custody from mother to father, after determining that there had been a substantial and unanticipated change of circumstances. Mother appeals the modification judgment, arguing that the facts are legally insufficient to establish a change of circumstances for purposes of custody modification. We agree with mother and, accordingly, reverse.
In making an initial custody determination, the trial court's focus is entirely on the child's best interests. See ORS 107.137. The court must assess the six statutory factors in ORS 107.137 to decide which parent it will be in the child's best interest to award custody to. Id. In this case, when J was an infant, the trial court necessarily found that it was in J's best interest for mother to have custody of her. Since that time, mother has had sole legal custody of J, while father has had significant parenting time.
Once a court has entered a custody order, the law favors custodial stability for the child. Toward that end, a court may not modify an existing custody order unless the parent seeking a change of custody proves a "change of circumstances." State ex rel Johnson v. Bail , 325 Or. 392, 396, 938 P.2d 209 (1997). "The requirement that there be a change in circumstances before a court will consider modifying custody is a rule of long standing" that was first discussed in caselaw over a hundred years ago. Id . at 397, 938 P.2d 209. As explained in Merges v. Merges , 94 Or. 246, 254, 186 P. 36 (1919), a final custody order "can be changed or superseded only by a showing that for some reason the [custodial parent] is not competent to care for the child or that some condition has arisen rendering [the child's] further care and custody by the [custodial parent] inimical to the child's welfare."
"The change of circumstances rule is designed primarily to avoid repeated litigation over custody and to provide a stable environment for children." Ortiz and Ortiz , 310 Or. 644, 649, 801 P.2d 767 (1990). If the custodial parent remains fit to care for the child, it is "best under the circumstances to let well enough alone until new conditions intervene to disturb the status established by that decree." Merges , 94 Or. at 257-58, 186 P. 36 ().
Thus, only after a qualifying change of circumstance has been proved may a trial court consider disrupting an existing custody order. It is a "two-step inquiry." Johnson , 325 Or. at 397, 938 P.2d 209. First, the moving parent must show that, since entry of the most recent custody order, "circumstances relevant to the capacity of either the moving party or the legal custodian to take care of the child properly have changed." 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). The change must be both unanticipated and material to the child's welfare. Teel-King and King , 149 Or. App. 426, 429-30, 944 P.2d 323 (1997), rev. den. , 327 Or. 82, 961 P.2d 216 (1998). If a change of circumstances is proved, then, second, the court must consider the change of circumstances "in the context of all relevant evidence" to determine whether changing custody to the moving party would be in the child's best interests. Buxton v. Storm , 236 Or. App. 578, 592, 238 P.3d 30 (2010), rev. den. , 349 Or. 654, 249 P.3d 542 (2011). It is at the second step that the court reassesses the six factors in ORS 107.137.
Since Merges , we and the Supreme Court have used varying language to describe the legal standard at the first step. It is often described as requiring a material (or substantial) and unanticipated change of circumstances relevant to "the capacity of either the moving party or the legal custodian to take care of the child." Boldt , 344 Or. at 9, 176 P.3d 388 ; see also, e.g. , Botofan-Miller and Miller , 365 Or. 504, 520, 446 P.3d 1280 (2019), cert. den. , ––– U.S. ––––, 141 S. Ct. 134, 207 L.Ed.2d 1079 (2020) (same); Johnson , 325 Or. at 397, 938 P.2d 209 (same).1 Or, it is described as requiring a material (or substantial) and unanticipated change of circumstances that has "injuriously affected the child" or, referring back to some language from Merges , has affected the custodial parent's "ability or inclination to care for the child in the best possible manner." E.g. , Botofan-Miller , 365 Or. at 520-21, 446 P.3d 1280 .
Because the latter formulation of the legal standard could be misunderstood if read out of context, we pause to clarify what is meant by a change of circumstances that has affected the custodial parent's "ability or inclination to care for the child in the best possible manner." As is apparent from Merges , the source of that language, it does not refer to a general analysis of the child's "best interests" to determine which parent will "best" care for the child. See Merges , 94 Or. at 254, 186 P. 36. Indeed, if deciding whether a change of circumstances had occurred entailed the same analysis as the "best interests" inquiry, then the modification analysis would involve only one step, rather than two, Johnson , 325 Or. at 397, 938 P.2d 209, and would be no different than deciding initial custody.
In considering whether an asserted change of circumstances has affected the custodial parent's "ability or inclination to care for the child in the best possible manner," Boldt , 344 Or. at 9, 176 P.3d 388, it is therefore important to keep in mind the fundamental standard for a change of circumstances—that the custodial parent is no longer "competent to care for the child" or that some condition has arisen that renders the child's continued care and custody by the custodial parent to be "inimical to the child's welfare," Merges , 94 Or. at 254, 186 P. 36 —as well as the primary purpose of the requirement—"to avoid repeated litigation over custody and to provide a stable environment for children," Ortiz , 310 Or. at 649, 801 P.2d 767. Doing so, it is readily apparent that the task of the court is not to decide what it believes is the "best" parenting choice. That is, on a motion to modify custody, where two parents disagree about what is best for a child, on issues about which reasonable minds can disagree, it is not the court's role to decide with which parent it agrees. Rather, the court is to assess the custodial parent's ability and inclination to care for the child in the best possible manner, even if the other parent or the court might favor a different parenting approach, so long as the child is not being "injuriously affected" by the custodial parent's parenting choices.
Finally, " ‘the amount of change necessary to justify a modification of a decree varies with the facts of the individual case.’ " Botofan-Miller , 365 Or. at 521, 446 P.3d 1280 (quoting Gonyea v. Gonyea , 232 Or. 367, 372, 375 P.2d 808 (1962) ). The facts must be legally sufficient to establish a change of circumstances, however, and existing caselaw illustrates the legal standard. For example, when the asserted change of circumstances involves "events of inadequate care and supervision," they "must be of such a nature or number reflecting a course of conduct or pattern that has had or threatens to have a discernable adverse effect upon the child." Buxton , 236 Or. App. at 592, 238 P.3d 30 (internal quotation marks and brackets omitted).
In Colson and Peil , 183 Or. App. 12, 22-24, 51 P.3d 607 (2002), the evidence was insufficient to establish a change of circumstances, where the mother had allowed the child, who had a learning disability and was distraught about his parents’ divorce, to miss a quarter of the school year and planned to move to Missouri even though the child did not want to move. By contrast, in Garrett and Garrett , 210 Or. App. 669, 672-74, 152 P.3d 993 (2007), the evidence was sufficient to establish a change of circumstances, where the father had engaged in a pattern of interference with the children's relationship with the mother, by interfering with her parenting time and engaging in verbal altercations and at least one physical altercation. The evidence also was sufficient to establish a change of circumstances in Botofan-Miller . In that case, over time, the mother's anxiety and mental health issues had rendered her unable to make timely medical decisions for the child, which led to the child not receiving vaccinations
on time and, worse, suffering medical consequences from an eye problem that could have led to permanent double vision but for the father forcing the issue of surgery. 365 Or. at 508-09, 446 P.3d 1280. The mother also had developed an unhealthy "anxious attachment parenting style" that was pervasive in nature and was having significant detrimental effects on the child. Id. at 509-11, 446 P.3d 1280.
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