IN RE MARRIAGE OF FRANCOIS

• Decision Date: 30 January 2002
• Parties: In the Matter of the MARRIAGE OF Damon O. FRANCOIS, Respondent, and Sonnet M. Francois, Appellant.
• Court: Oregon Court of Appeals

39 P.3d 265

179 Or. App. 165

In the Matter of the MARRIAGE OF Damon O. FRANCOIS, Respondent,

and

Sonnet M. Francois, Appellant.

C973005DR; A110737

Court of Appeals of Oregon.

Argued and Submitted November 1, 2001.

Decided January 30, 2002.

Brian J. Sunderland, Clackamas, argued the cause and filed the briefs for appellant.

Charles D. Gazzola, Portland, argued the cause for respondent. With him on the brief was Gazzola & Hull, P.C.

Before LANDAU, Presiding Judge, and BREWER and SCHUMAN, Judges.

LANDAU, P.J.

Mother appeals an order denying her motion for a modification of the dissolution judgment awarding father custody of the parties' children. On de novo review, ORS 19.125(3), we reverse and remand.

The parties were married in 1993 and have two minor children. They lived in Tigard, Oregon, where father worked as a produce manager at a local Albertson's. Mother worked for a stock brokerage firm approximately 12 hours each day, six days a week, earning $1,200 per month. The parties separated in 1997. They agreed to the dissolution of the marriage and that, in light of mother's work demands and small living space, father should have custody of the two children. Father filed the dissolution petition in August 1997. Mother entered no appearance, and a dissolution judgment was entered by default in March 1998, awarding father custody of the children and requiring mother to pay child support.

In September 1997, after the filing of the petition, father moved to Junction City to live with his parents; he transferred his employment to a local Albertson's. Following the entry of the dissolution judgment, mother quit her job and father allowed her frequent parenting time—she had physical custody of the children 75 percent of all weekends and visited them in Junction City between two and four weeknights each week. In January 1999, mother took a flexible, part-time job that allowed her to see the children frequently.

In March 1999, mother remarried. She quit her job in July 1999 and is now a full-time homemaker. She and her new husband purchased a large house, with room for both of the children. Meanwhile, father began to limit mother's parenting time.

In September 1999, mother moved for a modification of the dissolution judgment. The trial court bifurcated the proceedings, requiring that, before engaging in an inquiry concerning the best interests of the children, mother must establish a substantial change in circumstances. Mother offered evidence of the following as substantial changes in circumstances: (1) her improved financial condition; (2) her ability to stay at home and care for the children on a full-time basis; and (3) increasing personal hostility on the part of father toward her. Father took the position that none of those changes constitutes a substantial change in circumstances. The trial court agreed and dismissed mother's motion.

On appeal, mother argues that the trial court erred in failing to take into account the best interests of the children while assessing whether there had been a substantial change in circumstances. According to mother, the best interests of the children always should be a relevant—indeed, the primary—consideration. Father argues that the case law clearly requires a showing of a substantial change in circumstances before a court may consider the best interests of a child.

Father is correct. As the Supreme Court explained in State ex rel Johnson v. Bail, 325 Or. 392, 396-97, 938 P.2d 209 (1997):

"this court has established a two-step inquiry to be used in determining whether a court should modify a custody arrangement:

"`A petitioner seeking a change of custody must show (1) 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, and (2) 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.' Ortiz and Ortiz, 310 Or. 644, 649, 801 P.2d 767 (1990) (footnote omitted; citations omitted).

"See also Greisamer and Greisamer, 276 Or. 397, 400, 555 P.2d 28 (1976) (same two-step analysis). In the absence of evidence of a change in circumstances since the last arrangement of custody, the court does not reach the second step in the analysis."

(Emphasis added.)

Mother argues that, even if the trial court properly ignored considerations of the best interests of the children, it still erred in concluding that she had not established the requisite change in circumstances. She argues that her improved circumstances—in particular, her ability to care for the children on a full-time basis—suffice to satisfy the first of the two steps of the modification analysis. Father argues that a change in the noncustodial parent's capability to care for the children is irrelevant. Cited in support of that proposition is Heuberger and Heuberger, 155 Or.App. 310, 963 P.2d 153 (1998). In any event, father argues, a change in a parent's material circumstances does not suffice.

We begin with father's contention that the moving party in a custody modification proceeding must show a substantial change in the custodial parent's capability to care for the child. On that question, the Supreme Court's decision in Bail is squarely to the contrary. In that case, the court said that the moving party must show "circumstances relevant to the capacity of either the moving party or the legal custodian" to take care of the children have changed. 325 Or. at 397, 938 P.2d 209 (quoting Ortiz, 310 Or. at 649, 801 P.2d 767) (emphasis in original added). See also Stevens and Stevens, 107 Or.App. 137, 139, 810 P.2d 1334, rev. den. 312 Or. 81, 816 P.2d 611 (1991) ("[t]he moving party in a custody proceeding must show that circumstances relevant to either party's capacity to care for the children have substantially changed").

Heuberger is not to the contrary. In that case, the mother initially was awarded custody of the parties' child. The father moved for modification of custody, listing as the grounds the mother's employment instability, her interference with the father's parenting time, and her smoking in the presence of the child. The trial court changed custody from the mother to the father, and the mother appealed. We characterized the dispositive issue as whether the father had proved "that the changed condition relates to mother's capacity to properly care for the child." 155 Or.App. at 313, 963 P.2d 153. In light of the parties' arguments, that made sense; only a change in the mother's circumstances was at issue in that case. We did not hold—nor could we, without running afoul of Bail—that only a change in the custodial parent's capacity to care for the child is relevant.

We turn to whether mother in fact demonstrated the requisite substantial change in either party's "capacity * * * to take care of the child[ren] properly." Ortiz, ...