In re Marriage of Maxey
| Decision Date | 03 August 2022 |
| Docket Number | A175656 |
| Parties | In the Matter of the Marriage of Nicole Regene MAXEY, Petitioner-Appellant, and Steven Charles PITZING, Respondent-Respondent. |
| Court | Oregon Court of Appeals |
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Argued and submitted June 23, 2022.
Clackamas County Circuit Court 17DR07699; Katherine E. Weber Judge.
Craig M. Cowley argued the cause and filed the brief for appellant.
No appearance for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.
Mother appeals a supplemental judgment of marital dissolution that gave mother sole legal custody of the parties' child, M and that made certain modifications to the parenting-plan terms, but that kept parenting time and child support the same. Mother contends that the modification court erred in three regards, all with respect to the parenting plan: (1) by failing to consider the recommendations of the custody evaluator and M's attorney; (2) by failing to make adequate findings or provide an adequate explanation of its best-interest determination; and (3) by failing to modify the plan as mother requested. For the reasons explained below, we affirm.
The parties were married for five years and have one son, M, born in 2014. In August 2018, a general judgment of marital dissolution was entered. As per the parties' stipulation the judgment provided for mother and father to have joint legal custody of M, with mother designated as the primary residential parent. Father was given parenting time every other weekend (from Friday 4:00 p.m. to Sunday 4:00 p.m.), on Wednesday evenings (from 4:00 p.m. to 8:00 p.m.), and on specified holidays. Father was ordered to pay child support.
In March 2019, mother moved to modify custody, parenting time and child support. She attested in her attached declaration that, among other things, father was attempting to undermine M's relationship with mother, that father had shown contempt for the parties' parenting relationship and the parenting plan, that father had threatened mother's significant other, and that father had interfered with M's education. Mother requested sole legal custody of M. She also requested that the parenting plan be modified in M's best interest (without specifying how). And she requested that child support be modified per the Oregon Child Support Guidelines to reflect the change in parenting time. Father responded in April 2019. He conceded that it was appropriate that mother be given sole legal custody of M. However, he argued against any reduction in his parenting time. He also made his own request for five specific changes to the parenting plan, related to M's birthday, calls with mother during father's parenting time, a "right of first refusal" for parenting time, extra parenting time for father until M started kindergarten, and the timing of Wednesday parenting time.
In the summer of 2019, the court issued several orders in response to motions filed by mother. It issued an immediate-danger order that gave mother temporary sole legal custody of M, based on a "danger of emotional harm" to M, after father withdrew consent for M's counseling. It appointed Dr. Wendy Bourg as a custody evaluator. And it appointed an attorney to represent M. A year later, in July 2020, on mother's motion, the court continued the existing immediate-danger order and added a provision that father's parenting time would be limited to two hours twice a week with professional supervision at father's expense, after an incident on July 4 in which M sustained second-degree burns from a sparkler firework while in father's care. In August 2020, the court held father in contempt for not cooperating with the previously ordered custody evaluation.
The case went to trial in August 2020. The trial took place over three days. As outlined in her trial memorandum, mother requested that father be required to complete his part of the custody evaluation-including submitting to a psychological evaluation and providing documents to Bourg-and that the court then modify the parenting plan in whatever way that Bourg recommended. Mother requested that, in the meantime, father's parenting time be supervised. M's attorney also filed a trial memorandum, which generally supported mother's requests, supported one of father's requests, suggested an additional type of evaluation of father (by a dialectical behavioral therapist), and requested nearly a dozen specific modifications to the parenting plan to either reduce discord between mother and father or to address a specific concern such as the possibility that M might be on the autism spectrum. Father, who appeared pro se, did not file a trial brief.
Both parents testified at trial, as did Bourg. As relevant here, Bourg testified that she could not really make any recommendations on father's parenting time-as to either its amount or whether it should be supervised-because she had only been able to evaluate mother. Father had not provided any of the information that he was ordered to provide, or otherwise cooperated in an evaluation, so her only information about father came from mother, public records, and the like. Before making a recommendation, Bourg would want, among other things, a psychological evaluation of father and an alcohol-use evaluation of father.
In closing arguments, mother and M's attorney took positions consistent with their trial memoranda. Father's position was less focused, but, essentially, he opposed any reduction in his parenting time, opposed supervision of his parenting time, expressed willingness but a lack of funds to participate in evaluations, and did not consider it necessary to change the parenting-plan terms, except perhaps to address M's birthday and to reduce calls to the other parent during parenting time.
The court announced its ruling orally at the conclusion of trial, and later entered a supplemental judgment that reiterated its findings and conclusions. The court awarded sole legal custody of M to mother. The court commented that, "for some reason," the parties had litigated custody, rather than focusing on parenting time, despite father having conceded custody in April 2019. The court then proceeded to make findings, including finding that father had made "negative and disparaging comments" to mother, that M made similar comments to mother after returning from father's care, that father had consumed alcohol during his parenting time, and that M was accidentally injured by a firework while in father's care on July 4. As to the last point, the court gave a verbal "admonishment" regarding future firework use, but concluded that M was not in immediate danger from father, and dismissed its immediate-protection order. The court also vacated its previous contempt order against father, which had been based on father's failure to comply with the court-ordered custody evaluation. The court explained that, in hindsight, it had been "incorrect" to hold father in contempt, because father had conceded custody long before the contempt hearing (which the court apparently had not realized at the time of the hearing[1]), such that a custody evaluation was "not necessary."
As for parenting time, the court determined that it was "in [M]'s best interest that the parenting plan stipulated to by the parties in the General Judgment remain unchanged." (Context suggests that the court was referring to the parenting-time aspect of the plan.) And, because there was "no change in the allocation of overnights between the parties," the court declined to modify child support. The court did make certain modifications to the parenting-plan terms, however, which mostly tracked changes requested by M's attorney, as well as addressing some issues raised by mother, father, or Bourg. Specifically, the court ordered that neither parent disparage the other in M's presence, that neither parent consume alcohol during parenting time, that both parents attend a specific parenting class, that both parents actively support and engage in M's counseling, that all non-emergency parental communications occur through My Family Wizard, that no "right of first refusal" exist, that Skype calls to the other parent not be scheduled during parenting time except at M's request, and that mother and father have parenting time on M's birthday in alternating years. The court also "strongly encouraged" the parties to have M medically evaluated for autism.
Finally, the court emphasized that the parties needed to move past their contentious relationship, immediately begin "discussing the other parent in a positive, loving, and caring way in front of [M]," and put M's best interests at the forefront, or else parenting time could be substantially limited or even cut off completely in the future:
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