In re Slaughter

• Decision Date: 05 July 2018
• Docket Number: A162109
• Citation: 425 P.3d 770,292 Or.App. 687
• Parties: In the MATTER OF Shayne SLAUGHTER, Petitioner-Appellant, and Grace Harris, nka Grace M. Wright, Respondent-Respondent.
• Court: Oregon Court of Appeals

292 Or.App. 687

425 P.3d 770

In the MATTER OF Shayne SLAUGHTER, Petitioner-Appellant, and Grace Harris, nka Grace M. Wright, Respondent-Respondent.

A162109

Court of Appeals of Oregon.

Argued and submitted January 31, 2018.

July 5, 2018

Michael J. Fearl, Portland, argued the cause for appellant. Also on the briefs was Schulte, Anderson, Downes, Aronson & Bittner, P.C.

Shayna M. Rogers argued the cause for respondent. Also on the brief were Tammy M. Dentinger and Garrett Hemann Robertson PC.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Father appeals from the trial court’s supplemental judgment awarding sole custody of their minor child, T, to mother and modifying parenting time provisions of a 2006 stipulated judgment. Prior to the supplemental judgment, father was T’s legal custodian, and a general parenting-time plan provided for equal parenting time. Father first assigns error to the trial court’s determination that there had been a substantial change in circumstances justifying a change of custody.¹ We conclude that the record is not legally sufficient to prove a substantial change in circumstances justifying a change of custody.

Neither party has sought de novo review. See ORS 19.415(3)(b) ; ORAP 5.40(8). Accordingly, on review of a change of custody, we are bound by the trial court’s findings of fact provided that they are supported by any evidence in the record, and we review legal conclusions for errors of law. Botofan–Miller and Miller , 288 Or. App. 674, 675, 406 P.3d 175 (2017), rev. allowed , 362 Or. 860, 418 P.3d 757 (2018). Under that standard, we review the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court’s determination, and assess whether the record contains legally sufficient evidence to support the determination that a change in circumstances has occurred. Id . at 675–76, 406 P.3d 175.

We state the facts consistently with the trial court’s express and implied findings supported by the record. Between 2006 and 2015, father lived in Hillsboro, Oregon. Father was T’s sole legal custodian. Mother and father shared equal parenting time pursuant to parenting-time provisions in the 2006 stipulated judgment. In 2015, mother learned from T that father planned to move to Gaston, Oregon, approximately 15 miles further away from mother.² Father did not consult mother about the move and did not

notify mother prior to deciding to move. The move required changing T’s school in Hillsboro to a local elementary school in Gaston. Mother expressed concern that the move would prevent her from seeing T as often as was occurring under the parenting-time agreement, and she informed father that she would challenge in court his decision to move with T.

Father moved to Gaston approximately five months later. Mother, in response, initiated litigation to modify the 2006 custody and parenting-time judgment. The trial court ultimately concluded that "Father’s move, along with the circumstances surrounding that move, including a lack of notice and communication with Mother, combine with Father’s reduced flexibility and support for Mother’s relationship with the minor child to result in a substantial change in circumstances for the purpose of modifying legal custody of the minor child." Following that conclusion, the court determined that "it is in the best interests of the minor child that Mother be awarded sole legal custody of the minor child." The court entered a supplemental judgment granting mother custody of T and modifying various parenting-time provisions in the 2006 judgment, although the court preserved a 50–50 division of parenting time.

The Supreme Court has formulated a two-step inquiry for determining whether a court can change custody:

"A parent seeking a custody change must show that (1) 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) considering the asserted change of circumstances in the context of all relevant evidence, it would be in the child’s best interest to change custody from the legal custodian to the moving party. A parent seeking a change of custody bears the burden of showing a change in circumstances.

"The inquiry into whether there has been a change in circumstances is a factual one that relates to the capability of one or both parents to properly care for the child. One way a parent can show a change in circumstances is to show a change that has injuriously affected the child. Another is to show a change in the other parent’s ability or inclination to care for the child in the best possible manner."

Boldt and Boldt , 344 Or. 1, 9, 176 P.3d 388 (2008) (internal citations omitted). Under step one of that test, a custodial parent’s move "does not automatically constitute a substantial change of circumstances for purposes of assessing a request for a change in custody." Hamilton–Waller and Waller , 202 Or. App. 498, 507, 123 P.3d 310 (2005). Instead, we must consider whether the record supports the trial court’s determination that the move would have a significant adverse effect on either parent’s "capacity to care for the child[ ]." Dillard and Dillard , 179 Or. App. 24, 31–32, 39 P.3d 230, rev. den. , 334 Or. 491, 52 P.3d 1056 (2002).

The trial court’s findings do not support its conclusion that father’s move has had a significant adverse effect on either father’s or mother’s capacity to care for T. The court relied on a number of factors to reach its decision, but those factors, either taken separately or as a whole, do not warrant a change of custody.

The trial court first reasoned that father’s failure to notify mother of his planned move supported its decision to change custody. The record reflects that mother learned of the move from T only after father definitively decided to move. Father confirmed his plans when mother approached him about the move. It is unclear when father planned to inform mother of the move had T not brought it to mother’s attention.

As a matter of public policy, it may be preferable for a custodial parent to provide ample notice to a noncustodial parent with parenting time if the former plans to change residence. But, as a matter of law, advance notice is only required if the custodial parent plans to move more than 60 miles further away from the noncustodial parent. See ORS 107.159(1) (judgment granting custody with parenting time must include a provision requiring that "neither parent may move to a residence more than 60 miles further distant from the other parent without giving the other parent reasonable notice of the change of residence"). Father had no legal obligation to inform mother of his planned move. Moreover, father’s failure to provide notice sooner than he did does not necessarily reflect adversely on his capacity to care for T and does not, on its own, provide a basis for changing custody.

The trial court also based its decision on the fact that "Father has become less supportive of the minor child’s relationship with Mother" as a result of mother’s opposition to his move. "Adequate care and supervision by the custodial parent includes the promotion of a healthy relationship between the child and the noncustodial parent." Buxton v. Storm , 236 Or. App. 578, 592, 238 P.3d 30 (2010), rev. den. , 349 Or. 654, 249 P.3d 542 (2011). In addition, "anger, hostility, and interference with a noncustodial parent’s parenting time may constitute a substantial change of circumstances for purposes of a change of custody." Garrett and Garrett , 210 Or. App. 669, 673, 152 P.3d 993 (2007). Here, there is evidence that father and mother have had a more contentious relationship, including some disputes over parenting time, since mother learned of father’s proposed move and that the current litigation may be exacerbating that tension. But the trial court did not find, and the record does not reflect, that father has behaved aggressively toward mother or deliberately attempted to undermine a healthy relationship between mother and T. Cf. Buxton , 236 Or. App. at 592–93, 238 P.3d 30 (concluding that the "escalated conflict" between the father and the mother constituted a substantial change in circumstances in part because "Child’s extreme comments and behavior—including verbal attacks on father and [father’s fiancée] and standing over [fiancée] with a baseball bat in the middle of the night—appear to reflect mother’s influence"); Garrett , 210 Or. App. at 674, 677, 152 P.3d 993 ("the escalation of father’s anger in his dealings with mother constitute[d] a substantial change of circumstances" based on the "impact on mother’s relationship with the children, and on father’s ability to be a positive role model for the children").

Outside of the effect that...