In re Stancliff

Decision Date15 June 2022
Docket NumberA174558
Citation320 Or.App. 369,513 P.3d 20
Parties In the MATTER OF the MARRIAGE OF Jarod STANCLIFF, Petitioner-Appellant, and Heather Stancliff, Respondent-Respondent.
CourtOregon Court of Appeals

Mark T. McLeod and McLeod & McLeod Attorneys at Law filed the brief for appellant.

No appearance for respondent.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.

JAMES, P. J.

In this domestic relations case, the court entered a general judgment of dissolution and parenting time awarding father sole legal custody. On appeal from that judgment, father contends that the trial court abused its discretion in denying his request to relocate to Illinois and rejecting a parenting plan that was based on father relocating. Mother has not filed an appearance on appeal. For the reasons that follow, we conclude that the trial court erred in denying father's request to relocate, and we remand for the trial court to reconsider that issue.

I. STANDARD OF REVIEW

Father requests that we exercise our discretion to review this case de novo . ORAP 5.40(8). Father argues that de novo review is warranted because the trial court's findings do not comport with the uncontroverted evidence about how the children are better served by a move to Illinois or how the move would promote the children's long-term stability and needed family support. Morgan and Morgan , 269 Or. App. 156, 159, 344 P.3d 81 (2015) ("[A] lower court's reliance on a crucial finding that ‘does not comport with the evidence in the record’ can be a reason to exercise our discretion to review de novo ."). Father argues that our exercise of de novo review is important to the ruling of the trial court because a proper weighing of the evidence justifies reversing or modifying the trial court's ruling.

We decline to exercise our discretion to review the court's factual findings de novo . Instead, we defer to the court's implicit and explicit factual findings if they are supported by evidence in the record. (However, as discussed later, we agree with father that some of the court's factual findings were not supported by evidence in the record.)

In denying father's request to relocate to Illinois, the court was required to consider only the "best interests of the child" standard and the factors under ORS 107.137(1), as directed by our case law. Cooksey and Cooksey , 203 Or. App. 157, 165-66, 125 P.3d 57 (2005). Father argues both that the trial court erred in its application of that legal standard by not taking into account certain required factors in denying the request for relocation and that, even if the court correctly applied the standard, it abused its discretion in determining that relocation did not serve the children's best interest. Those challenges implicate different standards of review.

First, whether the trial court applied the correct legal standard in making the challenged "best interests" determination presents a question of law that we review for legal error. Second, if we determine that the trial court applied the correct legal standard, we review the court's "best interests" determination for abuse of discretion. Sjomeling v. Lasser , 251 Or. App. 172, 187-88, 285 P.3d 1116, rev. den. , 353 Or. 103, 295 P.3d 50 (2012). Under that standard, we must uphold the trial court's decision unless it exercises its discretion "in a manner that is unjustified by, and clearly against, reason and evidence." Forsi v. Hildahl , 194 Or. App. 648, 652, 96 P.3d 852 (2004), rev. den. , 338 Or. 124, 108 P.3d 1173 (2005).

II. FACTUAL AND PROCEDURAL BACKGROUND

We focus on the evidence and arguments related to the issue of relocation and the trial court's findings that led to its conclusion to deny father's request to relocate to Illinois. Much of the evidence was undisputed; however, to the extent there were conflicts in the parties’ versions of the facts, we recite the facts consistently with the court's ruling or otherwise note the factual dispute.

Father and mother met online through several mutual friends in 2010. At that time, father was living with his parents in Illinois, and mother was living in Oregon. The following summer, father helped mother move to Illinois, found her a job, and got her set up with an apartment. After that, they began a relationship and eventually married in 2012.

In September 2013, the parents moved from Illinois to Corvallis, Oregon, with the expectation that father's transfer would open up an opportunity within his new company within six months of the transfer. That opportunity did not materialize, and the parents’ financial troubles required them to move in with mother's parents, who lived in Pendleton. During that time, the parents’ first minor child, K, was born in July 2014. Parents agreed that mother would be a stay-at-home mom. There is no dispute that mother was very attentive and caring to K in his infancy, and father had no concerns regarding her parenting.

In 2015, seeking better job opportunities, the family moved to Albany, Oregon, where father began working for a sporting goods company. In September 2016, the parents’ second child, V, was born. Then, in September 2017, father was offered a promotion, but it required the family to move to Klamath Falls. Initially, father was going to turn down the offer because he was concerned about moving mother away from her family who lived nearby. Ultimately, the parents agreed that the increase in financial support was in the families’ best interest despite knowing it would be a more stressful job for father.

After moving to Klamath Falls, mother's mental and physical health declined, and the parents were struggling in their marriage. Father took three months of medical leave to focus on saving the marriage and assumed more parenting responsibilities while mother was struggling with her health. In July 2018, a week before father's medical leave expired, mother decided to move out and sought counseling and therapy services while living with her parents. Father later learned that, before moving out, mother had attempted to kill herself by driving recklessly. The children were not in the car at the time, but father believed that mother's behavior might nevertheless present a risk of harm to the children.

In March 2019, father filed a simultaneous petition for dissolution of marriage and a motion for emergency custody based upon an immediate danger to the children. By this time, the children had been residing with father full time since July 2018. During a hearing on March 19, father expressed concerns that mother presented a danger to the children based upon multiple attempts to take her own life and negligent acts presenting a risk to the children when they were in her care. Mother appeared pro se and admitted to a recent suicide attempt by overdosing on pills but stated that she was nowhere near the children when it happened. The trial court granted the immediate danger request and awarded no parenting time to mother until further order.

After mother retained counsel, father and mother agreed in April 2019 to the court's entry of a stipulated temporary parenting order that required mother's parenting time to be supervised by father or by an adult in mother's family. Mother was given a minimum of four days of parenting time per week including from 8:00 a.m. to 7:00 p.m. on Saturdays and Sundays and then Tuesdays and Thursdays after father returned from work. Mother saw the children regularly.

In September 2019, father and the children moved to their own home in Stayton and, around the same time, mother moved 20 miles away to Mill City, where she found a job at a convenience store. In October 2019, mother was in a car accident and her license was suspended because she was driving without insurance. Thereafter, mother's parenting time dropped significantly, partially due to her inability to drive and her own family's decreasing willingness to provide supervision and transportation related to her parenting time. When mother was not able to get supervision, father refused to bring the children to her mother's house, five minutes from father's home, even when mother offered gas money to father.1 According to the parenting plan, mother's parenting time could take place in father's home, but mother stated that she did not want to have parenting time with father supervising because she felt uncomfortable.

The custody trial was held in February 2020. The issues at the hearing were custody, parenting time, and child support, and one of the key questions was whether father should be allowed to relocate to Illinois if he were to be granted custody. In requesting to relocate, father argued that he was from Illinois and reliant on his extended family in Illinois for his and the children's living expenses. Between his parents and his brother, he received $775 a month in assistance. At the time of trial, father and the children were in an unstable economic situation. It was undisputed that mother's family had pulled back from providing childcare—from five days to three—and then finally removed all support. And, father testified, in the four months preceding trial, mother had had only exercised seven percent of her parenting time—an estimated 32 hours out of 445 hours available according to the temporary stipulated parenting plan entered in April 2019.

Father testified that, if he were to move back to Illinois, his parents were willing to offer rent that would be half the cost of his current rental and he would be able to halve his utilities costs. He also pointed to evidence that his mother, brother, and sister-in-law all worked part-time and were willing to help with childcare, possibly eliminating his childcare costs. Further, father's parents were willing to direct the $400 per month that they were sending to father toward tuition for K for a private school affiliated with the church where father's parents worked.

Father explained that he wanted to move because he could rely...

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3 cases
  • In re Marriage of Stancliff
    • United States
    • Oregon Court of Appeals
    • June 15, 2022
    ...320 Or.App. 369 In the Matter of the Marriage of Jarod STANCLIFF, Petitioner-Appellant, and Heather STANCLIFF, Respondent-Respondent. A174558Court of Appeals of OregonJune 15, Submitted January 12, 2022 Marion County Circuit Court 19DR04704; A174558 Sean E. Armstrong, Judge. Mark T. McLeod ......
  • In re Kaminski
    • United States
    • Oregon Court of Appeals
    • December 7, 2022
    ... ...          Affirmed ... --------- ... [1] In contrast, if the question of ... relocation of a parent arises outside the context of a ... modification, the court is required to consider only the best ... interest of the child and the factors set forth in ORS ... 107.137(1). Stancliff ... ...
  • In re Marriage of Quigley
    • United States
    • Oregon Court of Appeals
    • July 6, 2023
    ... ... between the other parent and the child." ... ORS 107.137(1). "We have repeatedly noted that no one ... factor under ORS 107.137(1) prevails," and "a court ... must assess all the required statutory ... considerations in determining what serves the children's ... best interests." Stancliff and Stancliff, 320 ... Or.App. 369, 379, 513 P.3d 20 (2022) (emphasis added) ...          Here, ... in its written decision as to parenting time, the trial court ... focused on charges against husband in a separate case and the ... effect that husband's personal disputes with wife ... ...

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