Kirkpatrick v. Kirkpatrick

• Decision Date: 07 March 2012
• Docket Number: A147038.,070002DR
• Citation: 273 P.3d 361,248 Or.App. 539
• Parties: In the Matter of the MARRIAGE OF Annette M. KIRKPATRICK, fka Annette M. Greiner, nka Annette M. Greiner, Petitioner–Appellant,andDavid S. KIRKPATRICK, Respondent–Respondent.
• Court: Oregon Court of Appeals

248 Or.App. 539
273 P.3d 361

In the Matter of the MARRIAGE OF Annette M. KIRKPATRICK, fka Annette M. Greiner, nka Annette M. Greiner, Petitioner–Appellant,andDavid S. KIRKPATRICK, Respondent–Respondent.

070002DR

A147038.

Court of Appeals of Oregon.

Argued and Submitted Nov. 3, 2011.Decided March 7, 2012.

[273 P.3d 362]

Beth A. Allen, Portland, argued the cause and filed the briefs for appellant.

Margaret H. Leek Leiberan, Beaverton, argued the cause and filed the brief for respondent.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

HADLOCK, J.

[248 Or.App. 541] Mother appeals a supplemental judgment that changed custody of the parties' three sons from mother to father. Mother first argues that father failed to prove a change in circumstances that was substantial enough to warrant a change in custody. In the alternative, she argues that the trial court erred in concluding that a change of custody was in the children's best interests. As explained below, we conclude, consistent with the trial court's ultimate ruling, that (1) the evidence was legally sufficient to establish a substantial change in circumstances related to mother's ability to properly care for the children, and (2) the trial court did not err in determining that a change in custody was in the children's best interests. Accordingly, we affirm.

We state the facts consistently with the trial court's express and implied findings, supplemented with uncontroverted information from the record. ¹ Mother and father married in 1998 and had three sons: W, born in 1998; Z, born in 2000; and T, born in 2004. Mother and father separated in the spring of 2006 and a dissolution judgment was entered in 2008.

After the 2006 separation, mother and the children left the marital home in Wasco, Oregon, to live in Sherwood, Oregon. Father, meanwhile, moved from Wasco to nearby Rufus, which is approximately 160 miles from Sherwood. The parents informally agreed to meet every other weekend in Cascade Locks, roughly halfway between the parents' homes, so father could pick up and spend time with the children.

[248 Or.App. 542] Mother periodically denied or threatened to deny father that agreed-upon parenting time. On one occasion, mother informed father by email that she was going to deny his parenting time, but provided no explanation; on other occasions, mother threatened by email to cancel his visits with the children. Mother denied father a scheduled visit over Thanksgiving weekend in 2007, and once denied father a make-up weekend after she had kept the children because they were ill.

[273 P.3d 363]

When exchanges of the children in Cascade Locks did occur, communication between the parents was either nonexistent or highly confrontational. Once, the parents had a “heated disagreement” over money in a Safeway parking lot while the children waited in the car; mother then left with the children so father could not see them that weekend. In February 2008, soon after the parents had filed for dissolution, the trial court issued an order specifying that father was to have parenting time every other weekend, but mother allegedly violated that order at least twice.

The trial court first ruled on custody when it entered the September 2008 dissolution judgment, following a three-day trial. Although father had sought custody of the children, arguing that mother had demonstrated an unwillingness to foster his relationship with them, the court awarded custody to mother. The court found both mother and father to be fit parents, but expressed concern that neither parent was very good at facilitating or encouraging a close and continuing relationship between the other parent and the children. Ultimately, the court granted mother custody based primarily on the undisputed fact that she had been the children's primary caretaker throughout their lives.

Conflicts over parenting time persisted and, in July 2009, father filed his first of several motions to find mother in contempt of the custody agreement. Father alleged that mother had caused him to miss a weekend visit in January 2009 and had denied him visitation over Z's birthday weekend that March. In addition, father alleged, mother had threatened to deny him 60 days of uninterrupted summer parenting time—to which he was entitled under the parenting plan-by claiming that father had failed to timely inform her of his proposed summer schedule, despite evidence to the contrary. Upon hearing the motion, the court decided to not [248 Or.App. 543] find mother in contempt, but acknowledged that “it's pretty clear that [father] missed some visits that he shouldn't have, and it's a little hard for me to put a number on that.” The court ultimately awarded father three days of make-up parenting time, primarily for the missed January and March visits. Mother subsequently admitted that she never allowed father to exercise those make-up parenting days.

Less than two months later, mother moved to reduce father's summer parenting time from 60 days to three weeks, to coincide with when father could take vacation time from work, and she requested a provision that would have required father to allow the boys to take part in “special events” that might come up during his parenting time.² Father counterclaimed that mother had willfully violated the dissolution judgment three times since the hearing in July 2009. Hearings on those claims occurred on multiple dates between February and August of 2010. During that time, father filed two additional motions to find mother in contempt and a motion to change custody, all based on denials of parenting time. All motions were consolidated into the original modification proceedings, and it is the judgment that resulted from those hearings that mother now appeals.

In relating the evidence presented at the hearings on those various motions, we focus on the events that the trial court found significant to its conclusion that a change in circumstances warranted a change in custody. The first of those events occurred at the end of the summer of 2009. According to the parents' parenting-time schedule, mother was to have the children for two weeks in early August and then return them to father on August 23, for father to exercise the last 14 days of his summer parenting time. Four days before mother was scheduled to return the children to father, however, T suffered a broken arm that required surgery. Mother testified that she repeatedly attempted to call father on the night [248 Or.App. 544] of T's injury. Father testified, however, that he did not receive a voicemail about T's injury until two

[273 P.3d 364]

days later; he also said that he first learned the extent of the injury from an email that mother sent the day before the children were to have been returned to father's care. Mother also mentioned in that email, for the first time, that W had been seeing a sports medicine/physical therapist for a twisted knee, and that, because of the boys' medical needs, mother would keep the children for the rest of the summer. Thus, father was deprived of any opportunity to take part in the medical care of T or W, and he ultimately missed 14 days of scheduled summer parenting time.

Over Christmas of 2009, mother again denied father his regularly scheduled parenting time, this time by filing a false report of sexual abuse with the Department of Human Services (DHS). Ten months earlier, mother had called the DHS hotline to report that the boys had made comments suggesting they might have been sexually abused by the nine-year-old son of father's then fiancée. DHS did not assign a caseworker or otherwise investigate mother's allegations at that time. Regardless, mother emailed father, accusing the nine-year-old of “humping [the children] and kissing them” and stating that if that behavior did not stop, the children would not be allowed to visit father when his fiancée's son was present. Father replied that mother's “accusations of sexual behavior [were] ludicrous,” and mother apparently did not pursue her allegations during the next ten months.

In mid-December 2009, however, mother again sent father an email alleging that his fiancée's son had sexually abused the children and, when father did not respond, mother again contacted DHS. Soon afterward, Julie Nehl, the DHS worker assigned to investigate mother's allegations, interviewed W, Z, and T. DHS closed the case as unfounded based on that interview and, on December 24th, Nehl left a voicemail message for mother to that effect. Despite Nehl's voicemail, and although Nehl never had advised mother that it would be unsafe for the children to be in father's care, mother sent father an email later on December 24th stating that “per an open investigation with DHS Child Welfare, and the safety and welfare of the boys, they will be staying home [for Christmas]. They have the right to be safe from any [248 Or.App. 545] abuse.” Mother thereby denied father his Christmas visitation with the children; father filed his motion to modify custody soon after that incident.

Mother continued to hinder father's exercise of parenting time after Christmas. In March 2010, mother denied father—for the second year in a row—the parenting time that he had scheduled to celebrate Z's birthday. Soon after, mother repeatedly threatened to take the boys “[f]ar enough away where you'll never see the boys again,” unless father dropped all legal proceedings and agreed to her new proposed parenting plan, which would have significantly limited father's parenting time. Mother also said that if father did not agree to her proposed parenting plan, she would tell his employer that he had stolen tools-an accusation that would have been false. Mother did not follow through on those threats.

After being presented with the evidence outlined above, the court ruled, in June 2010, that mother's interference with father's parenting time since the custody decree constituted a substantial change in...