Marriage of Birge, Matter of

• Decision Date: 30 May 1978
• Citation: 34 Or.App. 581,579 P.2d 297
• Parties: In the Matter of the MARRIAGE OF Joan Mary BIRGE, Respondent, and Laurence E. Birge, Jr., Appellant.
• Court: Oregon Court of Appeals

Page 297

579 P.2d 297

34 Or.App. 581

In the Matter of the MARRIAGE OF Joan Mary BIRGE, Respondent and Laurence E. Birge, Jr., Appellant.

Court of Appeals of Oregon.

Submitted on Record and Briefs March 22, 1978.

Decided May 30, 1978.

Stephen M. Bloom and Joyce, Harding & Bloom, Corvallis, filed the brief for appellant.

Todd G. Brown and McClain & Brown, Corvallis, filed the brief for respondent.

Before SCHWAB, C. J., and RICHARDSON and JOSEPH, JJ.

RICHARDSON, Judge.

Father appeals an order modifying a decree of dissolution by changing custody of the parties' minor child from father to mother. Father asserts that mother has failed to establish a change of circumstances justifying a change in custody.

The child, a girl, was four years old at the time of the most recent hearing on the motion for change of custody. In April, 1974, a decree of dissolution was granted the parties and custody of the child was granted to the mother. In July, 1974, mother voluntarily gave physical custody of the child to the father. In January, 1976, mother, by motion, sought to have physical custody of the child returned to her in compliance with the original decree. In response to that motion the court, in March, 1976, ordered the child placed in the temporary custody of the father for a one-year period. The order provided

" * * * that the hearing of March 18, 1976 is continued for a period of one year, and both parties have a duty to bring to the Court's attention the necessity to schedule in March of 1977 a hearing to continue and complete the Court's consideration and disposition of the motions of the parties."

The record does not disclose if any further evidence was presented by either party. In any event the court, in July 1976, vacated the temporary custody order and modified the decree to award custody of the child to the father. The order stated in part: ¹

" * * * The father has provided a good home for the child since the mother gave him physical custody. Although the mother has made a great improvement in her emotional and living situation in the months immediately prior to the hearing, this has not outweighed the need for a continuing of an adequate and proper living situation the child has enjoyed with the father."

The order specified the times mother would exercise her rights of visitation.

In July, 1977, the court, on motion of the mother, modified the decree by awarding her custody of the child. It is this modification which is the subject of appeal.

Mother does not claim that father is failing to provide adequately for the physical needs of the child. Her principal contention is that father's conduct toward her in the presence of the child creates a detrimental environment requiring a change of custody.

The relationship between the parents is quite hostile. After father was given custody of the child in March 1976, mother experienced difficulty in exercising her visitation rights. She was subjected to verbal abuse and harassment in front of the child whenever she would begin and end her visitations. Mother kept a diary detailing the incidents surrounding their confrontations; the diary was received in evidence. She also introduced testimony of persons who had accompanied her when she went to father's home to pick up or return the child. We decline to recite the details of their several confrontations or what the father told the child about her mother. Suffice it to say there was substantial, believable evidence that father has adopted a course of conduct designed to alienate the child from her mother.

Father, while conceding he has treated the mother poorly in the presence of the child, contends this is not a material change of circumstances since the decree was entered which would justify a change in custody. He argues that the wife has failed to show the circumstances which existed at the time of the decree and thus cannot establish if these circumstances have changed. The last previous hearing in which the court heard evidence was in March, 1976, when temporary custody was given to the father. The evidence presented in the hearing at bar, related to what had occurred between the parties following that order. The change of circumstances rule...