MARRIAGE OF O'DONNELL-LAMONT

• Decision Date: 10 June 2004
• Citation: 91 P.3d 721,337 Or. 86
• Parties: In the Matter of the MARRIAGE OF Rayne Elizabeth O'DONNELL-LAMONT (deceased), Petitioner, and Michael David Lamont, Jr., Respondent on Review, and Christine and Patrick O'Donnell, Petitioners on Review, and Darrell Miller, Intervenor-Respondent.
• Court: Oregon Supreme Court

91 P.3d 721

337 Or. 86

In the Matter of the MARRIAGE OF Rayne Elizabeth O'DONNELL-LAMONT (deceased), Petitioner, and

Michael David Lamont, Jr., Respondent on Review, and

Christine and Patrick O'Donnell, Petitioners on Review, and

Darrell Miller, Intervenor-Respondent.

(C98 1284 DR; CA A112960; SC S50551).

Supreme Court of Oregon.

Argued and Submitted January 12, 2004.

Decided June 10, 2004.

Eli D. Stutsman, Portland, argued the cause and filed the brief for petitioners on review. With him on the brief were David L. Heifetz, Jacqueline Koch, and Koch & Deering.

Philip F. Schuster II, of Dierking & Schuster, Portland, argued the cause and filed the brief for respondent on review.

F.G. (Jamie) Troy II, of Law Office of Ronnee S. Kliewer, Portland, filed the brief for amicus curiae Basic Rights Oregon, Inc. With him on the brief was Shaun Wardinsky, of Yates, Matthews & Marasch, P.C., Portland.

Darcia Krause, Portland, filed the brief for herself as amicus curiae.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.¹

BALMER, J.

We allowed review of this child custody proceeding to consider the appropriate application of changes that the legislature made to the third-party custody statute in 2001, following the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The trial court awarded custody of the two children in this proceeding to maternal grandparents (grandparents) rather than to father, and the Court of Appeals reversed. O'Donnell-Lamont and Lamont, 184 Or.App. 249, 56 P.3d 929 (2002), modified and adhered to as modified by an equally divided court, 187 Or.App. 14, 67 P.3d 939 (2003). For the reasons that follow, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

I. FACTS

In reviewing a decision of the Court of Appeals that is an appeal from a suit in equity, this court may review de novo or may limit its review to questions of law. ORS 19.415(4); see State ex rel. SOSCF v. Stillman, 333 Or. 135, 138, 36 P.3d 490 (2001)

(reviewing termination of parental rights case de novo). In this case, we elect to review the record de novo, because the Court of Appeals did not address all the issues that we conclude must be considered (including certain issues that depend on factual findings), and our reversal of the decision of the Court of Appeals on dispositive issues that it did consider otherwise would require a remand to that court and the delay that necessarily would attend further proceedings.² In our de novo review of the record, we give "considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony." State ex rel. Juv. Dept. v. Geist, 310 Or. 176, 194, 796 P.2d 1193 (1990). We first review the facts leading up to this custody dispute and then supplement those facts from the record as needed in our discussion of the applicable legal standards.

We find the following facts. Father and mother were married in 1991 and had two children—Taryn, born in 1992, and Seaira, born in 1996. Father and mother lived with grandparents for several months after Taryn was born, then moved to the Detroit Lake area near the paternal grandfather. In 1994, mother and Taryn, and later father, moved to Tualatin and then to Hillsboro. In both locations, the family lived within walking distance of grandparents, and the children had day-to-day contact with grandparents during much of that time. The family chose to live near grandparents in part because mother suffered from a congenital heart defect, which later caused her death, and grandparents provided childcare as well as emotional and, at times, financial support. Mother was the primary caregiver for the children, in part because father worked as a long-haul truck driver, which required him to be away from home several nights a week. At other times during the marriage, father worked as a contractor and as a construction worker at job sites that required him to be away from home.

Parents' marriage began to deteriorate in 1997, and father and mother separated and reunited on several occasions. In March 1998, mother obtained a Family Abuse Prevention Act restraining order against father, although mother apparently enforced the order only when it suited her, and both mother and father ignored the order at other times. For example, mother and father traveled together to Hawaii with the children in July 1998, despite the restraining order and the fact that, in April 1998, mother had petitioned to dissolve the marriage. The dissolution of parents' marriage became effective in September 1998. Father had moved to Eugene, however, and did not take advantage of all the parenting time provided for in the dissolution decree. Twice during father and mother's last separation, father violated the restraining order in a manner that was alarming or threatened violence to mother. On one of those occasions, father appeared at mother's residence when mother and children were there. The police subsequently arrested him, and he pled guilty to violating the restraining order.

After the dissolution, mother began a relationship with Darrell Miller. In March 1999, Miller, mother, and the children went to Disneyland. While they were there, mother died of her preexisting heart condition. Miller and the children returned to Oregon, where father and grandparents met them.

At the time of mother's death, father was working in Eugene and living in a trailer. Father acknowledged that his living situation was not appropriate for the children, and father and grandparents agreed that the children would stay with grandparents. Although father and grandparents at one point anticipated that the children might live with grandparents for as long as several years, during the summer of 1999 father reasserted his right to custody of the children, which grandparents disputed. The parties attempted unsuccessfully to mediate their dispute, and the children became the subject of a tug of war between father and grandparents. In July 1999, father refused to return children to grandparents after a visit, without telling grandparents in advance. Later that month, grandparents, while in possession of the children, sought and received a court order awarding them temporary custody. The court ordered the children returned to father, who by that time had acquired a house in Keizer. Father assured the court that he would keep the children in the Salem area. However, despite that promise, father moved to Montana with the children and his girlfriend, Laura Oliver, in September 1999, without notice to the court or grandparents. Father refused to disclose his address in Montana to grandparents and avoided grandparents' efforts to serve him with legal papers. The court found father in contempt and ordered him to return the children to Oregon, which he did. After living in Montana for about six weeks, father, Oliver, and the children moved to the Detroit Lake area, and father and Oliver later purchased a house in Lyons.

II. PROCEEDINGS BELOW

After a hearing on the merits, the trial court in July 2000 awarded permanent custody to grandparents, with substantial parenting time to father. The trial court issued a letter opinion making extensive findings of fact. The trial court relied on the testimony of the parties and numerous other witnesses, including Dr. Edward Vien, a clinical psychologist appointed by the court, who spent 27 hours interviewing family members and conducting psychological tests. The trial court found that the children are bonded to father and to grandparents and that father loves the children, has attempted to provide for them, and has the potential to be a good custodial parent. However, the court also found that father had lied repeatedly during the hearing, had an unstable job and residence history, had used illegal substances during the marriage, had abused mother, and had difficulty controlling his anger. Although father claimed to have overcome those problems, the trial court found that he was "unconvincing." Based on his testimony in the trial court, the trial court found that father was "dishonest" and that he lacked credibility. For those and other reasons, the trial court determined that father had serious shortcomings and deficiencies as a parent.

In regard to grandparents, the trial court found that grandparents had provided the children with food, clothing, shelter, and other physical necessities, as well as care, education, and discipline. The court noted that grandparents had played a "closely supportive role" for many years in helping mother raise the children. The court also found that grandparents had a more constructive interest in, and attitude toward, the children than did father. However, the court also identified several negative factors regarding grandparents, including grandparents' tendency to dote on the children, their efforts to "control" father and the children, and their desire to prevent father from having the children.

The trial court began its legal analysis with ORS 109.119 (1999), which, at the time of the hearing, established the standards for the court to use in determining whether grandparents had shown "emotional ties creating a child-parent relationship" with the children.³ Having found that grandparents had proved such a relationship, the court then considered father's argument that, as the biological parent, he had a "supervening right" to custody unless he was shown to be unfit. Father had argued that he was a fit legal parent and that, under Hruby and Hruby, 304 Or. 500, 748 P.2d 57 (1987), the court should award him custody in the absence of a "compelling threat" to the present or future well-being of the children. The trial court rejected that argument, stating that this court's decision in Sleeper and Sleeper, 328...