Marriage of Heuberger, Matter of

• Decision Date: 05 August 1998
• Docket Number: C-34286
• Citation: 963 P.2d 153,155 Or.App. 310
• Parties: In the Matter of the MARRIAGE OF Jeff Arnold HEUBERGER, Respondent, and Meri Heuberger, Appellant. 93; CA A97731.
• Court: Oregon Court of Appeals

Page 153

963 P.2d 153

155 Or.App. 310

In the Matter of the MARRIAGE OF Jeff Arnold HEUBERGER, Respondent and Meri Heuberger, Appellant.

93C-34286; CA A97731.

Court of Appeals of Oregon.

Argued and Submitted Feb. 5, 1998.

Decided Aug. 5, 1998.

Susan E. Watts, Portland, argued the cause for appellant. With her on the briefs were Peter Bunch and Kennedy, King & Zimmer LLP.

Gordon L. Dick, Salem, argued the cause for respondent. With him on the brief was Wheeler & Dick.

Before LANDAU, P.J., DEITS, C.J., and RIGGS, J. ^*

DEITS, Chief Judge.

Mother appeals from a judgment of modification changing custody of the parties' child from her to father, and ordering mother to pay child support. Mother assigns error to the trial court's determination that mother's interference with father's parenting time ¹ constituted a substantial change of circumstances justifying a change of custody. On de novo review, ORS 19.415(3), we reverse.

The dissolution judgment was entered in June 1995. At that time, father was 37 years of age, mother was 31 and their child was 2 years old. Mother was awarded custody of child, subject to father's parenting time, which was to be consistent with the parenting time allowed in Marion County Court Rule 8.075, unless the parties agreed otherwise. Generally, the county's rule provides for parenting time on alternate weekends and alternate Wednesdays, in addition to holiday and summer parenting time. At the time that the dissolution judgment was entered, the trial court expressed concern about the parties' ability to manage custody and parenting time:

"The Court, having reviewed the custody evaluation by Lynda Bridges, acknowledges that each of the parties have [has] demonstrated an ability to care for the child and further caution the parties that interference with visitations or a geographical move that would potentially interfere with visitations would be considered by the Court in any custody proceedings."

Father filed his motion to modify custody in March 1996, just nine months after entry of the judgment awarding custody to mother. In support of his request for a change of custody, father argued that there had been a change of circumstances since the time of the original award of custody: Father's difficulties in exercising his right to parenting time, mother's hostile attitude towards him, mother's employment and residential instability and child's health problems. The trial court held hearings on October 16 and on November 13, 1996. It awarded father temporary custody at the November 13 hearing, and scheduled another hearing for December 4.

At the December 4 hearing, the trial court granted father's motion to modify custody. The court did not explicitly find that a change of circumstances had occurred. It explained its decision as follows:

"I would have to say that I'm very troubled by the visitation problems that have occurred in this case. Both before, but more significantly after the decree. It's obvious from the custody study, and from my comments from the bench at the time of the decree, that that was a concern of the custody evaluator and it was a concern of mine if mom got custody. Those concerns have turned out to be well-founded and the evidence is that there have been significant visitation problems throughout this case. It's my conclusion those negatively impact the child, that it is contrary to the best interest of the child to continue a custodial relationship that will force him to continue to deal with those kinds of constant visitation problems."

On appeal, mother assigns error to the trial court's granting of the motion for modification. Mother contends that the circumstances on which father relies do not constitute a change of circumstances sufficient to justify modification and that modification is not in child's best interests.

As the noncustodial parent, father has the burden to show that there has been a substantial change of circumstances since the time of the original award of custody. State ex rel. Johnson v. Bail, 325 Or. 392, 397, 938 P.2d 209 (1997); Teel-King v. King, 149 Or.App. 426, 429, 944 P.2d 323 (1997), rev. den. 327 Or. 82 (1998). It is not enough to show that something has changed. Id. Father must prove that the changed condition relates to mother's capacity to properly care for the child. Bail, 325 Or. at 397, 938 P.2d 209. It is only if the moving party demonstrates a substantial change of circumstances that the court engages in the second step of the analysis--whether the modification is in the child's best interests. Id.

The requirement that a court find a substantial change of circumstances since the last custody determination before it reexamines a child's best interests is not a technical one. This requirement carries out the important objective of "avoid[ing] repeated litigation over custody and to provide a stable environment for children." Bail, 325 Or. at 398, 938 P.2d 209; Ortiz and Ortiz, 310 Or. 644, 649, 801 P.2d 767 (1990). Consistent with that purpose, when a motion for modification of custody is made within a short time after the last custody decision, "the asserted change of circumstances and detriment to the child must be more closely scrutinized by the court." Atkinson and Atkinson, 38 Or.App. 375, 379, 590 P.2d 279, rev. den. 286 Or. 1 (1979). ²

Accordingly, here, we first consider whether father met his burden to show that a substantial change of circumstances related to mother's ability to care for child has occurred since the June 1995 award of custody to mother. Although the trial court did not make an explicit finding that a change of circumstances had occurred, the court's focus in its discussion of why the change of custody was warranted was on the problems that father had experienced in attempting to exercise his parenting time with child. Consequently, we will begin by addressing the circumstances related to father's exercise of his parenting time.

At the time of the dissolution, mother was living in Ontario, Oregon. Father obtained employment in Idaho to be near child. Father worked for a paving company and worked six days a week from May to November. Because of that, he could not exercise mid-week parenting time, but he did have child with him on alternate weekends, and mother gave him an extra weekend each month. The first problem that father experienced in exercising his parenting time was on September 9, 1995. Father had picked up child on Friday evening and was to return him on Sunday. However, mother showed up at father's house on Saturday and told him that she intended to move to Redmond that night. Mother left with child but did not move, apparently because father objected to the move.

At father's next regularly scheduled parenting time on September 23, a conflict again occurred between the parties. Father testified that he had advised mother that he needed her to pick up child on Saturday evening because he had to work. She apparently agreed. However, when father came to pick up child on Saturday, mother refused to allow child to leave. The parties had a heated verbal exchange in front of child, which ended in father grabbing mother's arm and twisting it. Mother called the police and father was charged with assault, menacing, harassment and reckless endangerment. He eventually pleaded guilty to harassment and the other charges were dismissed. At his next scheduled parenting time with child, father picked him up without incident. The following visit, father was arrested on the charges from the parties' earlier incident and he was not able to visit with child through November 13, due to a restraining order. Father also was not given parenting time scheduled for the weekend of November 24, because child had chicken pox, and the weekend of December 1, when mother moved to Coos Bay. Since that time, there has been tension between the parties at times when child has been picked up, occasionally resulting in verbal hostility by both parties. In one instance, mother threw a suitcase toward father. Nonetheless, father has been able to fully exercise his right to parenting time since mid-December 1995.

We have required that interference with parenting time must be substantial to justify a change of custody on that basis. In Hansen and Hansen, 48 Or.App. 193, 202, 616 P.2d 567 (1980), we refused to find a change of circumstances after mother had impeded father's visitation for two years, because it was "a change which punishes the children too much and the mother not enough." See also Southworth and Southworth, 113...