Marriage of McManus, Matter of

• Decision Date: 07 August 1985
• Citation: 713 P.2d 664,77 Or.App. 460
• Parties: In the Matter of the MARRIAGE OF Cheryl McMANUS, Appellant, and T.J. McManus, Respondent. 150,438; CA A36142. . On Appellant's Petition for Reconsideration
• Court: Oregon Court of Appeals

Page 664

713 P.2d 664

77 Or.App. 460

In the Matter of the MARRIAGE OF Cheryl McMANUS, Appellant and T.J. McManus, Respondent.

150,438; CA A36142.

Court of Appeals of Oregon.

On Appellant's Petition for Reconsideration Aug. 7, 1985.

Motion for Stay Denied July 3, 1985.

Decided Jan. 29, 1986.

Stephen A. Lipton and Craig McMillin, Salem, for the petition.

No appearance contra.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

VAN HOOMISSEN, Judge.

In this child custody case, mother moved in this court for an order staying a dissolution decree granting custody of the parties' child to father. The issue is whether we have jurisdiction over her motion.

Mother was granted temporary custody of the child during the dissolution proceeding. The trial court awarded permanent legal custody to father. Mother then moved that court to stay that portion of the decree, pending an appeal of the custody determination. The court denied her motion, as did this court subsequently. We now consider the matter on a petition for review, which we treat as a petition for reconsideration. ORAP 10.10.

Mother relies on Niedert and Niedert, 28 Or.App. 309, 559 P.2d 515, rev. den. (1977), to support her position that this court may stay a custody award pending an appeal. In that case we said:

"The appeal process in custody cases will by the very awkwardness of its nature cause similar practical problems in future cases. Such problems should be avoided if possible. Where a change of custody is ordered and the question is close or presents no imminent danger to the child's welfare, a stay should be granted to freeze the situation. In that way, the entitlement of a parent to de novo appellate review can be preserved without unnecessary emotional cost to the child. A motion for a stay should first be made to the trial court which, having seen and heard the witnesses, is in the best position to decide upon the wisdom of a stay. If a stay is denied, it would be well if the trial court explains its reasons for the denial so that if a subsequent application is made to this court for a stay, we may give all due weight to the trial court determination." 28 Or.App. at 317, 559 P.2d 515.

Several things may be said about that language. First, it is the purest of dictum, for a stay of an order changing custody was not in issue in Niedert. Second, the only authority cited is Von Weidlein/N.W. Bottling v. OLCC, 16 Or.App. 81, 514 P.2d 560, 515 P.2d 936, 517 P.2d 295 (1973), rev. den. (1974), which depended upon a provision of the Administrative Procedures Act, former ORS 183.480(3) (now ORS 183.482(3)(a)). Third, it completely ignored the then existing version of ORS 107.105(4), which now reads:

"If an appeal is taken from a decree of * * * dissolution of marriage * * * the court making such decree may provide in a separate order for the * * * temporary custody and visitation [of the parties' children]. No appeal lies from any such temporary order. * * * " (Emphasis supplied.)

The statement in Niedert is generally supported by Blair v. Blair, 199 Or. 273, 247 P.2d 883, 260 P.2d 960 (1953), which held that an appellate court has inherent power to grant a stay in a child custody case in order to maintain the status quo pending appeal. 199 Or. at 287, 247 P.2d 883. ¹ The court reasoned that, without the authority to stay child custody determinations, incalculable harm might result to children left in improper hands for the duration of an appeal. Be that as it may, Blair arose under...