Marriage of Meier, Matter of

• Decision Date: 22 May 1979
• Citation: 286 Or. 437,595 P.2d 474
• Parties: In the Matter of the MARRIAGE OF Gary Max MEIER, Petitioner, and Patricia Anne Meier, Respondent. TC 400-061; CA 10498; SC 25948.
• Court: Oregon Supreme Court

Page 474

595 P.2d 474

286 Or. 437

In the Matter of the MARRIAGE OF Gary Max MEIER, Petitioner,

and

Patricia Anne Meier, Respondent.

TC 400-061; CA 10498; SC 25948.

Supreme Court of Oregon.

Argued and Submitted April 4, 1979.

Decided May 22, 1979.

Constance C. Jarvis, Portland, argued the cause and filed the brief for respondent.

Before DENECKE, C. J., and HOLMAN, TONGUE, HOWELL, LENT and LINDE, JJ. ^*

TONGUE, Justice.

This case arises from a motion by a mother to modify the decree of dissolution which awarded her custody of a minor child. By that motion the mother sought permission to move with the child to Ontario, Canada. The trial court, after hearing testimony, denied that motion. The Court of Appeals reversed. 36 Or.App. 685, 585 P.2d 713 (1978). We granted review.

The basic facts in this case are not in dispute. The parties were married in 1969, and one child, Justin, was born in 1970. On February 20, 1974, the father petitioned for divorce and requested custody of Justin. At that time the father also requested and obtained from the court an order awarding temporary custody of Justin to him and prohibiting either parent from removing the child from Oregon. The mother then also petitioned for divorce and requested custody of Justin.

On November 27, 1974, a decree of dissolution was entered, incorporating and approving a property settlement agreement dated November 22, 1974, by which the parties agreed as follows:

"1. Custody and Support.

"a. The care, custody and control of the minor child of the parties, James Justine Meier, born December 8, 1970, shall be awarded to wife, subject to husband's rights of reasonable visitation as follows: Husband shall have the child every other weekend and one weekday evening during the intervening two weeks; three weeks during the summer months and reasonable sharing of the holidays.

"b. Wife shall not change her residence or that of the minor child from the greater Portland, Oregon, area without prior Order of the Court herein being first obtained upon proper prior notice to Husband."

" * * * "

On January 17, 1978, the mother filed a motion requesting permission of the court to move with Justin (then age 7) to Kingston, Ontario, Canada. In her affidavit in support of that motion, the mother recited that she had lived in Canada for twenty-four years prior to moving to the United States and her family still lived in Ontario; that she had received an offer of a job there in her profession as a nurse practitioner for a higher salary; and that "(i)n Canada I will be able to continue to provide an adequate home and good school and care" for Justin.

The father then moved the court for an order:

" * * * requiring the respondent, PATRICIA ANNE MEIER, to appear and show cause why the custody of the parties' minor child, JUSTIN MEIER, should not be changed from the respondent to the petitioner, or in the alternative, to show cause why the respondent should not be prohibited and restrained and enjoined from leaving this community with the parties' minor child or, in the alternative, to show cause why this court should not establish visitation rights for the petitioner with the parties' minor child * * *."

In support of that motion, the father stated in his affidavit that the provision in the property settlement agreement which required permission before Justin could be removed from Oregon was intended to be a safeguard of his access to Justin; that he had always exercised his visitation rights despite alleged disruptions by the mother, and that "by taking our son from Oregon and the environment he has known she (the mother) would be doing great harm" to Justin.

A hearing was held on these two motions on February 14, 1978, at which time the trial court received evidence and heard the testimony of witnesses.

The mother offered testimony that job opportunities in her field were limited in Oregon compared to Canada, and that she needed the increase in salary available in the job she had been offered because of increased expenses due to the birth in 1977 of her daughter (of whom petitioner is not the father). The mother has strong family ties in Canada and feels that the influence of her extended family would be very positive for Justin. She also testified that Justin has a reading problem and needs and is now receiving special tutoring. According to the mother, such tutoring would also be available in Canada and schools in Canada are comparable, but it would be necessary for Justin to learn French as a second language. The mother feels that this would be a positive effect of the move and would not pose difficulties for Justin in connection with his reading problem. As for visitation, should the move to Canada be allowed, the mother proposed that Justin spend an extended period of time with the father each summer plus alternate holidays, the equivalent of approximately five weeks per year. The father would be free to visit at any time, and she would be willing to accept reduced child support to pay the increased costs of visitation. Finally, it appears from the testimony that the mother and Justin have a very close and warm relationship, and she stated that she would not move to Canada by herself and leave Justin if her motion were denied.

The father offered testimony that he and Justin also have a very good and warm relationship. The father and son engage in many activities during visitation periods. Witnesses also stated that the father had a positive and calming influence on the child. The father believes that the removal of the child from his father, school and friends would be very disruptive. The father is also concerned that, due to alleged obstructions of his visitation rights in the past by the mother and her family, allowing Justin to be taken to Canada would jeopardize his future relationship with the child. The father testified, however, that he would not be seeking to change custody of the child if the mother were going to stay in the Portland area.

After receiving the evidence and hearing the testimony the trial court made the following oral finding:

" * * * (P)erhaps it's to the best interests of Mrs. Meier to be able to make this change, but * * * I see nothing in the evidence to justify a finding that it is to the best interests of this child to uproot it from its present circumstances and that the substitution of the family in Canada is the equivalent of the attention and concern and affection that the father here gives to the child."

The trial court therefore issued an order which provided that:

"1. The motion of the Respondent, PATRICIA ANNE MEIER, to be allowed to remove JUSTIN from the jurisdiction of this Court to Canada is hereby denied.

"2. The motions of the petitioner, GARY MAX MEIER, are granted insofar as the minor child of the parties, JUSTIN, shall not be taken to Canada, and if the Respondent does move to Canada, then custody of the child shall change from the Respondent to the Petitioner. As long as the Respondent remains within the jurisdiction of this Court, she shall continue to have custody of the minor child of the parties until further order of the Court."

The mother appealed to the Court of Appeals, stating the "question presented" to be as follows:

"Is a custodial parent required to live permanently in the state which awards custody or lose custody if she leaves the jurisdiction of this court?"

In response to that question Judge Tanzer, in writing for the majority, said that:

"Were we writing on a clean slate, we could logically hold that the court is authorized by ORS 107.105 to award custody to a parent; that custody includes authority to make parental decisions such as choice of residence; that there is no authority for the court to substitute its parental judgment in the form of conditions imposed upon custody; and that the court, after making an award, should get out of the litigants' lives unless continuation of the status quo would be injurious to the child and custody must be modified to avoid the injury, in which case ORS 107.135 authorizes change of custody."

The Court of Appeals then recognized, however, the holding by this court in Perley v. Perley, 220 Or. 399, 349 P.2d 663 (1960), that a motion to modify an award of custody which restricts the custodial parent's freedom to move is addressed to the court's discretion, to be exercised based upon its determination of what is in the "best interests of the child." 36 Or.App. at 689, 585 P.2d 713. Judge Tanzer then attempted to "give legal form and substance" to that discretion beyond what he characterized as the "formulary invocation of the phrase 'best interests of the child,' " saying "(t)hat rubric is not helpful." Judge Tanzer stated four factors to be considered. First, "judicial discretion should not be exercised to regulate decisions such as choice of residence which are normally parental, not judicial, decisions unless due to exceptional circumstances there is a clear danger to the child's well-being." Second, "such a discretionary condition should be imposed only where there are reasons of danger, demonstrable bad faith or impracticality which make it desirable that the situation be anticipated abstractly rather than dealt with on the facts after occurrence." Third, discretion should "rarely be exercised to impose conditions which, like this one, are not capable of practical enforcement." Fourth, "a custody order must provide for such visitation by the noncustodial parent, if any, as may be reasonable under the circumstances." 36 Or.App. at 689-90, 585 P.2d at 716.

Applying these factors, the Court of Appeals concluded that:

" * * * Choice of residence is a parental decision which the custodial parent should be able to make without judicial second-guessing, supervision or dictation unless that choice is made for ulterior reasons such as to defeat the rights of the noncustodial parent to visitation. Here, despite father's suspicion, there is no...