Marriage of Niedert, Matter of

• Decision Date: 31 January 1977
• Citation: 559 P.2d 515,28 Or.App. 309
• Parties: In the Matter of the MARRIAGE OF Ronald L. NIEDERT, Respondent, and Marilyn J. Niedert, Appellant.
• Court: Oregon Court of Appeals

Page 515

559 P.2d 515

28 Or.App. 309

In the Matter of the MARRIAGE OF Ronald L. NIEDERT, Respondent and Marilyn J. Niedert, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Nov. 19, 1976.

Decided Jan. 31, 1977.

Garth S. Ledwidge, Gresham, argued the cause and filed the brief for appellant.

C. David Hall, Portland, argued the cause for respondent. With him on the brief was Rask & Hefferin, Portland.

Before SCHWAB, C.J., and THORNTON and TANZER, JJ.

TANZER, Judge.

This is an appeal from an order changing custody of the parties' nine-year-old daughter from the mother to the father. The issue is whether there was an adequate showing of changed circumstances ¹ to justify the order. The trial court did not specify the circumstances which it deemed to be sufficiently changed to justify the modification. To have done so, would have been helpful on review. We review the record de novo, giving weight to the trial court's comments regarding credibility.

A decree dissolving the parties' marriage was entered on August 28, 1975. In accordance with the agreement of both parties, custody of the child was awarded to the mother. On April 13, 1976, seven-and-a-half months after the entry of the original decree, the husband filed a change--of-custody show cause motion.

At the time of the hearing the father was employed as a sales representative, the same position he held at the time of the original decree. His job requires him to make occasional overnight business trips. He has remarried since the decree and his new wife is willing and apparently able to devote all of her energy to the care of the child and the maintenance of a family home. Since the decree the father has moved from a small apartment into a three-bedroom home.

Prior to the change of custody motion, the child spent nearly every weekend and most of her school holidays with her father and his new wife. These visits were mostly spent taking vacation trips, visiting with the father's family and in other family-related activities. She has developed a close and affectionate relationship with both her father and her stepmother and she told the circuit court that she would prefer to live with them rather than with her mother.

The mother is employed, as she was at the time of the dissolution, as a registered nurse. Her schedule, which requires her to work from 2:30 p.m. until 11 p.m. approximately three nights per week, has not changed since the entry of the dissolution decree. She prefers this shift because of the importance she attaches to seeing her child off to school each morning, which would be impossible if she worked any other shift. When the mother works, the child is with babysitters from shortly after she arrives home from school until late at night. Following the dissolution, the child stayed with neighbors at these times. Rather than waking the child late at night, the mother frequently allowed her to stay with the neighbors overnight. Later the mother retained a succession of three women to serve as live-in babysitters. The arrangement called for one of the women to be home by 5 p.m. when the mother worked. Thus the child was left alone from 2:00 p.m. until 5 p.m. on those nights. Occasionally, the sitters were late and the child was left alone even longer. However, the child knew how to contact her mother at work and there was a neighbor nearby to whom the child knew she could go in an emergency.

Since the dissolution decree the mother has developed a relationship with a physician at the hospital where she is employed. They admit that they have occasionally been physically intimate while the child has been playing in or around the house, but deny the father's charge that the child has seen them in bed together. The physician has not stayed with the mother overnight. In an In camera interview, the child indicated that her mother and the doctor occasionally talk privately in the bedroom, but that she had never actually seen them doing so. The record gives no indication that the relationship disturbed the child in any way.

The father presented other evidence in an effort to show that the mother's care was inadequate. It was charged that the child's hygiene was poor, that her grades in school were falling, that she was poorly fed and that she was frequently left alone in the morning to prepare for school and fix her own breakfast while the mother slept. All of these charges were contradicted by evidence presented by the mother. The evidence in support of the charges was not impressive to the trial court and is not to us. Moreover, the father testified that these circumstances existed during the marriage and at the time of the dissolution. In short, the only changed circumstances established at the hearing were the father's remarriage, the mother's relationship with the doctor, and the changes in child care arrangements for evenings when the mother worked.

The change-of-circumstance rule is designed to serve two functions: to discourage repeated litigation of the same issues and, more important, to provide young children with a stable environment. Crane v. Crane, 17 Or.App. 637, 523 P.2d 596 (1974). We have long recognized the importance of a stable and secure home life and have consequently placed a high value on the stability of parental relationships. ² Therefore the rule requires a showing of some change in circumstances which makes either the benefits to be gained from a change of custody or the detriment caused by not making the change outweigh the damage done to a child who is exposed to shifting parental figures. McCutchan v. McCutchan, 5 Or.App. 96, 483 P.2d 93 (1971).

The father has failed to make such a showing. The mother's relationship with the doctor does not constitute such gross moral misconduct as has been held sufficient to justify a change in custody. Sullivan v. Sullivan, 236 Or. 192, 387 P.2d 571 (1963); ORS 107.137(4). The other cases cited in the dissent are not to the contrary; none is precedent for the proposition that discreet sexual intimacy between single adults is a moral transgression justifying a change of custody.

Similarly, the mother's difficulty in arranging child care does not rise to the level of parental neglect which has been held to constitute a substantial change of circumstances. Gwinner and Gwinner, 24 Or.App. 743, 547 P.2d 151, Rev. den. (1976); Yeamans v. Yeamans, 17 Or.App. 556, 523 P.2d 565, Rev. den. (1974). A single working parent must necessarily rely upon the assistance of others in the care of his or her children. This father chose not to seek custody of the child at the time of the separation and dissolution, because of the difficulty he would have had. The mother accepted custody despite the difficulty. Her arrangements have occasionally been makeshift, but the child was never left without resources.

In this proceeding the mother's performance as a parent has been closely examined and vigorously attacked. As a result, isolated instances of poor judgment or indicretion have been disclosed, but it is doubtful that any parent's performance would appear unblemished upon such close scrutiny. A change of circumstances is not established by showing that the custodial parent has made occasional mistakes since the entry of the decree, for every parent does, and a working parent in particular may have special problems of child care. Where the proof of change of circumstances is based upon specific instances of purported parental misfeasance--and often that is the only knowledge available to a concerned noncustodial parent--these events must be of a nature or number that reflect a course of conduct or pattern of inadequate care which has had or threatens to have a discernible adverse effect upon the child. No such showing has been made here.

Nor has the father shown that the benefits to be derived from a custody change outweigh the need for stability. The primary reason that the trial court ordered a change of custody was because the father was, since his remarriage, capable of providing the child with a family environment. ³ Although a two-parent home is usually preferable, remarriage of the noncustodial parent does not of itself justify the upset and confusion which necessarily accompany a change of custody. To hold otherwise would encourage divorced parents to race to the alter.

The closest thing to a substantial change of circumstances is found in the astute, but less tangible observations of the court's family counselor. He concludes that the father was the primary nurturing parent during the marriage because of the mother's work schedule, and that the child's gravitation toward the father's new two-parent home has become more pronounced since the separation. The adjustment of a child to the post-separation situation is properly considered if the change-of-circumstance rule is not to become formulaic. Here, the child's adjustment was influenced by a visitation arrangement which put her with her father for most of the good times and with the mother for everyday life. The child's relationship with her mother is further undermined, intentionally or otherwise, by such things as the father not allowing the child to bring her at-home clothes to his house on visits.

The child's adjustment to a dissolution would best be served by her realization that the custodial home is her permanent home, however green the other parent's pasture may be, and that it will not be changed simply because of the practical difficulties of a working custodial parent or the earlier remarriage of the noncustodial parent. That is what the policy of stability, which the change-of-circumstance rule is designed to promote, is all about, and it is the responsibility of both parents to work to that end.

It is clear from the record that, despite the bitter accusations of both parties, the court must here choose between two competent and loving parents. In such a case the interests of the child are better ...