Marriage of Ortiz, Matter of
| Decision Date | 21 November 1989 |
| Citation | 101 Or.App. 362,790 P.2d 555 |
| Parties | In the Matter of the MARRIAGE OF Michael Ernest ORTIZ, Respondent, and Lynda Elaine Ortiz, formerly Lynda Elaine Price, nka Lynda Elaine Richkind, Appellant. 82-2357; CA A60104. . On Appellant's Petition for Reconsideration |
| Court | Oregon Court of Appeals |
Steven M. Richkind, Salem, for petition.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
Mother petitions for review of our decision, 99 Or.App. 213, 781 P.2d 876 (1989), in which we affirmed without opinion the trial court's refusal in a custody modification proceeding to consider father's 1985 convictions for delivery of controlled substances. We treat the petition as one for reconsideration, ORAP 9.15, allow the petition, hold that the evidence should have been admitted and remand on the issue of the best interests of the children.
The parties' marriage was dissolved in 1983; they agreed that mother should have custody of their two minor children. However, on December 1, 1984, by stipulation, the original decree was amended to transfer custody of the children to father. On August 14, 1985, father was convicted for delivery of controlled substances. On March 14, 1986, after mother had experienced difficulty in exercising her visitation rights, the parties entered into a stipulated order fixing those rights in detail and deleting spousal support provisions.
On May 24, 1988, pursuant to a warrant, police searched father's residence for evidence that he was a co-conspirator in the delivery of methamphetamine. They seized a semi-automatic weapon, marijuana and a "white powdery substance." On September 30, 1988, mother filed a motion to require father to show cause why she should not be awarded custody of the children. By affidavit, she and her present husband said that her circumstances had improved, that they could provide the children with a stable home environment and that they believed that the children were suffering emotional damage as a result of father's involvement with drugs and multiple girlfriends.
At trial, mother attempted to introduce evidence of father's 1985 drug convictions. The trial court refused to consider that evidence. It noted that, to obtain a change in custody, a party must demonstrate a change in circumstances that has occurred since the entry of the last custodial order and that the proposed modification would be in the best interest of the child. See, e.g., Greisamer and Greisamer, 276 Or. 397, 400, 555 P.2d 28 (1976); Harper and Harper, 81 Or.App. 656, 658, 726 P.2d 972 (1986). Reasoning that it could not consider the 1985 convictions, because they had occurred before the 1986 order specifying mother's visitation rights, it ruled:
Mother argues that a stipulated visitation order is not a custodial order for purposes of the change in circumstances rule. 1 We agree. In contrast to matters involving custody, modification of parental visitation rights requires neither a determination of the relative fitness of the parents nor a showing of a substantial change in circumstances. See Pergament and Pergament, 28 Or.App. 459, 462, 559 P.2d 942 (1977). Rather, the critical factor to be considered is whether the change will benefit the children. Adams and Adams, 55 Or.App. 366, 369, 637 P.2d 1358 (1981). Given the different issues and standards in the two types of proceedings, it is inappropriate to treat visitation orders as ...
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T.H. v. M.P.B.
...a modification of parenting time will benefit the children. See Cole v. Wyatt, 201 Or.App. 1, 7, 116 P.3d 919 (2005); Ortiz and Ortiz, 101 Or.App. 362, 365, 790 P.2d 555, aff'd, 310 Or. 644, 650, 801 P.2d 767 (1990). In our de novo review of the trial court's decision in that regard, we giv......
- Marriage of Ortiz, Matter of
- Marriage of Ortiz, Matter of