Marriage of Ortiz, Matter of

• Court: Supreme Court of Oregon
• Writing for the Court: VAN HOOMISSEN
• Citation: 310 Or. 644,801 P.2d 767
• Decision Date: 26 November 1990
• Parties: In the Matter of the MARRIAGE OF Michael Ernest ORTIZ, Petitioner on Review, and Lynda Elaine Ortiz, formerly Lynda Elaine Price, nka Lynda Elaine Richkind, Respondent on Review. TC 82-2357; CA A60104; SC S37187.

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801 P.2d 767 310 Or. 644 In the Matter of the MARRIAGE OF Michael Ernest ORTIZ,
Petitioner on Review,
and
Lynda Elaine Ortiz, formerly Lynda Elaine Price, nka Lynda
Elaine Richkind, Respondent on Review. TC 82-2357; CA A60104; SC S37187. Supreme Court of Oregon,
In Banc. Argued and Submitted Sept. 6, 1990.
Decided Nov. 26, 1990.

[310 Or. 645] Melvin T. Rollema, Albany, argued the cause and filed the petition for petitioner on review.

Larry W. Stuber, Salem, argued the cause for respondent on review. With him on the response was Steven M. Richkind, Salem.

[310 Or. 646] VAN HOOMISSEN, Justice.

This is a custody modification proceeding. ORS 107.135(1)(a). The issue is whether a stipulated visitation order is a custody order for the purpose of the change of circumstances rule. Henrickson v. Henrickson, 225 Or. 398, 358 P.2d 507 (1961). ¹ The Court of Appeals held that it

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is not. Ortiz and Ortiz, 101 Or.App. 362, 790 P.2d 555 (1990). We agree and affirm.

In 1983, a stipulated dissolution judgment was entered, awarding custody of the parties' children to mother, subject to father's reasonable visitation. In 1984, the judgment was amended, again by stipulation, changing custody of the children to father, subject to mother's reasonable visitation.

In 1985, father was convicted of two counts of delivery of a controlled substance (cocaine).

In 1986, following a dispute over mother's visitation rights, the parties stipulated to an order containing a specific visitation schedule for mother and terminating her spousal support. ² Custody was not in issue in 1986.

In May, 1988, the police searched father's home, under a search warrant, for evidence that he was a co-conspirator in a drug ring. The children were at the home when it was [310 Or. 647] searched. A semi-automatic handgun, methamphetamine, scales, and narcotics paraphernalia were seized. ³

In September, 1988, mother obtained an order to show cause why the childrens' custody should not be changed to her. She asserted in her affidavit that the children were suffering emotional damage as a result of father's involvement with drugs and multiple girlfriends; that her circumstances had improved; and that she and her new husband could provide the children with a stable home environment.

At the 1988 change of custody hearing, mother attempted to introduce evidence of father's 1985 drug convictions. Father objected, arguing that those convictions occurred before the parties' 1986 stipulated visitation order, which, he argued, was the last custody order in this case. Father relied primarily on Henrickson v. Henrickson, supra.

The trial court sustained father's objection and refused to consider the evidence, explaining:

"There is nothing that I see that can give me authority to change that decree based on 'circumstantial [sic ] change of circumstances' based on the proof that has been presented before me. I just don't see it. Even though, as I say, if the matters that you are alluding to, the matters you stated are true, you know, it's a different story, but there is nothing that I have that shows, or proves to me that those are true. I would like to be able to address, if there is an issue, the entire issue. I would like to be able to see this whole thing, but I have to deal with what I have before me and that doesn't give me, in my opinion, any authority to change the status quo. So, that is the ruling."

Concluding that mother had not shown a change of circumstances since the entry of the 1986 order, the trial court denied her motion to change custody. She appealed.

The Court of Appeals first affirmed the trial court's order without opinion. Ortiz and Ortiz, 99 Or.App. 213, 781 P.2d 876 (1989). However, on reconsideration, the court held that a stipulated visitation order is not a custody order for the purpose of the change of circumstances rule and that the evidence [310 Or. 648] of father's 1985 drug convictions

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should have been admitted. Ortiz and Ortiz, supra, 101 Or.App. at 364, 790 P.2d 555. On de novo review, the Court of Appeals concluded that the evidence presented at the hearing showed a change of circumstances since the last order respecting the childrens' custody. Because it found that the record contained no evidence on the issue of the childrens' best interests, the Court of Appeals remanded the case to the trial court to determine whether a change of custody would be in the childrens' best interests. Father petitioned this court for review.

Father contends that the change of circumstances rule prohibits a court from considering any evidence relevant to custody that existed before the entry of the last custody order. He argues that the 1986 stipulated visitation order is the last custody order, because a visitation order is inherently a custody order, and that it makes no difference analytically whether the visitation order is entered by stipulation of the parties or after a contested trial. He further argues that, if a visitation order is by stipulation, the parties have implicitly agreed that one of them shall retain custody and the other shall have visitation rights: If...