Marriage of Southworth, Matter of

• Decision Date: 14 October 1992
• Docket Number: DO-0384-TM
• Citation: 835 P.2d 122,113 Or.App. 607
• Parties: In the Matter of the MARRIAGE OF Mark A. SOUTHWORTH, Respondent, and Debra L. Southworth, Appellant. 89-; CA A67932.
• Court: Oregon Court of Appeals

Page 122

835 P.2d 122

113 Or.App. 607

In the Matter of the MARRIAGE OF Mark A. SOUTHWORTH, Respondent and Debra L. Southworth, Appellant.

89-DO-0384-TM; CA A67932.

Court of Appeals of Oregon.

Argued and Submitted Oct. 21, 1991.

Decided July 1, 1992.

Reconsideration Denied Oct. 14, 1992.

Richard E. Forcum, Bend, argued the cause for appellant. With him on the brief were Paul J. Speck and Forcum & Speck, Bend.

Myer Avedovech, Bend, argued the cause for respondent. With him on the brief was Babb, Avedovech & Erwin, Bend.

Before RICHARDSON, P.J., and DEITS and RIGGS, JJ.

RICHARDSON, Presiding Judge.

Mother appeals from a judgment that held her in contempt and modified the dissolution judgment to award child custody to father. ¹ We reverse.

The dissolution judgment entered on July 17, 1990, awarded custody of the parties' minor child to mother. On August 27, 1990, father obtained an order requiring mother to show cause why she should not be held in contempt for violating the visitation provisions of the dissolution judgment and why he should not be awarded custody of and support for the parties' child. In the show cause hearing, the trial court found mother in contempt and imposed a fine of $100. It also modified the dissolution judgment to award custody of and support for the child to father.

Mother first assigns error to the judgment holding her in contempt for violating the visitation provisions of the dissolution judgment. In its decision, the trial court said:

"Apparently the visitation went all right until the mother removed herself from what had previously been the marital residence and moved to the property of the Avery's. There was no notice at that time given to the husband of where she was, he apparently located--I use husband and wife, I'm sorry, that's not accurate, but the father located her about the middle of July and was refused a visitation, perhaps the mother was unaware at that time of the decree. There wasn't any visitation until August 17th, the mother advised the father to pick the child up at the boyfriend's and I believe that was the weekend that the chicken pox surfaced and I think that that's accurate that the child had the chicken pox. There was some confusion about the visitation the next weekend. The next visitation was the first one scheduled in September, which the mother's current friend, Mr. Jefferies, set up the dinner meeting before that and then or at least prior to that time the father was told that he had to pick up and return the child to Mr. Jefferies['] residence rather than conform to the terms of the decree. The wife then moved--the mother moved then again from the Avery place and in November gave a letter with her address, which apparently was difficult to locate. The evidence was that she's house sitting there for some other people and there was an inability for a lengthy period of time then for the father to make direct contact with the mother and apparently whatever visitations occurred continued through the auspices of Mr. Jefferies. I think that the mother has demonstrated a pretty much of a lack of cooperation with regard to this visitation, she's refused absolutely to abide by some parts of the visitation requirements concerning the picking up and returning the child to her premises and has forced the father to deal with someone who he shouldn't have to deal with in conjunction with visitation. I find that the mother is in contempt with regard to this visitation matter."

"[A] prima facie case of contempt is shown by proof of (1) the existence of a valid court order; (2) the contemnor's knowledge of the order; and (3) voluntary noncompliance with the order." Couey and Couey, 312 Or. 302, 306, 821 P.2d 1086 (1991). An order finding contempt must be supported by specific findings of fact, including a finding that the violation was "willful." 312 Or. at 304, 821 P.2d 1086. "Willfully" means that the contemnor acted with bad intent. 312 Or. at 306, 821 P.2d 1086. We review to determine if the evidence is sufficient to support a finding that there was a violation and that it was willful. ² 312 Or. at 304, 821 P.2d 1086 (quoting State ex rel Oregon State Bar v. Wright, 280 Or. 713, 715, 573 P.2d 294 (1977)).

Mother argues that the trial court erred, because it based its decision in part on conduct that occurred before the dissolution judgment was entered on July 17, 1990. Facts that occurred before that date cannot support the court's contempt finding, because until then a valid court order did not exist. Mother moved from the marital residence at the end of June, 1990. The fact that she did not give father notice of her whereabouts at that time should not have been considered by the trial court.

Mother also argues that her other actions were not "willful" violations of the visitation provisions. ³ She is entitled to the presumption that she acted in good faith. State ex rel Oregon State Bar v. Wright, supra, 280 Or. at 720, 573 P.2d 294. Her behavior has not been a model of cooperation; however, after reviewing the record, we conclude that the evidence is insufficient to support the necessary finding that her violation of the dissolution judgment was willful.

Mother's refusals to allow the earliest attempted visitations were not contemptuous because, at the time of the first attempt, she was unaware of the judgment and, at the time of the next, the child had chicken pox. Father has had regularly scheduled visits since that time. ⁴

Mother has failed to comply with the provision that the "[n]oncustodial parent shall pick the child up from the front steps of the custodial residence" and "[r]eturn * * * the child to the front step[s] of the custodial residence." However, her failure appears to be a consequence of father's misconduct, rather than a willful violation on her part. On one occasion when father came to pick up the child for a visit, he tore down part of a wall, threw things and pulled wiring out of a fuse box. His behavior frightened mother, the parties' child and several other children who were in mother's care at the time. When he refused to stop or to leave the premises, mother locked herself and the children in the house and called the police. On the first attempted visitation after the dissolution judgment was entered, father arrived unexpectedly, swore at mother and tried to pull the child from her arms. After that incident, the owners of the property where mother resided said that he was no longer welcome to enter the property. In the light of those events, mother's reluctance to deal directly with father is understandable. The current arrangements are a reasonable attempt to comply with the spirit, if not the letter, of the visitation provisions. We do not understand father's insistence that mother be held in contempt for making arrangements that allow him to continue regularly scheduled visitations, when his behavior made it impossible for him to pick up the child at mother's doorstep.

The other facts recited by the trial court show no violations of any provision of the dissolution judgment. The judgment of contempt is reversed.

Mother's second and third assignments of error must be considered together. She claims that the trial court erred in finding a change of circumstances sufficient to warrant a change of custody. We review de novo. "The moving party in a custody proceeding must show that circumstances relevant to either party's capacity to care for the children have substantially changed since the most recent custodial order." Stevens and Stevens, 107 Or.App. 137, 139, 810 P.2d 1334, rev. den., 312 Or. 81, 816 P.2d 611 (1991) (emphasis in original); Ortiz and Ortiz, 310 Or. 644, 649, 801 P.2d 767 (1990). The rule requiring a substantial change of circumstances is designed to discourage repeated litigation over custody and to provide young children with a stable environment and avoid the damage done to a child who is exposed to shifting parental figures. Ortiz and Ortiz, supra, 310 Or. at 649, 801 P.2d 767; Poulson and Poulson, 70 Or.App. 505, 508, 690 P.2d 526 (1984), rev. den., 298 Or. 705, 695 P.2d 1372 (1985).

The trial court found that mother's failure to cooperate with the visitation provisions and her refusal to communicate with father created a change of circumstances that was not contemplated at the time of the dissolution. The only ongoing "violation" of the visitation provisions is mother's failure to comply with the requirement that father pick up and return the child at mother's front steps. As we have said above, her failure is related to misbehavior by father when he has come to pick up the child. Nevertheless, except for the first two attempted visitations, when mother was unaware of the judgment and when the child had chicken pox, mother has arranged and father has had regularly scheduled visitations, ⁵ and we fail to see how mother's failure to comply with the pick up and return requirement has changed the circumstances.

Although mother is reluctant to communicate directly with father, and her reluctance is also related to father's misbehavior, she does communicate through an intermediary and visitation has proceeded without any significant problem. Father may be disgruntled at having to communicate through an intermediary, especially an intermediary who is mother's boyfriend, but there is no evidence that the arrangement has affected the child's welfare to any degree. Although aggravated interference with visitation may justify a change of custody, see Birge and Birge, 34 Or.App. 581, 579 P.2d 297 (1978), the visitation problems in this case, at this point, do not establish a change of circumstances substantial enough to warrant a change of custody.

The trial court also found a change of circumstances not contemplated at the time of dissolution based on nude, nonsexual physical contact between the parties' child and mother's boyfriend. The judgment reads:

"The Court further finds that there was...