Marriage of Welby, Matter of
| Decision Date | 10 February 1988 |
| Citation | 89 Or.App. 412,749 P.2d 602 |
| Parties | In the Matter of the MARRIAGE OF Faye Marie WELBY (now known as Faye Marie Stuart), Respondent, and Robert Samuel Welby, Appellant. D8306-64523; CA A41993. |
| Court | Oregon Court of Appeals |
Ronald E. Hergert, Oregon City, argued the cause for appellant. With him on the brief was Hibbard, Caldwell, Bowerman, Schultz & Hergert, Oregon City.
No appearance for respondent.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
Father appeals from an order modifying the custody provision of a dissolution judgment to transfer custody from him to mother.
In April, 1984, the parties entered into an agreement which gave father custody of the child. The agreement followed a custody investigation by Multnomah County Family Services, which recommended that custody be given to father. The agreement was incorporated into a dissolution judgment; neither party appeared in court. Mother had signed the agreement with no intention of following it, and in May, 1984, she absconded with the child to North Carolina. She secreted the child's whereabouts from father during the two years she spent in North Carolina. In May, 1986, mother turned herself in to the authorities, and she later pled guilty to custodial interference in the third degree, a Class C felony. She was placed on probation for two years. She then moved to modify the custody provision of the dissolution judgment to gain sole custody of child.
At trial, experts and family members testified that the child would be better off with mother, but that both parents were fit. The trial court found that there was no substantial change of circumstances but decided that, because the original custody judgment was never litigated, a showing of changed circumstances was not required.
Father argues that a substantial change in circumstances is required to change custody and that there was none here. We agree with father that a substantial change of circumstances is required. Greisamer and Greisamer, 276 Or. 397, 555 P.2d 28 (1976); Niedert and Niedert, 28 Or.App. 309, 559 P.2d 515 (1976), rev. den. (1977). We are not free to disregard that holding of the Supreme Court. On de novo review, we agree with the trial court and father that there was no substantial change of circumstances. Mother cannot rely on evidence of her strengthened relationship with her child which resulted from her felonious abduction and secreting of him to show a substantial change of circumstances. So to hold would encourage custodial interference such as occurred here to obtain an advantage in custody disputes. The trial court erred in modifying the custody provision. Without evidence of a change in circumstances, we do not reach the issue of the child's best interests. Remillard and Remillard, 30 Or.App. 1111, 1114, 569 P.2d 651 (1977).
Reversed and remanded with instructions to award custody to father.
The child is the real loser in this case. The majority opinion demonstrates the need for a fresh look at our approach to child custody modification. Because I believe that the opinion is contrary to the best interests of the child, inconsistent with the relevant statutes and mechanically applies a rule in a manner inconsistent with its underlying rationale, I respectfully dissent.
A trial judge in this kind of case is confronted with a unique trio of circumstances: clear and convincing evidence that the best interests of a child are that he be placed with one parent, an original decree that was never litigated, but no substantial change in circumstances which would warrant reopening the issue under mechanical application of the rule. I believe that the trial judge responded appropriately to the circumstances in this case.
The dissolution agreement in this case followed a custody investigation by Multnomah County Family Services which recommended that custody be given to father. The recommendation was made despite the fact that the home in which father lived was occasionally without heat and water and that he had spanked the child so hard as to leave bruises on his buttocks. The custody study found that mother had an "inability to deal with" father and a "frustration in his control of her," as well as a "long and inadequate work schedule."
Mother remarried in December, 1984, and the child lived with her and his stepfather until mother turned herself in to the authorities in May, 1986. During her two years in North Carolina, mother was not employed and was the primary caretaker of the child. The child had been placed in school in North Carolina and was doing very well there, got along well with his stepfather and had many friends. Pending completion of the court proceedings below, he was placed first in a foster home and then with his paternal grandparents, with a visitation schedule set up for both parents.
Five witnesses at trial besides the parents testified on the issue of who was the better parent, including the father's parents. All but one of those witnesses, including father's father, testified that custody should be awarded to the mother; one, father's mother, could not make a recommendation. The witnesses were fully aware of the fact that mother had absconded with the child. The reasons given by the witnesses for preferring mother's custody included stability, the quality of mother's care and father's significant personality problems. The only witness who opined that custody should be given to father was father himself. The record shows at most that father is not unfit.
The relevant statutes 1 demonstrate that, in a child custody modification action, the best interests of the child are paramount. ORS 107.137(1) provides:
"In determining the custody of a minor child pursuant to ORS 107.105 [divorce] or ORS 107.135 [modification], the court shall give primary consideration to the best interests and welfare of the child." (Emphasis supplied.)
Nothing in ORS 107.135 or ORS 107.137 qualifies that rule. The statute continues:
"The best interests and welfare of the child in a custody matter shall not be determined by isolating any one of the relevant factors referred to in subsection (1) of this section, or any other relevant factor, and relying on it to the exclusion of other factors." ORS 107.137(2).
The substantial change in circumstances rule was, of course, judicially created. It is not mandated by statute. ORS 107.135(1) provides, in part:
The sole statutory reference to the change in circumstances rule concerns only changes in spousal and child support. ORS 107.135(3).
are two reasons for the substantial change in circumstances rule: "to discourage repeated litigation of the same issues and, more important, to provide young children with a stable environment." Niedert and Niedert, 28 Or.App. 309, 313, 559 P.2d 515, rev. den. (1977). A stable environment is promoted by continuity in custodial relationships and reduced likelihood of relitigation. However, focusing solely on stability does not always promote the best interests of the child; hence ORS 107.137(2) requires that no single factor be relied on exclusively in making custody modification decisions. The purpose behind the substantial change rule is, ultimately, to promote the best interests of the child. When the substantial change rule is in conflict with the best interests of the child, the rule defeats its own purpose and must yield. This is such a case.
Courts in other jurisdictions have resolved the tension between the substantial change rule and the best interests of the child in two ways. Each approach has its problems. Some states have abolished the "substantial change" rule entirely; in those states, the only issue in a modification action is whether the change in custody would be in the best interests of the child. See Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765, (1982). That approach is...
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