MATTER OF MARRIAGE OF COLLINS

• Decision Date: 14 August 2002
• Citation: 51 P.3d 691,183 Or.App. 354
• Parties: In the Matter of the MARRIAGE OF Darcy Lavonne COLLINS, Appellant, and George Elwood Collins, Respondent.
• Court: Oregon Court of Appeals

51 P.3d 691

183 Or.App. 354

In the Matter of the MARRIAGE OF Darcy Lavonne COLLINS, Appellant,

and

George Elwood Collins, Respondent.

97-1567-D3; A114714.

Court of Appeals of Oregon.

Argued and Submitted June 26, 2002.

Decided August 14, 2002.

Mary Kim Wood argued the cause for appellant. With her on the brief was Wallace W. Lien, P.C.

No appearance for respondent.

Before LANDAU, Presiding Judge, and BREWER and SCHUMAN, Judges.

SCHUMAN, J.

Mother appeals from the trial court's order modifying the judgment that dissolved her marriage to father. The dissolution judgment awarded her sole custody of the couple's two children. The trial court's modification awarded "physical custody of the minor children to [father], with both parties retaining legal custody and with liberal parenting time being granted" to mother. We review de novo, ORS 19.415(3); Way v. Prosch, 163 Or.App. 437, 443, 988 P.2d 422 (1999), and reverse.

The parties' seven-year marriage was dissolved in 1997. At that time, their daughter was five and their son was three. Father, a truck driver, traveled frequently and did not seek custody. In 2000, he remarried. Shortly thereafter, disagreements arose between him and mother regarding his visitation schedule. Mother filed a motion seeking either court-ordered mediation or a new parenting plan. Father, however, responded by asking for a change in custody, alleging that mother had physically assaulted their daughter and "engaged in inappropriate sexual activity" in front of the children. Prior to the hearing on the matter, father more explicitly alleged "regular, physical assaults on [the daughter] by [mother], and * * * intimate, lesbian sexual conduct, which [mother] has conducted in places where the children could see it." Based on an evidentiary hearing, the trial court made findings of fact including the following:

"b. [Mother] has experienced some frustration relating to her effort to work full time as a single parent, while caring for the two children. As a result of this frustration, she has exhibited difficulty controlling her anger from time to time in the presence of the children. In one case in particular, [mother] experienced an outburst which resulted in her shoving [daughter], causing her injury.

"c. Of significance to the court, was the evidence at hearing that [daughter] has, on several occasions, participated in intimate sexual-like contact with one of her 9-year-old female friends, which the court finds to have been [daughter's] effort to mimic conduct [daughter] observed between her mother and another adult. Exposing a young child to intimate sexual contact between adults is detrimental to the child's welfare."

Our de novo review of the record leads us to somewhat different conclusions, not with regard to the historical facts per se, but with regard to some of the surrounding factual observations and inferences.

We find that on one occasion, mother, after work, was attempting to carry on a telephone conversation and prepare dinner. Daughter repeatedly demanded her attention. In frustration, mother pushed her away; daughter fell backwards and hit her head on the floor or wall. She did not bleed or lose consciousness, and mother immediately telephoned father and mother's own parents. Father drove to mother's home and took daughter to the hospital, where she was observed briefly and released with a golf-ball-sized lump on her head. The hospital, pursuant to its statutory obligation, informed state child welfare officials, who investigated and found no reason for further action.

Regarding the "intimate sexual conduct," we find that, on one occasion when mother reasonably believed daughter was asleep in daughter's bedroom, daughter wandered to the door of mother's bedroom and observed her and another woman in bed kissing. On other occasions, daughter might have seen mother and another adult kissing. Further, daughter and a friend confessed to having engaged in prepubescent quasi-erotic behavior with each other on a few occasions. There is no evidence that mother was promiscuous, that either child ever witnessed anything more erotic than kissing, or that either was traumatized by mother's behavior.

The foregoing facts serve as the basis for our custody modification inquiry.

A custody modification disrupts the life of the child involved; it is not a step to be taken merely because some change in circumstances has occurred. Thus, we require the party moving for the change to demonstrate that (1) a change in circumstances has occurred since the most recent custodial order, and that (2) the modification will serve the best interests of the child. State ex rel Johnson v. Bail, 325 Or. 392, 396-97, 938 P.2d 209 (1997); Francois and Francois, 179 Or.App. 165, 168, 39 P.3d 265 (2002). The first step is a threshold; unless the moving party proves a change in circumstances, the court will not address the best interests of the child. Bail, 325 Or. at 397, 938 P.2d 209; Francois, 179 Or.App. at 168, 39 P.3d 265.

Although custody modification decisions depend on the particular circumstances in any given situation, certain principles emerge from the cases. The change in circumstances must be substantial. Southworth and Southworth, 113 Or.App. 607, 612, 835 P.2d 122, ...