MATTER OF MARRIAGE OF SHELTON

• Decision Date: 10 November 2004
• Citation: 196 Or. App. 221,100 P.3d 1101
• Parties: In the Matter of the MARRIAGE OF Karen Lynese SHELTON, nka Karen Lynese Melius, Respondent, and Danny Jay Shelton, Appellant.
• Court: Oregon Court of Appeals

100 P.3d 1101

196 Or. App. 221

In the Matter of the MARRIAGE OF Karen Lynese SHELTON, nka Karen Lynese Melius, Respondent,

and

Danny Jay Shelton, Appellant.

C932441DR; A119483.

Court of Appeals of Oregon.

Argued and Submitted December 9, 2003.

Decided November 10, 2004.

Kristin Winnie Eaton, Portland, argued the cause for appellant. With her on the briefs was Gevurtz, Menashe, Larson & Howe, P.C.

Margaret H. Leek Leiberan, Portland, argued the cause for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge,¹ and DEITS, Judge pro tempore.

DEITS, J. pro tempore.

Father appeals a modification of a dissolution judgment, primarily challenging a reduction in his parenting time. On de novo review, ORS 19.415(3) (2001),² we modify the parenting schedule, remand the case for recalculation of child support, and otherwise affirm.

Mother and father have two children, L and A, who were 14 and 11 years old, respectively, at the time of the modification hearing in 2002. When the parties' marriage was dissolved in 1993, they agreed to joint custody. The children's primary residence was with mother, and father was given substantial parenting time, including every Thursday at 5:00 p.m. until either Saturday evening or Sunday morning,³ alternate major holidays, Christmas Eve, Father's Day, and two weeks during the children's summer vacation. That schedule continued virtually uninterrupted for eight years.

At the time of the dissolution, mother and father resided less than five miles apart. Some time after the dissolution, mother moved to a location about 16 miles away from father's residence. In 2000, mother again moved, this time to a residence in Clackamas about 24 miles from father's residence. Both mother and father have remarried.⁴ Father's wife has a college-age son from her previous marriage, and mother's husband has custody of his three sons from his previous marriage.

In August 2001, mother moved for modification of the dissolution judgment. She sought, among other things, termination of joint custody and modification of the parenting schedule. The parties stipulated that mother have custody. They also agreed that the parenting schedule needed to be changed. They did not agree, however, about how the parenting schedule should be modified.

The parties agreed to a parenting time evaluation by Dr. Brounstein, a clinical psychologist with experience in parenting evaluations. Brounstein conducted an extensive review, talking with all the children and parents involved. In his report, he first noted that both mother and father were "reasonably well adjusted adults" and that "both are readily able and willing to focus on the best interests of their children." He also noted that it was to the children's benefit that they participate in two "positive functional family units." However, he stated that

"the relatively recent and temporally close remarriages of both parents to their spouses have shaken * * * a previously harmonious parenting time arrangement * * *. Simultaneous to these changes have come the changes in the developmental stages of the children, as well as those of the two developing family systems * * *. The children are requiring more autonomy (time with friends, increased authority over such things as schedule, music, grooming, recreational activities and bedtimes)."

In view of the "changing developmental needs of the children as well as the promotion of family cohesiveness" in both households, Brounstein recommended the following modification of father's parenting time: On alternate weeks, the children would be with father from Wednesday afternoon until Sunday at 5:00 p.m. or Monday morning.⁵ During the other weeks, the children would be with father from Wednesday afternoon until the start of school on Thursday. Brounstein recommended retaining other provisions of the original parenting schedule, including the split holiday times and two weeks' uninterrupted parenting time for father in the summer. Father urged the court to adopt Brounstein's proposal. As explained below, mother agreed with some parts of Brounstein's recommendation but took issue with other parts.

At the modification hearing, Brounstein testified that both children were well adjusted and healthy emotionally and deeply attached to both parents, and that they had "special attachments to all of the adults in their family, to mother and stepfather and father and stepmother." He also explained that the children "are now at a developmental level far different from where they were when the * * * original parenting time plan was established" and, because of their ages, the children did not need the same frequency of parenting time that was required when they were young children. Brounstein testified that the children did not tell him that they desired a change in schedule or that they were bothered by the commute between households, stating, "I think in [a] sense mother initiated * * * this action to seek a change and I think as much being a voice in the children's best interest."

Brounstein's recommendations were based on his opinion that father should have a "large number of nights with the children" and that the parenting schedule should be consistent because the children had benefitted from the "consistency of rhythm" that existed under the original parenting schedule and from the great effort that father was making to do the driving necessary to spend time with them. However, Brounstein also indicated that it made sense for father to have blocks of parenting time when the children did not have to be transported and there was less conflict with their schedules:

"I recognize under the circumstances that to have these back and forth, back and forth things happen every single week with half of a weekend was just chopping things up too much for the children. It doesn't allow for the families to establish traditions. It doesn't allow them to settle in in their added relationships."

Brounstein agreed that the children should have a greater say in what they do and how they do things but indicated that there was no reason to reduce the amount of time that father would have with the children on a week-to-week basis. He also indicated that, with respect to mother's concern about the long commute to father's house, the benefit of father's interaction with the children during that time outweighed the negative aspects. Finally, Brounstein did not believe that the children had any need to spend time in one household over the other.

As noted, mother agreed with much of Brounstein's recommendation. However, according to mother, both children had come to her with complaints about the existing parenting schedule and had expressed a desire for a "home base." She testified that she wanted a more "traditional" parenting schedule that would be less intrusive to the children's homework and other activities, because "the kids [have] reached the age where they wanted to do more activities with friends, family, just events. And a lot of these things did come up [on] Thursdays, Fridays and Saturdays." For those reasons, mother testified that it was becoming unworkable for the children to be with father every weekend. Accordingly, mother agreed with Brounstein's recommendation of every-other-week extended parenting time for father. In her view, however, that time should begin on Friday night (Brounstein had recommended Wednesday afternoon) and run through Monday morning (Brounstein had recommended either Sunday at 5:00 p.m. or Monday at the start of school). Mother also disagreed with the recommendation of a midweek overnight on alternate weeks. Her primary reason was that the midweek commute from her home to father's home was causing stress for the children and disrupting their homework time. Mother agreed with Brounstein that father should continue to have two weeks of summer vacation. Further, she suggested that she would be agreeable to alternate spring, Thanksgiving, and Christmas vacations, something that the parties had not done in the past.

Father agreed that a change in the parenting schedule was appropriate. In particular, he acknowledged that it had become appropriate for each parent to have a "full weekend." Father's primary concerns were that his overall amount of parenting time not be reduced and that he continue to have regular involvement with his children on a week-to-week basis. Father disagreed with mother's view of the effect of the frequent commutes on the children. He viewed the commute as a benefit because it gave him uninterrupted time with the children to discuss their homework and extracurricular activities. He further stated that the children enjoy their conversations during the drives. He stated that the children had not complained to him about the commute or the parenting schedule. Father testified that he believed it was important for both parents to continue to be involved with the children on a week-to-week basis in order to keep up-to-date and involved with their activities. In father's view, restricting weekly time with either parent would harm the children's relationship with that parent and undermine the benefits the children had received from having two active parents.

In response to a question from the trial court, father indicated that he currently had 12 nights per month with the children. The trial court questioned father whether it would be acceptable to maintain a similar number of "overnights"⁶ per year — which it calculated to be 144 — but allocate them differently — specifically "doing it as a huge block of time in the summer as opposed to Wednesdays and Thursdays." Father responded, first, that a long block in the summer would interfere with mother's parenting time. When the court explained that father's summer block could be subject to mother having alternate weekends, father stated:

"Well, I think where I stated earlier where I want to be involved every week with the kids' lives and that's why

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