MATTER OF MARRIAGE OF PEIL

• Decision Date: 24 July 2002
• Citation: 51 P.3d 607,183 Or.App. 12
• Parties: In the Matter of the MARRIAGE OF Catherine Dewell COLSON, Appellant, and Thomas Hansen Peil, Respondent.
• Court: Oregon Court of Appeals

51 P.3d 607

183 Or.App. 12

In the Matter of the MARRIAGE OF Catherine Dewell COLSON, Appellant,

and

Thomas Hansen Peil, Respondent.

99-4327-D-2; A115427

Court of Appeals of Oregon.

Argued and Submitted May 20, 2002.

Decided July 24, 2002.

Laura Graser, Portland, argued the cause and filed the briefs for appellant.

Charles Kochlacs, Medford, argued the cause and filed the brief for respondent.

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

BREWER, J.

Mother appeals from a judgment modifying a dissolution judgment by changing custody of the parties' children from mother to father. Mother assigns error to the trial court's determinations that a substantial change of circumstances had occurred since the dissolution trial and that a change of custody would serve the children's best interests. On de novo review, ORS 19.415(3), we reverse.

The parties' dissolution action was tried in December 2000. At that time, mother and father were in their early forties and their children, a daughter and son, were 13 and 10, respectively. The parties' relationship began in high school in Missouri, and they lived together beginning in 1987. They were married in 1990 and separated in December 1999. They had lived in Oregon since 1994. Mother generally was a stay-at-home parent and was the primary caretaker of the children. Mother's only post-high school education consisted of a cooking course and some writing classes, and her only employment during the marriage consisted of several months' restaurant work for a few hours per day. At trial, mother gave the following testimony concerning her career objectives:

"Well, I've been taking a lot of writing classes over the past four years and I would like to be-write about food, I'd like to be a food writer. I'd like to go back to school and study journalism and write freelance food articles for magazines, do reviews, whatever."

At the time of the dissolution trial, father was a handyman after having spent several years attending college. The parties' family income—and lifestyle—had been subsidized throughout their marriage by frequent monetary gifts from father's parents.

Although much of the evidence at the dissolution trial centered on financial issues, father did seek custody of the children. It was apparent, however, that father's primary concern was restricting mother's ability to move from Oregon to St. Louis, Missouri. Mother testified that she might move to Missouri with the children. She gave the following reasons: (1) the parties were raised there; (2) their extended families still lived there; (3) mother had a strong network of friends there; (4) she hoped to go back to school, and her mother could help with the children while she was in class; and (5) there would be better educational opportunities for daughter, a promising ballet dancer. Father objected to mother moving the children from Oregon.

At the conclusion of the dissolution trial, the trial court ruled from the bench, finding that both parents loved the children but awarding custody to mother. The court structured a parenting plan based on the parents living in Jackson County and ordered mother to provide father with 90-day written notice of her intent to move outside the county. The court also awarded child support and five years' spousal support to mother. The court stated that its decision with respect to disputed financial issues was affected by its belief that father's "testimony about his income has been evasive, not forthcoming." The dissolution judgment included the foregoing provisions but, for reasons that are not entirely clear, was not entered until April 26, 2001.

On June 26, 2001, father filed a motion and order to show cause seeking a change of custody and setting the hearing date for July 30, 2001. Father's supporting affidavit explained the reasons for his request:

"Custody was awarded to mother and parenting time to me based upon both parents living in Jackson County. I believe mother intends to move, and I believe that it necessitates a modification of the custody and parenting time order. The children have lived in Ashland most of their lives, and have gone to school here, and have friends here. [Mother] gave me a '90 day notice' in February of 2001. I believe she is simply going to move at some point without further notice.

"I do not believe it is in the best interests of the children to move, and I believe any such move would be a substantial change of circumstances based upon the language of the [dissolution judgment]. In addition, [mother] withheld [our son] from school for 35 days this year, and now indicates she will home school him, which I believe is inappropriate."

The case went to trial as scheduled, and father's evidence followed the theme of his affidavit. The son's teacher testified that the son was in his fourth and fifth grade class during the preceding school year. He testified that the son has a learning disability and especially had difficulty with math. In respects to the son's attendance and progress, the teacher explained:

"Q. Okay. In the past year, has there been an attendance problem for [the son]?

"A. I'm struggling over the word `problem.' There has been—I've * * * had some concerns about his attendance, yes.

"Q. What's the attendance been like?

"A. He's—he was absent about 25, 26 percent of the time.

"Q. In your opinion, has that [a]ffected his learning?

"A. It's hard to tell. I've—in my opinion, yes, at least it's [a]ffected the program and our ability to deliver the program.

"Q. And I assume [a]ffected in a negative sense?

"A. [A]ffected in not—not letting us make the progress we'd like to make. Not—not a—negative, but not a progressive forward sense."

The teacher described the son as a "delightful child" who makes friends easily and is physically adept. According to the teacher, the son also "is very willing to listen in a situation where he needs listening to and redirectional behavior." In the past, the son had "language processing * * * deficiencies," but that concern "went away this year."

In the spring of 2001, "at the impetus of his parents," the son talked to the teacher about his reluctance to come to school. The son said that he did not like coming to school because it was "hard work for him mentally," but when he did come to school, he was "very positive and willing and participated." Although the school does not issue letter grades, the son's progress was acceptable. When asked how he thought the son would adjust to a move out of state, the teacher testified:

"[M]ostly what I think is that children are very resilient and [the son] is a very resilient child. I know from talking to him that he doesn't want to move, and * * * I know that his peers will miss him greatly. But, I think in the long run, he would—he would be resilient." The teacher believed that the son needs a new direction in his educational plan, whether at his current school or at a different school.

Father testified that he became aware of a school attendance problem after the dissolution trial in December. He said that mother told him that the son did not like school and that she did not make him go to school a couple of times. Father also testified that mother had mentioned "the possibility" of home schooling the son. Although father testified that he believed that the son should be regularly attending school, he did not testify that he had actually complained to mother about the son's school attendance or that mother had refused to address the problem. Father also testified that he did not want the children to move to Missouri but that he would move to Missouri as well if the court authorized the move.

Mother testified that she wanted to move to St. Louis with the children. Her reasons were virtually identical to the reasons that she gave in her testimony at the dissolution trial. Mother had the same career objective: she wanted to become a food magazine writer, but she realized that she would need to supplement her income by working as a private chef. Mother also recognized that her window of opportunity was narrow because her spousal support award was of limited duration. She explained that she could enter a two-year working writer's program at a St. Louis area college that would prepare her for a food writing career. She testified that no comparable program existed in southern Oregon. Mother also expressed concern about the daughter's progress as a dancer. She said that the daughter was falling behind ballet students with similar potential, and she repeated her trial testimony that the daughter could receive more extensive and suitable training in St. Louis than in southern Oregon.

It is not entirely clear when during the 2000-01 school year the son's school attendance began to slip. However, mother testified that the son's dislike of school grew during the period immediately following the dissolution. Mother testified that she had encouraged father to volunteer in her place in the son's class during the school year, and she opined that her absence from the classroom might have played a part in the son's increased dislike of school. She stated that she wished she could change that. The teacher was frequently absent due to a family health problem, and there often were substitute teachers in the class. Because the son seem depressed and said that he hated school, mother did not always make him go to school during that period. However, the son always did his homework, even when he did not go to school. Overall, the son's school performance was "fine," although the absences were a problem. In March, the son's teacher called mother about her son's dislike of school. Although the son was already receiving counseling to deal with issues relating to the dissolution, at that point the son's counselor began to address the son's dislike of school.

Mother believed that the proposed move to St. Louis especially would be beneficial to the son, because she...