CourtCourt of Appeals of Oregon
Citation39 P.3d 230,179 Or. App. 24
PartiesIn the Matter of the Marriage of Karen Ann DILLARD, Respondent, and Carvel Gordon Dillard, Appellant.
Decision Date23 January 2002

Carvel Gordon Dillard filed the brief pro se.

Clayton C. Patrick, Salem, filed the brief for respondent.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge, and WOLLHEIM, Judge.


In this custody modification proceeding, father appeals after the trial court granted mother's motion to dismiss for insufficient evidence and denied father's motion to modify custody. We review for errors of law to determine whether father presented a prima facie case, viewing the evidence in the light most favorable to father, Nolan v. Jackson National Life Ins. Co., 155 Or.App. 420, 433, 963 P.2d 162 (1998), rev. den. 328 Or. 275, 977 P.2d 1173 (1999); Gearhart v. Employment Div., 99 Or.App. 601, 603-04, 783 P.2d 536 (1989), rev. den. 310 Or. 70, 792 P.2d 104 (1990),1 and affirm.

The original judgment dissolving the parties' marriage was entered in June 1997. Sole custody of the parties' two children was awarded to mother. In June 1999, father commenced this custody modification proceeding.

At trial, father introduced the following evidence. As of the time of the modification trial, the parties' two sons were six and nine years old. Under the original dissolution judgment, father was entitled to parenting time of every other weekend and half of the holidays. In actual practice, however, father had the children with him half of the time. Father was extensively involved with his sons' hobbies and sports activities. Father testified that he takes the children "every place that I'm going" and that he involves them in his hobbies such as fishing, which they enjoy. He further testified that he never left the children with a babysitter who was not a member of his family. Father also described chores that he required the children to do and how he helped them with their homework. Father and his sister both testified that father cared for the children almost exclusively when they were sick.

The children were born in Grants Pass and lived there, except for two one-year periods, until September 1999. At the time of the original dissolution judgment, both mother and father lived in Grants Pass. The children had close relationships with father's mother and sister who also lived in the Grants Pass area. In September 1999, however, mother remarried and moved with the children to her new husband's home in Sandy. Father testified that, since the move, the older child has become withdrawn and irritable and has not wanted to return to his mother's home after parenting time with father. Although father testified that the younger child has said he would prefer to live in Grants Pass, father has not observed in the younger child any behavior problems that were, in father's view, caused by the move. It takes about five and a half hours for father to drive from Grants Pass to Sandy, and he had made the trip to bring the children to Grants Pass for parenting time only three times between August 1999 and February 2000. Father also spent two weekends in Sandy to be with the children.

When mother lived in Grants Pass, she generally cooperated with father in scheduling and coordinating father's parenting time and allowing additional time beyond that required by the original dissolution judgment. When mother decided to remarry, she refused to drive half-way to meet father to deliver the children or to allow parenting time beyond that required by the original dissolution judgment. Father described mother's new husband as "congenial" and stated that their relationship was amicable.

Father testified that starting about two months after the dissolution and lasting for about three months, he was concerned that mother was not providing sufficient supervision for the children after school. The older son told father that, when he arrived home after school, mother's house was locked and he was supposed to go stay with one of two neighbors, but sometimes neither of them was home. Father discussed the situation with mother, who said she would make sure that there was a specific person available each day, but the child reported to father that "he was still coming home to a locked house." When asked by the court if the childcare situation had been taken care of to father's satisfaction after three months, father responded, "Yes."

Ray Burleigh, a child and family therapist, testified about the custody evaluation he conducted for this proceeding. According to Burleigh, father is the children's "psychological parent." Burleigh described the close relationship between father and the children and the very strong attachment the older child in particular has to his father. Burleigh also testified about the changing needs of the children since the dissolution due to their age and level of development. According to Burleigh, accepted psychological authority encourages increased time with the same-gender parent as children reach age eight to ten. Burleigh also testified that the move from Grants Pass involved the loss of a "system of support" for the children. Burleigh explained that that support system included their grandmother and family friends, as well as the children's attachment to grandmother's farm and animals. As a third change since the dissolution, Burleigh cited lack of after-school supervision. There were multiple caregivers for the after-school period. According to Burleigh, "on two occasions the police were involved" to deal with one or both of the children during after school hours. The exact nature of police involvement is uncertain from the record. On one occasion, it appears that the younger son was being bullied by an older child and afterward the police were called. Overall, Burleigh stated that, in his opinion, custody should be with father. He explained that he based that opinion on the network of support in Grants Pass, mother's questionable problem-solving ability after the dissolution, and mother's lack of understanding of the need to create a new system of support in Sandy.

At the close of father's case, mother moved to dismiss for insufficient evidence. ORCP 54 B(2).2 Father's lawyer argued that father had presented a prima facie case, and the trial court responded, "[Y]ou're correct that you've made out a prima facie case, but do we want to sit here for two or three hours and hear testimony that's not going to make any difference?" The trial court subsequently entered a written order denying father's petition for modification. In part, that order stated: "The Court finds that there has not been an unanticipated substantial change in circumstances since the original Dissolution Judgment sufficient for it to even consider a change of custody." The order then addressed evidence that father had presented and explained why the court determined that none qualified as a substantial change of circumstances. We understand father to first argue that the trial court could not enter a directed verdict because its oral statement indicated that it had concluded that father had presented a prima facie case. However, written orders control over oral judicial statements. See, e.g., Haynes v. Burks, 290 Or. 75, 94, 619 P.2d 632 (1980) (Tanzer, J., specially concurring)

; Roe v. Doe, 161 Or.App. 477, 483, 984 P.2d 344 (1999),

rev. den. 329 Or. 651, 994 P.2d 133 (2000). One reason for that rule is that "a judge may speak casually when discussing the case or giving guidance to the lawyers * * *." Haynes, 290 Or. at 94,

619 P.2d 632. In any event, in this case, in light of the court's entire oral statement, it does not appear that the court's statement should be read to stand for as much as father argues. After stating that father has "technically * * * made out a prima facie case," the court continued:

"The principal thrust of [father's] argument has been that he's spent more time than he was allotted in the divorce decree. It's interesting, as I was listening to this, when I do divorces and there's a custody fight, I often—I'll set the visitation. I say, this is a minimum visitation. I encourage you to give more, because—and I think Mr. Burleigh would agree with me, 50-50 is great, you know, both parents. They ought to know both the natural mother and the natural father. And the law is pretty clear that [neither] this court nor any other trial court can stop people from moving out of state. You know, I've known cases where people go clear to Hawaii, go to Alaska. And sure, the father or the mother, whichever one [did not have] custody at the time, is going to have less visits, less time with them.
"And I think the father—Mr. Burleigh has indicated that the boys are moving into the age where they need the masculine influence, but he hasn't said they are there yet, and I think there is masculine influence apparently in the home with the mother. And that's not to mean that he should take over the father's role, because I don't think step-fathers should even attempt to do that. So I'm satisfied that there has not been a showing of a substantial change in circumstance that would justify the court in taking [custody] away from * * * mother. So I'll grant the motion[.]"

Viewed in its entirety, the trial court's oral statement is not inconsistent with its written order granting mother's motion. And even if it were, the court's written order granting mother's motion would control.

We understand father to argue alternatively that the trial court erred in concluding that he had not presented sufficient evidence to withstand mother's motion to dismiss. To prevail on a petition for custody modification, the requesting party has the burden to establish that there has been a substantial change in circumstances relating to the...

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