Matter Of The Marriage Of Kathleen M. Bradburry

• Decision Date: 01 September 2010
• Docket Number: 98C32891; A140581.
• Citation: 237 Or.App. 179,238 P.3d 431
• Parties: In the Matter of the MARRIAGE OF Kathleen M. BRADBURRY, nka Kathleen Sutton, Petitioner-Appellant, and Virgil F. Bradburry, II, Respondent-Respondent.
• Court: Oregon Court of Appeals

237 Or.App. 179

238 P.3d 431

In the Matter of the MARRIAGE OF Kathleen M. BRADBURRY, nka Kathleen Sutton, Petitioner-Appellant, and Virgil F. Bradburry, II, Respondent-Respondent.

98C32891; A140581.

Court of Appeals of Oregon.

Argued and Submitted April 09, 2010.

Decided Sept. 1, 2010.

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

Rachel J. Kittle argued the cause for respondent. With her on the brief was Law Office of Gordon L. Dick.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

DUNCAN, J.

This is a child custody case in which mother appeals the trial court's supplemental judgment changing custody of the parties' youngest child, C, from mother to father. Mother argues that father failed to prove a substantial change in circumstances since the initial judgment establishing custody. She further argues that, even if there was a substantial change in circumstances, father failed to establish that it was in C's best interests to change custody of C from mother to father. We reverse and remand.

We review the trial court's custody decision de novo. ORS 19.415 (2007). ¹ The inquiry in child custody cases is fact intensive. With that in mind, we begin with a detailed history of the parties' relationship with each other and with their children. We then analyze those facts according to the factors set forth in ORS 107.137(1).

FACTS

Mother and father married in 1991. They have two daughters, L and S, and a son, C. L was born in 1993, S in 1996, and C in 1997. This case concerns the custody of C only.

Mother and father separated in 1998, when C was about 14 months old. Mother and the children moved in with mother's father, Green. Mother and father divorced in 1999, and, in a stipulated judgment, mother was awarded sole custody of the children and father was awarded parenting time.

Although the parties stipulated to the custody and parenting time awards, a serious dispute regarding parenting time arose. Shortly after the divorce, father kicked in mother's door because he was angry about not being able to see the children. The children did not witness the event; according to father, the oldest child, L, was in bed at the time. Based on father's actions, mother obtained a restraining order against him.

Early on, when father would come to visit the children, he would often take only L out. S and C were still in diapers, which, according to mother, was too much of a hassle for father. Father's visits with C increased when C was about two and one-half years old and out of diapers. The visits were not regularly scheduled; sometimes months passed between visits.

In early 2002, the parties entered into a mediated agreement regarding parenting time. Under the agreement, father was to have parenting time with the children every other weekend. The parties adhered to the agreement until the fall of 2002, when mother obtained a second restraining order against father, who had come at her with a pole and thrown things at her while she was in a car with L. After mother obtained the restraining order, father sent mother a letter stating that he no longer wanted contact with the children.

That changed in 2005, and father again had parenting time with the children every other weekend. Because the second restraining order was still in effect, the children's paternal grandmother would pick up the children.

When L was 11 years old, she stopped visiting father; she testified that she stopped visiting because father called her a name. S and C continued to visit father, but those visits ceased when, after the second restraining order lapsed in October 2006, the grandmother no longer picked up the children. On several occasions, mother drove S and C to father's house for weekend visits, but no one was there to meet them. Father missed three months of visits in a row. S decided she did not want to visit father anymore.

After Christmas 2006, father resumed visits with C every other weekend, and he has continued them since. In addition, C has visited father for longer periods during the summers. In April 2008, father filed a motion for sole custody of C. At the hearing on the motion, father asserted that, under the then current custodial arrangement, his relationship with C was being actively undermined.

At the time of the custody hearing, C was 11. He lived with mother and his sisters, as he had since birth.

Mother was his primary parent and had been since the parties separated 10 years earlier. As father himself testified, C was strongly attached to mother, and mother “support[ed] him 100 percent.”

C's sisters were 14 and 12. C and his sisters had what could be described as a typical sibling relationship. C and his oldest sister, L, fought over video games and bickered in the car. L teased C, but she also defended him against teasing by others. C's other sister, S, had always been close to C. S was protective of him; she stopped L from teasing him.

In addition to mother and his sisters, C lived with his stepfather, Sutton. C first met Sutton when C was two and one-half years old and Sutton began dating mother. In 2001, when C was five, mother and the children moved to Bellfountain to live with Sutton. They lived together as a family, and mother and Sutton married in 2006. Sutton and C had a “very good relationship.” Sutton helped C with his homework, played catch with him, and supported C's interests in activities such as go-carting and motor biking. According to Sinks, a parenting time coordinator involved in the case, Sutton was “very active” in C's life.

In 2007, C's maternal grandfather, Green, came to live with the family in Bellfountain. He has a stand-alone apartment on the family's property. C spent a lot of time with Green. Green helped C with his homework. C talked with Green, and the two liked to watch television and eat popcorn together. According to mother, “All of [C's] memories have [Green] in them[.] * * * He's a constant figure-male figure in his life.”

C attended a small school. He had an individualized educational plan, which included speech therapy and tutoring. He had a good relationship with his tutor and made significant progress each year. He maintained a 3.3 grade point average.

C had two close friends, and C's best friend was “always” at C's house. C had been teased in school because he was big for his age, but both C and his classmates came to appreciate C's size after C joined the football team and, as a lineman, protected his smaller classmates. Both mother and father attended C's football games. By all reports, C loved being on the football team. He did well and was appreciated as the “big man” on the team.

After football, C joined the wrestling team, which, according to mother, was “devastating.” C lost all but one of his matches, and the losses dealt a substantial blow to his self-confidence. As mother explained, C did well in football, where he shared victories and losses with his teammates, but not in wrestling where “you lose solo on a mat.” Both father and mother attended C's matches, and C finished the season. But, C was so discouraged that he decided not to play a spring season sport. Mother planned to encourage C to play football again because he enjoyed it so much and because it improved his self-confidence. She did not plan to encourage him to wrestle again.

Father, who had been a successful wrestler, questioned why mother planned to encourage C to play football, but not wrestle. Father believed that mother intentionally restricted C from participating in activities that father was interested in sharing with C. According to father, C stopped participating in Cub Scouts and go-cart racing when father sought to attend those activities. According to mother, C was never registered for Cub Scouts; he went to a few meetings, but did not join the troop because of a scheduling problem and because he did not like a few of the boys in the troop. Mother did not explain why C stopped go-cart racing.

C saw a counselor to help him deal with the tensions between his parents. The counselor served as an independent and supportive listener and advocate for C. According to mother, C “adores” the counselor and greatly benefited from the counseling. C had counseling appointments scheduled during an extended summer visit with father, but father did not take him to the appointments.

C's relationship with father was different from his sisters'. As the trial court found, L and S “are completely soured on their dad.” L, the oldest daughter, was approximately six years old when father kicked in the door, and approximately 11 years old when he came at mother with a pole and threw things at her. At the hearing on father's motion for custody of C, the trial court asked L if she still held the “door breaking down thing” against father, and L said that she did. L added that she did not like father because he had failed to appear for appointments and had attempted to use her to get information about the family, telling her that, if she loved him, she would tell him what happened at her house. L described father “being in and out of our lives for a long time,” and she testified that she did not consider him family. She regarded her stepfather, Sutton, as her father. Although L was registered in school under father's last name, which is her legal last name, she opted to use Sutton's name instead. L would like to be adopted by Sutton. At one point, mother pursued the possibility of having Sutton adopt L and S, but ultimately abandoned the idea.

By all accounts, L is a strong-willed and vocal teenager; she does not like father and makes no secret of her feelings. Mother made L go to counseling as part of an effort, required by the trial court, to re-establish contact between L and father. L did not want to go to the counseling, but she did. After a few sessions, the counselor advised that it would not be good for L to see father anymore. Because the...