Sconce v. Sweet

• Decision Date: 28 March 2012
• Docket Number: DO0445CU,A147616.
• Parties: In the Matter of the MARRIAGE OF Kelly R. SCONCE, Petitioner–Respondent,andBree D. SWEET, Respondent–Appellant.
• Court: Oregon Court of Appeals

249 Or.App. 152

274 P.3d 303

In the Matter of the MARRIAGE OF Kelly R. SCONCE, Petitioner–Respondent,andBree D. SWEET, Respondent–Appellant.

DO0445CU

A147616.

Court of Appeals of Oregon.

Argued and Submitted Feb. 23, 2012.Decided March 28, 2012.

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

Sarah Peterson argued the cause and filed the brief for respondent.

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

HADLOCK, J.

This custody-modification case underscores the importance of the change-in-circumstances determination that is a necessary predicate to an order that shifts custody of a child from one parent to the other. In this case, mother had custody of the parties' son from his birth in 1999 until late 2010, when the trial court granted father's motion to change custody. Because we agree with mother's contention that father did not prove that “there [had] been a substantial change in circumstances since the last custody order,” Travis and Potter, 236 Or.App. 563, 566, 237 P.3d 868 (2010), rev. den., 349 Or. 603, 249 P.3d 124 (2011), we reverse.

Although mother asks us to exercise our discretion to review this case de novo, we decline to do so, primarily because we reverse based solely on a legal error, not because of any concern about the trial court's assessment of the facts. Accordingly, we are bound by the trial court's factual findings to the extent that they are supported by any evidence in the record, and we review the court's legal conclusions for errors of law. Porter and Griffin, 245 Or.App. 178, 182–83, 262 P.3d 1169 (2011); State v. B.B., 240 Or.App. 75, 77, 245 P.3d 697 (2010).

We state the facts consistently with the trial court's express and implied findings, which the record supports. The child whose custody is at issue was born in 1999 and has Down Syndrome. When the child was about 18 months old, father, who never has been married to mother, petitioned to gain legal and physical custody of him. The trial court entered an order in November 2001 temporarily granting father parenting time that would increase over the next three years. The parties entered a settlement agreement, the details of which are not reflected in the record, and the trial on father's custody motion was canceled.

Father again sought custody in 2003, based on an allegation that mother was “unable or unwilling to properly care for and protect” the child. Father expressed concern that the child was at risk of being harmed by a man whom mother had married, then divorced, and with whom she had two children who were younger than the child. Mother had obtained restraining orders against that man, accusing him of abusing her in front of her children and of threatening to kill the child. In his 2003 custody-modification motion, father alleged that mother continued to see her ex-husband and allowed him to be around the child, despite her accusations of abuse. Mother opposed father's motion. She acknowledged that her ex-husband had treated her and the child poorly, but asserted that he more recently had gone to counseling and had proved himself to be “safe and loving.”

Shortly before trial on the custody-modification motion, mother's ex-husband was killed in an automobile accident. The trial court denied father's custody request, explaining that, because mother's ex-husband had died, “the principal reason for the request [had] disappeared.” The trial court also noted that it would not necessarily have granted father's motion even if mother's ex-husband still were alive, as mother had taken “appropriate steps to protect the child when [that man] became abusive.” Moreover, the court explained, mother had been the child's primary caretaker since birth, she and the child were strongly bonded to each other, the child was also bonded to his two younger siblings, and mother was caring appropriately for the child and attending to his special needs. The court also awarded mother a portion of her attorney fees, partly because the evidence supported her claim that father and his own mother had “become too aggressive in attempting to find fault with [mother's] care of the child * * * and in looking for reasons to litigate over the child.” The court entered a supplemental judgment in April 2004 that reflected its denial of father's motion to change custody. That judgment was based in part on the court's determination that a “substantial change of circumstances warranting a change in custody does not exist.” ¹

In mid–2005, mother gave the trial court 30 days' notice that she and her children would be moving to Veneta, Oregon, about 90 miles from Roseburg, where father lived. Mother asserted that she was moving for a variety of reasons, including to be better able to take advantage of resources for children with Down Syndrome and because she planned to attend college in Eugene. In response, father again moved for a change of custody, contending that mother's planned move to Veneta represented a substantial change of circumstances and that the move would not be in the child's best interests. After a hearing on father's motion to maintain the status quo pending resolution of the change-of-custody motion, the trial court entered a limited judgment providing that the child would remain with mother, who would not be required to move back to Douglas County, and that father would have parenting time for three weekends each month. At trial, the parties limited the issues to those relating to parenting time; consequently, the court did not address father's 2005 change-of-custody motion. In 2006, the trial court entered a supplemental judgment modifying the parenting-time arrangement. Mother gave birth to her fourth child in 2008.

The trial court file reveals no activity in the case from 2006 until June 2010, when mother moved the court for an order modifying the parenting-time provisions of the 2006 supplemental judgment. In a supporting affidavit, mother expressed her desire to move to Idaho so she could train to be a physicians' assistant through a program at Idaho State University. Mother asked that the parenting-time plan be modified to continue providing father with “reasonable access” to the child and to allow mother “to better [her] position by attending college.”

In response, father again moved to change custody. In doing so, father argued that the child's needs would not be met if mother were permitted to move, and he detailed his continuing conflicts with mother over parenting time and what he believed were deficiencies in her care of the child. Mother, in turn, challenged father's contention that she did not care appropriately for the child. She also expressed her belief that the opportunities she would have in Idaho would “better the life of [her] child and also [herself].” Nonetheless, mother stated that, if the trial court required her to remain in Oregon, she “would certainly do so.”

After a multi-day hearing, the trial court issued a detailed and thoughtful letter opinion in which it first addressed mother's motion to modify parenting time. The court found that a “move to Idaho [was] simply not in [the child's] best interests” and, accordingly, the court did not modify the parenting plan as mother had requested.² The trial court then turned to father's motion to modify custody, which required it to assess whether a substantial change in circumstances had occurred since entry of the last custody order. See Travis, 236 Or.App. at 566, 237 P.3d 868. The court ruled that the most recent custody order had been entered in 2001 and determined that circumstances had changed substantially since then, based on the birth of mother's three youngest children, which the court felt resulted in mother not being able to provide the child with needed attention; the child having fallen behind academically; the child having developed a closer relationship to father since 2001; and mother's planned move to Idaho. The court also determined that a change of custody would be in the child's best interests. Accordingly, the court entered a supplemental judgment changing custody from mother to father. Mother appeals.

The general principles that apply in custody-modification proceedings are well established.

“A parent seeking a custody change must show that (1) after the original judgment or the last order affecting custody, circumstances relevant to the capacity of either the moving party or the legal custodian to take care of the child properly have changed, and (2) considering the asserted change of circumstances in the context of all relevant evidence, it would be in the child's best interests to change custody from the legal custodian to the moving party.”

Boldt and Boldt, 344 Or. 1, 9, 176 P.3d 388, cert. den., 555 U.S. 814, 129 S.Ct. 47, 172 L.Ed.2d 23 (2008). The threshold question in this case relates to the first step of that two-part test, that is, whether father met his burden of proving that circumstances related to one of the parents' ability to properly care for the child had changed substantially since the last custody order. We agree with mother that the trial court applied an incorrect legal standard when it considered that question.

A court that seeks to determine whether circumstances have substantially changed must decide, as a preliminary matter, the time period during which that change must have occurred. We and the Supreme Court have used various terms to describe the event that represents the starting point of that time period, including entry of “the original judgment or the last order affecting custody,” Boldt, 344 Or. at 9, 176 P.3d 388; “the previous custody arrangement,” State ex rel. Johnson v. Bail, 325 Or. 392, 394, 938 P.2d 209 (1997); “the last order regarding custody,” Henrickson v. Henrickson, 225 Or. 398, 402, 358 P.2d 507 (1961); “the last judgment or order respecting custody,” Bradburry and Bradburry, 237 Or.App. 179, 186, 238 P.3d 431 (2010); ...