Sjomeling v. Lasser

• Jurisdiction: Oregon
• Parties: Shawn Michael SJOMELING, Petitioner–Appellant, v. Christina Louise LASSER, Respondent–Respondent.
• Citation: 285 P.3d 1116,251 Or.App. 172
• Docket Number: C053201DRA; A143871.
• Court: Oregon Court of Appeals
• Decision Date: 11 July 2012

251 Or.App. 172

285 P.3d 1116

Shawn Michael SJOMELING, Petitioner–Appellant,

v.Christina Louise LASSER, Respondent–Respondent.

C053201DRA; A143871.

Court of Appeals of Oregon.

Argued and Submitted March 31, 2011.

Decided July 11, 2012.

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

David N. Hobson, Jr., Beaverton, argued the cause for respondent. With him on the brief was Hobson & Angell, L.L.P.

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

DUNCAN, J.

Father appeals a supplemental judgment modifying the parties' parenting plan to allow mother to relocate with the parties' two children from Oregon to Utah. On appeal, father contends that the trial court erred in determining that the children's best interests are served by the relocation. As amplified below, we conclude that the trial court did not abuse its discretion in determining that relocating to Utah is in the children's best interests. Accordingly, we affirm.

We are bound by the trial court's findings of fact if there is any evidence in the record to support them. Kirkpatrick and Kirkpatrick, 248 Or.App. 539, 541 n. 1, 273 P.3d 361 (2012). Accordingly, deferring to the trial court's express determination that the testimony of mother and her witnesses was credible, we state the facts consistently with the trial court's express and implied findings, supplemented with uncontroverted information from the record. Id. at 541, 273 P.3d 361.

Mother and father, who were never married, have two children. In early 2009, at the time of the hearing concerning the proposed relocation, their son, SJ, was seven years old, and their daughter, SA, was five years old.

Initially, the parties—and their children, after they were born—lived in California. Before the children were born, while the parties were living together, father was arrested and convicted of assaulting mother. Although father was again arrested for assaulting mother in 2004, he was not convicted.With regard to that incident, mother explained that, at father's request, she signed a declaration calling into question aspects of the police report. Specifically, mother testified that the declaration “gave question to what was in the police report, saying that maybe he didn't kick me, maybe it was a chair that fell on me, maybe the door was busted off the hinges because the hinges were bad, not because of pushing out the door, things of that nature.”

Eventually, in June 2005, mother moved with the children to Oregon. Mother helped father move nearby a few months later but indicated to him that their romantic relationship was over. Father settled in Vancouver, Washington. The parties had an informal agreement that mother would retain custody of the children and father would have parenting time. Mother testified that father would see the children “for a night or two every week, every other week. It was rather sporadic.”

In October 2005, an incident occurred during one of father's visits that caused mother to leave the state with the children. In the two or three days before the visit, SA—who was about a year old—had been sick and had been to the doctor for antibiotic injections. On the day of the visit, SA was scheduled to go to the doctor again. Mother initially suggested that father cancel the visit because SA was sick, but she ultimately agreed to the visit after father agreed to take SA to the doctor. When father did, the doctor recommended that SA go to the hospital. Father called mother and told her that he was taking SA to the hospital, but he would not tell her which hospital. Father also told mother that he would not be returning the children to her. Mother called local hospitals but could not find SA because father had restricted the release of SA's information. Mother also called the police and an attorney. The next day, mother was able to determine where SA was, and she went to the hospital and found SA, who was ready to be discharged. Mother held SA in her arms and refused to release her to father. Tensions mounted between mother and father. Eventually, hospital security, child services, and the police responded. To resolve the conflict between the parties—who, as noted, had only an informal custody agreement at that time—the police allowed mother to retain SA, whom she was holding, but allowed father to take SJ.

Although father had previously only had short visits with the children, he kept SJ, who was about two and one-half years old. After 10 days, mother went to father's home and pushed her way past father's wife to retrieve SJ. Thereafter, she took both children to California and then to Utah. For approximately six months, mother ensured that father had no contact with the children. However, mother testified that, during that period, she had one conversation with father in which he “said something very threatening and alarming to me, basically implying that if I were dead, he would automatically have custody of the children.”

Mother was eventually arrested in Utah, and the children were placed in father's care for approximately three months. Mother ultimately pleaded no contest to two misdemeanor criminal charges in Washington, custodial interference in the second degree, RCW 9A.40.070, and criminal trespassing in the first degree, RCW 9A.52.070. Except for the three-month period that the children were in father's care, mother has had custody of the children and has functioned as their primary parent.

In 2007, the parties' informal arrangement had been replaced by a formal parenting plan in a stipulated judgment. In general, under that plan, father had parenting time every other weekend, alternating holidays, and for a period in the summer. Since the 2007 plan has been in effect, father has regularly exercised his parenting time.¹ Among other things, he and the children spend their time together camping, fishing, and playing games.

Nevertheless, at times, father has demonstrated an unwillingness to perform parenting tasks during his time with the children. For example, in May 2008, father failed to take the children to their dental appointments, which caused a disagreement between the parties that resulted in a complete breakdown in communication.

In caring for the children, mother has received extensive financial and emotional support from her extended family, including her parents, who lived nearby in Oregon but moved to Utah eight months before the hearing.² At the time of the hearing, mother and the children lived in a small apartment in the Portland area. Although mother worked part time at various positions including waitressing, her annual earnings had never exceeded $12,000 and she never independently made a salary sufficient to support herself and the children.³

For that reason, mother's parents consistently supplemented her income. ⁴ On average, mother's parents have given her approximately $750 each month to help her support the children. Although they intend to continue that support as long as possible, mother's father, Lasser, has been diagnosed with stage four non-Hodgkin's lymphoma, which is incurable and will likely necessitate his retirement within a couple of years.

Moreover, mother's extended family provided, in effect, a safety net for mother and the children that served to buffer stressful events. For example, Lasser testified that there were times when father “[went] out of his way to be uncooperative” and suddenly canceled his parenting time or failed to pick up the children so that mother could go to work. In order to prevent mother from losing her job, Lasser testified that, on more than one occasion, his wife had had to “run to Portland to baby-sit [at the] last minute.” Because mother's parents lived nearby and were involved in the children's care, the children saw their grandparents often and are bonded to them.

Although mother had at least one serious personal relationship after moving to Oregon, she never married. Father, on the other hand, married in 2006. At the time of his marriage, his wife had a son from a previous relationship, and, by the time of the hearing in this case, father and his wife had two children together—a daughter who was three years old and a son who was one year old.⁵ Because father regularly exercised his parenting time, SJ and SA are bonded to him as well as his new wife and their siblings.

Bluntly, mother and father's relationship is acrimonious, as is mother's relationship with father's wife. A detailed recitation of the parties' grievances and the points of conflict is unnecessary in this context. It is sufficient to note that they often have major conflicts about minor issues that last for months. In the words of the trial court, mother and father's relationship is a “high conflict” one.

Although the parties' contentious relationship has not resulted in further abuse against mother, in February 2008—approximately a year before the hearing in this case—father was convicted of assaulting a female friend.⁶That assault—and father's subsequent arrest—occurred during his parenting time, while the children were asleep in another room, after father and his wife had been out drinking with friends.

Because father was in custody and unavailable to take the children home, father's wife e-mailed mother and asked her pick up the children. Father's wife did not tell mother about father's arrest because she felt that mother “didn't need to know about it” and “[b]ecause [she] had a feeling [that mother] would use it against [them].” Further, when asked whether she would want to know if her children were in the care of someone who was drunk and who had been arrested for assault, father's wife replied:

“I would want to know about it, but I wouldn't expect my ex-husband to tell me about it. In fact, he hasn't before. He's been arrested in front of my son before and I just accept that he's his dad and if I find out things, I find them out, and I go to the courts if I have to...