State Dept. of Human Resources ex rel. Johnson v. Bail

• Citation: 140 Or.App. 335,915 P.2d 439
• Parties: STATE of Oregon, DEPARTMENT OF HUMAN RESOURCES ex rel. Pamela JOHNSON, Respondent, v. Jason BAIL, Appellant. F542; CA A83626.
• Decision Date: 17 April 1996
• Court: Court of Appeals of Oregon

Page 439

915 P.2d 439

140 Or.App. 335

STATE of Oregon, DEPARTMENT OF HUMAN RESOURCES ex rel. Pamela JOHNSON, Respondent, v. Jason BAIL, Appellant.

F542; CA A83626.

Court of Appeals of Oregon.

Argued and Submitted Oct. 9, 1995.

Decided April 17, 1996.

Appeal from Circuit Court, Polk County. John L. Collins, Judge.

Clayton C. Patrick, argued the cause for appellant. With him on the brief was Patrick & Meadowbrook, Salem.

Gordon L. Dick, argued the cause for respondent. With him on the brief was Wheeler & Dick, Attorneys at Law, Salem.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Father appeals from a judgment awarding custody of the parties' minor child to mother. We affirm.

The dispute concerns the custody of a child born July 6, 1987. Mother and father never married. ¹ Paternity was not disputed and, in August 1987, an administrative order establishing paternity was entered in circuit court. ² Mother had physical custody of the child. Father visited the child regularly until a few weeks after her birth. At that time, a dispute arose between the parties, and father threatened mother. ³ Mother then moved with the child from her family's home and concealed the location from father. In October 1987, father obtained an order specifying visitation rights, which mother did not obey. ⁴ Father then initiated proceedings relating to mother's failure to obey the visitation order but was unable to serve mother. Finally, in October 1988, father filed motions to change custody of the child, terminate his child support and hold mother in contempt. He also moved for an order permitting alternative service ⁵ on mother. Alternative service was ordered on October 10, and that service was completed December 9. On December 23, the court entered an order changing the child's custody to father and terminating support after finding mother in default for failure to appear. The court also issued a writ of assistance to Oregon law enforcement officials ordering them to place the child, if found, in father's custody. No judgment was ever entered. At some point, mother moved with the child to California and went into hiding using an assumed name. She lived there for about four years until she was discovered by the police and father. She returned to Oregon in October 1992 and, in February 1993, pled guilty to custodial interference in the second degree. The juvenile court granted temporary custody of the child to Children's Services Division. ⁶ However, mother retained physical custody subject to visitation by father.

In February 1993, mother moved to dismiss the 1988 order granting father custody on the grounds that service on her had been inadequate. ⁷ She also moved to modify the 1988 order to return legal custody of the child to her.

After an evidentiary hearing, the trial court held that the service was inadequate and set aside the 1988 custody order. ⁸ It then found that, although both parents were fit, it was in the best interests of the child to grant mother custody. In the alternative, the court found that even if service of the 1988 order had been adequate, mother was still entitled to custody because she had shown a change in circumstances.

Father's first assignment of error is that the trial court erred in setting aside the prior custody order on the ground that service on mother was inadequate. His second assignment is that the trial court erred in granting custody to mother. The issue of adequate service is important because if the order awarding custody to father is set aside, then the present action is the first time that a court has determined custody and mother need only show that granting custody to her is in the best interests of the child. ORS 109.175. ⁹ If the order is not set aside, then mother must seek to modify it. Father argues that to modify the order, mother must show that a substantial change in circumstances has occurred since entry of the order before the issue of the child's best interests can be reached. We begin with father's first assignment.

We generally review a trial court's decision to set aside a judgment or default order for abuse of discretion. Weaver and Weaver, 119 Or.App. 478, 481, 851 P.2d 629 (1993). However, that discretion is controlled by fixed legal principles. Hiatt v. Congoleum Industries, 279 Or. 569, 575, 569 P.2d 567 (1977). Because adequacy of service is a question of law, Luyet v. Ehrnfelt, 118 Or.App. 635, 637-38, 848 P.2d 654 (1993), we review it for legal error. ORAP 5.45 n. 1.

Father argues that the trial court, in setting aside the order of default, erroneously disregarded the adequacy of the alternative service under ORCP 7D(6)(a). We agree.

The 1988 order authorizing alternative service was based on father's affidavit, which alleged that: mother had avoided service; mother lived at her parents' address; ¹⁰ mother received her mail at her parents' address; mother's public assistance checks were mailed to that address; and mother, mother's father, and mother's mother all provided that address to the Department of Motor Vehicles. The order required personal service on mother's father, mother's mother, and the Oregon Department of Human Resources (DHR). It also required father to notify mother by certified mail, in care of her father. Service on DHR was made by delivery to the Attorney General's office on October 13. Mother's mother was personally served at the parents' address on November 26. Mother's father was personally served at his place of work on December 6. Father attempted to serve mother by certified mail on December 9, but her parents returned it unopened. At some point, mother was aware of father's efforts to serve her through her parents and left the state to avoid service. ¹¹ The parties disagree on whether mother received actual notice.

In seeking to set aside the prior order of custody, mother argued that father had not effected adequate substitute service under ORCP 7 D(2)(b). She did not, however, argue that the 1988 order authorizing alternative service was deficient or that father somehow failed to comply with the requirements of that order. The trial court found that father had not complied with the substitute service provisions of ORCP 7 D(2)(b) but did not identify any deficiency in father's compliance with the order authorizing alternative service. Because father's alternative service of the 1988 motion to change custody was legally sufficient, the trial court erred in setting aside the 1988 default order of custody. ¹²

Because the 1988 order granting father custody is valid, we turn to the issue of the child's custody. We review de novo. ORS 19.125(3).

A party seeking to modify a previous custody order must show that there has been a substantial change of circumstances since the previous order was entered. Greisamer and Greisamer, 276 Or. 397, 400, 555 P.2d 28 (1976). The parties disagree on whether the change in circumstances rule applies to an order taken by default. If it does, they also disagree on whether mother has shown that a substantial change of circumstances occurred. We first address the issue of whether the change of circumstances rule applies.

Father argues that mother must show a substantial change of circumstances under Welby and Welby, 89 Or.App. 412, 749 P.2d 602 (1988). In Welby, the parties had initially agreed that the father should have custody. Neither party appeared in court and that agreement was incorporated into the judgment of dissolution. Instead of giving the child to the father, the mother absconded with the child and kept their whereabouts secret for two years. In Welby, the trial court held that, because the custody issue had never been litigated, a change of circumstances was not required. We disagreed.

Here, the trial court attempted to distinguish Welby as follows:

"In my view, however, Welby is distinguishable. First of all in Welby the parties arrived at a custody decree by stipulation. Thus the law presumes that the decision was in the best interest of the child and that those best interests, and the maintenance of the stability of that best interest situation, can only be overcome by a showing of substantial change in circumstance. Here, however, the earlier decree was by default--a default this court has just decided was improperly granted and has been set aside. Thus there has been no determination in this case either by stipulation or by the court that custody with one parent is in the child's best interest."

Mother basically echos the trial court's position and argues that we should likewise find that Welby is distinguishable from the circumstances here. Alternatively, mother asks us to overrule Welby. We decline to do either.

The fact that this case involves a custody order taken by default does not relieve mother of her burden to show a change of circumstances. The change of circumstances rule applies even if the prior order was entered ex parte. Henrickson v. Henrickson, 225 Or. 398, 402, 358 P.2d 507 (1961).

Mother argues that, in the case of a default order, there is no starting point from which to determine a change of circumstances. To the extent that is a problem, it can be remedied. During the modification proceeding, the parties may introduce evidence to show what the circumstances were at the time the previous order was entered. Stevens and Stevens, 107 Or.App. 137, 140, 810 P.2d 1334, rev den 312 Or. 81, 816 P.2d 611 (1991). That will establish the starting point to determine whether a change of circumstances has occurred.

We also find no basis on which to overrule Welby. The change of circumstances rule is required by a long line of precedent, which we cannot disregard. See, e.g., Greisamer, 276 Or. at 400, 555 P.2d 28. Mother's argument that the change of circumstances rule lacks statutory authority ignores ORS 109.175, ¹³ which applies in this case. That statute provides that "[t]he first time the court determines" custody in a...