Teel-King, Matter of Marriage of

• Decision Date: 06 August 1997
• Docket Number: TEEL-KING,DO-0439-ST
• Citation: 944 P.2d 323,149 Or.App. 426
• Parties: In the Matter of the MARRIAGE OF Sabrina, nka Sabrina Teel-Tedford, Appellant, and Jeffrey Alan King, Respondent. 94-; CA A94980.
• Court: Oregon Court of Appeals

Page 323

944 P.2d 323

149 Or.App. 426

In the Matter of the MARRIAGE OF Sabrina TEEL-KING, nka Sabrina Teel-Tedford, Appellant and Jeffrey Alan King, Respondent.

94-DO-0439-ST; CA A94980.

Court of Appeals of Oregon.

Argued and Submitted May 15, 1997.

Decided Aug. 6, 1997.

Margaret H. Leek Leiberan, Aloha, argued the cause for appellant. With her on the brief were Leiberan & Gazeley, Jonathan R. Duerst and Duerst & Springer.

Steven K. Chappell, Princeville, argued the cause and filed the brief for respondent.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

LEESON, Judge.

Mother appeals a judgment that modifies a dissolution judgment, terminates her sole custody and awards sole custody of the parties' child to father. She contends that the trial court erred in holding that the best interests of the child are served by the change in custody, without first determining that there was a change of circumstances. On de novo review, ORS 19.125(3), we reverse and remand.

In 1995, the trial court entered a judgment dissolving the parties' marriage. That judgment awarded sole legal and physical custody of the child to mother and gave father visitation in the amount of 45 percent of overnight time. The judgment further provided that

"[w]hen the minor child begins kindergarten in September, 1996, the parties shall re-evaluate this visitation arrangement and shall use mediation * * * to resolve any differences concerning [father's] future visitation with the minor child."

Father did not appeal the custody or visitation provisions of the judgment. For the purposes of calculating child support, mother and father have "shared physical custody," because father's visitation is greater than 35 percent. OAR 137-50-450.

In December 1995, mother informed father that she was going to remarry and move from Bend, Oregon, to Bellevue, Washington. She proposed that visitation continue unchanged until September 1996. In January 1996, father filed an ex parte action that was treated as a motion for modification of the judgment, requesting that custody of the child be awarded to him. Mother remarried in February 1996, moved to Bellevue, and reorganized her Bend business affairs so that she could work primarily out of Bellevue. In August 1996, after resolution of a child support and property division appeal filed by father, In Matter of Marriage of Teel-King, 142 Or.App. 595, 922 P.2d 730 (1996), a hearing was held on father's motion to modify. The trial court compared the proposed visitation schedules submitted by mother and father and concluded that father's proposed visitation schedule--which required mother to travel to Bend on a regular basis-- allowed the parents closer-to-equal access to the child and was in the child's best interests. The trial court found that both parents are competent, but awarded sole custody of the child to father, reasoning that it is important to "promote each parent having substantial[ly] equal access and time with [the child]." The trial court granted mother a stay of the judgment, on the condition that mother return with the child to Bend pending the appeal.

Mother argues that the trial court erred in modifying custody "without making any finding that there was a change of circumstances." We understand her argument to mean that the trial court erred by inquiring into the best interests of the child without first determining that there had been a change of circumstances. Father responds that, because the Support Enforcement Division has labeled the parties' visitation arrangement as "shared physical custody," mother and father have joint custody, that in the light of mother's remarriage and move to Bellevue, joint custody is not working, and therefore the trial court properly considered the best interests of the child. See In Matter of Marriage of Swilling, 97 Or.App. 384, 386, 775 P.2d 929 (1989) (there is a change of circumstances that destroys joint custody as a matter of law if one parent believes it is not working). In the alternative, father argues that the change in the visitation schedule necessitated by the child's enrollment in kindergarten is a change of circumstances. Father also argues that mother's move and remarriage constitutes a change of circumstances.

Extensive visitation rights do not create joint custody when a dissolution grants sole physical custody to one parent. Gatti and Gatti, 73 Or.App. 581, 584, 699 P.2d 1151 (1985). In this case, notwithstanding father's liberal visitation rights, the dissolution judgment granted mother sole custody of the parties' child. In order to modify that judgment, father first must show that there has been a substantial change of circumstances. State, Department of Human Resources ex rel Johnson v. Bail, 325 Or. 392, 938 P.2d 209 (1997); Matter of Marriage of Greisamer, 276 Or. 397, 400, 555 P.2d 28 (1976). It is not sufficient merely to show that something has changed. Father must show that the new conditions relate to events relevant to the capacity of either parent properly to take care of the child. Bail, 325 Or. at 392, 938 P.2d 209. The events constituting the change of circumstances must be unanticipated and must have arisen since the last order was entered. Id.; Greisamer, 276 Or. at 400, 555 P.2d 28; Henrickson v. Henrickson, 225 Or. 398, 402-03, 358 P.2d 507 (1961). A showing that the noncustodial parent's circumstances have improved is not enough. Id. at 403, 358 P.2d 507. The court does not reach the best interests of the child if there is no showing of a change of circumstances. ¹ Bail, 325 Or. at 392, 938 P.2d 209; Greisamer, 276 Or. at 401, 555 P.2d 28; Henrickson, 225 Or....