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In re Marriage of Epler

Court of Appeals of Oregon

September 11, 2013

In the Matter of the Marriage of JOHN PAUL EPLER, Petitioner-Respondent, and ANDREA MICHELLE EPLER, nka, Andrea Michelle Walker, Respondent-Appellant, and KIMBERLEY SUE GRAUNITZ, Third Party Respondent-Respondent.

Argued and submitted on January 3, 2013

Resubmitted en banc May 7, 2013.

Marion County Circuit Court 04C33678, Dennis J. Graves, Judge.

Richard F. Alway argued the cause and filed the brief for appellant.

No appearance for respondent John Paul Epler.

No appearance for respondent Kimberley Sue Graunitz.

Before Haselton, Chief Judge, and Armstrong, Wollheim, Schuman, Ortega, Sercombe, Duncan, Nakamoto, Hadlock, and Egan, Judges.

En Banc

ARMSTRONG, J.

Mother appeals a judgment denying her motion to modify custody, parenting time, and child support for her daughter. Mother contends that the trial court erred under ORS 107.135, ORS 109.119, and the federal constitution when it refused to modify a 2005 marital dissolution judgment that awarded sole legal and physical custody of daughter to grandmother. In the alternative, mother contends that the trial court erred when it refused to modify the parenting plan for daughter and to adjust the child-support obligations of the parties. We conclude that the trial court did not err when it refused to modify custody, but we are unable to determine whether the trial court abused its discretion by refusing to modify the parenting plan or child support. Accordingly, we affirm the court's custody decision but remand for the court to reconsider its decision on the parenting plan and child support.

Most of the relevant facts are undisputed.[1] Daughter is nine years old and has lived with grandmother for daughter's entire life. At daughter's birth, mother and father were married and living with grandmother in Portland. When daughter was approximately six months old, mother and father separated; father left Oregon to fight wildfires while mother continued living with daughter and grandmother. At some point thereafter, when daughter was between six and 12 months old, mother moved and left daughter in grandmother's care. Daughter has remained in grandmother's sole, uninterrupted care since then.

In December 2004, just after daughter's first birthday, mother moved to Virginia to be closer to mother's family. The day before mother left, grandmother arranged to meet with mother and father in order for them to sign documents providing for the dissolution of mother's and father's marriage and establishing custody of daughter. The parties met briefly, and mother and father signed a marital settlement agreement and a stipulated general judgment dissolving their marriage. The settlement agreement contained the following provisions regarding custody of daughter:

"Husband and Wife acknowledge that [Grandmother] has been the primary custodian of [daughter] since [daughter's] birth in 2003. Through this agreement, it is the intention of the parties to formalize Grandmother's custody, and provide for both Husband and Wife to pay child support to Grandmother for [daughter's] benefit.
"* * * * *
"Husband and Wife desire that [Grandmother], be awarded sole legal and physical custody of [daughter], subject to the joint right of both Husband and Wife to equally share the parenting time * * *, and with the understanding that Husband's parenting time will include Grandmother."

The agreement also noted that, as primary custodian, grandmother had "exclusive discretion in day-to-day parenting, routine medical and dental matters, [and] interaction with school authorities" and "full emergency authority to seek aid for the child under whatever circumstances [grandmother] deems appropriate."

The stipulated judgment, in turn, incorporated the marital settlement agreement in its entirety. It further provided that

"Grandmother * * * is awarded sole legal and physical custody of [daughter], subject to the joint right of both Husband and Wife to * * * parenting time with [daughter] * * *, and with the understanding that Husband's parenting time will include Grandmother."

The judgment was entered on March 9, 2005, three months after mother had moved to Virginia. Daughter was one year old.

Mother first filed a motion under ORS 107.135 to modify the stipulated dissolution judgment in September 2006.[2] She alleged that, since her move to Virginia, she had made changes to stabilize her life and that those changes constituted a change of circumstances sufficient to justify a change in custody. See, e.g., Bradburry and Bradburry, 237 Or.App. 179, 186, 238 P.3d 431 (2010) (describing two-step analysis applicable to motion to change custody; first step requires party seeking change to establish a change in circumstances related to parental capacity). In an affidavit opposing modification, father emphasized that mother had been gainfully employed when she voluntarily left Oregon; that, at that time, she had agreed to grant grandmother full legal custody of daughter; and that she had returned to Oregon to see daughter only one time since 2004. Father further asserted that "[a]s petitioner in this case I do not want any changes made to the custody agreement we set forward in December [2004]. I believe this is for [daughter's] best interest." Father later amended his response: "If any change needs to be made of custody of [daughter] then I * * * would like full custody of [her]. She has a home here, friends here and close family." Grandmother also opposed modification. Ultimately, in September 2007 mother withdrew her motion to modify the dissolution judgment.

Mother filed a second motion to modify the stipulated dissolution judgment in May 2008, citing as authority both ORS 107.135 and ORS 109.119.[3] Mother again alleged that, since moving to Virginia, she had made changes to stabilize her life. However, in a departure from her initial motion, she did not allege that those changes constituted a sufficient change in circumstances to justify modification of custody. Instead, relying on ORS 109.119 and the federal constitution, mother alleged that she was entitled to priority over grandmother as to custody of daughter without regard to the changes that mother had made in her life. Mother's motion sought (1) an award of sole legal custody of daughter to mother; (2) a new parenting plan that reflected the longdistance nature of mother's relationship with daughter, "with or without a change of custody"; and (3) a modification of the child-support obligations.

Father again opposed modification, at least as to custody, because mother had "failed to spend time with [daughter] and bond with [daughter]." During the modification proceedings, he indicated that he felt it to be in daughter's "best interests to remain here in Oregon, based on the fact that the--primarily the family that she has known over the years has been here in Oregon, and that she is a--in an environment that is stable for her, and is in her best interests." Grandmother also opposed modification on several grounds relating to the proposed change in custody. However, she did not oppose modification of the parenting plan or child support.

A modification hearing was held and, noting mother's failure to allege facts to establish the existence of a substantial change in circumstances, as required for a modification under ORS 107.135, grandmother moved under ORCP 21(a)(8) to dismiss mother's motion to modify the stipulated dissolution judgment. Mother argued in response that, in addition to ORS 107.135--which requires a substantial change in circumstances--her motion was brought under in ORS 109.119--which does not. The trial court disagreed with mother, concluding that ORS 109.119 did not apply to the modification proceeding and that a substantial change in circumstances had to be established under ORS 107.135 before the court could modify the prior custody decision. However, the court allowed mother to amend her motion to add an allegation of changed circumstances.

Mother testified at the modification hearing that, at the time of the stipulated dissolution judgment, she had had mental and emotional problems, was unemployed, and had been drinking heavily. The evidence showed that, after she moved to Virginia, mother had earned a college degree, completed parenting courses, and secured stable employment as a corrections officer. Further, mother testified that she had recently undergone psychological testing that showed that she did not suffer from any impairment that would affect her ability to care for daughter. She also testified that she would occasionally drink socially with friends but no longer abused alcohol. Aside from her testimony, mother did not present any evidence of the psychological examination or of her alcohol use, although she did provide the psychologist's report to grandmother's attorney.

Also admitted into evidence was a two-year-old report from a custody evaluator that recommended that mother and grandmother have joint custody of daughter, with grandmother retaining primary, residential custody. The report concluded that daughter, who was five years old when the report was prepared, would likely suffer "significant anxiety" were she to relocate to Virginia but that contact between mother and daughter should be encouraged. Specifically, the report "suggested that child support be negotiated so that [mother] could come to Oregon every six weeks for at least three full days" to help "solidify" mother's and daughter's relationship. It also reflected the custody evaluator's belief that mother could gain primary custody of daughter after a period of years if mother "is conscientious in the time that she spends with [daughter] and puts effort into maintaining that relationship by visiting her in Oregon or relocating." Finally, the report noted that, were mother to relocate to Oregon, a parenting plan could be fashioned to shift primary, residential custody of daughter to mother "within a year's time."

At the hearing, the custody evaluator testified that her contact with the parties in the two years following her report was limited to a single visit with mother and daughter. Accordingly, much of the evaluator's testimony about the adaptability of children and her concerns about shifting daughter to mother's care was based on general information. Nevertheless, the evaluator testified that the plan proposed in her prior report "could work now also, " with regularity of parenting time. She testified that children who are seven years old--as daughter was at the time of the hearing--would have less difficulty with long-distance travel than children who are five years old--the age of daughter at the time of the report. Accordingly, she believed that daughter would be able to visit mother in Virginia during the summer for periods up to two weeks, assuming that daughter had had one or two shorter visits to Virginia in the interim. Finally, she acknowledged that a two-year transition period remained appropriate.

In their closing statements, mother and grandmother argued extensively over whether there had been a substantial change in mother's circumstances justifying a custody modification. However, they agreed that the parenting plan should be modified. Asked whether grandmother opposed that modification, her counsel replied, "No, Your Honor. I think it would be beneficial for all involved to have something that's going to be updat[ed], hopefully, and that may be actually followed through." Although they differed in details, mother and grandmother both advanced similar parenting plans based on the custody evaluator's report. Each agreed that mother should begin by visiting daughter in Oregon for three days every six weeks and that, after a number of successful visits in Oregon, a transition to visits in Virginia would be appropriate.

The court ultimately denied mother's motion to modify the stipulated dissolution judgment. In a letter opinion that focused entirely on custody, the court concluded that mother had failed to prove that a substantial change in circumstances had occurred between entry of the dissolution judgment and the modification hearing. The court also concluded that it would not be in daughter's best interests to move from Oregon to Virginia. The court did not address mother's argument that she was entitled to a preferential custodial presumption under the federal constitution, independently of ORS 109.119, nor did it discuss its rejection of mother's motion to modify the parenting plan and child support. The court subsequently awarded grandmother costs and attorney fees in a supplemental judgment.

Mother appeals, contending that the trial court erred in denying her modification motion. Specifically, mother challenges the court's custody determination and its failure to modify the parenting plan. We turn first to custody. Mother contends that the trial court erred under ORS 107.135, ORS 109.119, and the Fourteenth Amendment to the federal constitution when it denied her custody of daughter. Before we address those contentions, which implicate the authority of the trial court to determine custody, a review of the statutory framework for custody decisions is helpful.

As noted, the court first determined custody of daughter in its stipulated dissolution judgment. To the extent that that judgment "provid[ed] for the legal custody, physical custody, parenting time[, and] visitation" of daughter, it constituted a "child custody determination" under ORS 109.741, which provides the "exclusive jurisdictional basis for making a child custody determination by a court of this state." See ORS 109.704(3) (defining "child custody determination"). The legal effect of that determination is clear:

"A child custody determination made by a court of this state that has jurisdiction under ORS 109.701 to 109.834 binds all persons who have been served in accordance with the laws of this state or notified in accordance with ORS 109.724 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified."

ORS 109.717 (emphasis added). Once made, the court retains exclusive, continuing jurisdiction to modify the custody determination--until jurisdiction expires on the occurrence of circumstances not present here. ORS 109.744.

Of course, modification of a child-custody determination requires modification of the judgment in which it is embodied. Where, as here, the child-custody determination was made in a dissolution judgment, see ORS 107.105(1)(a) (providing that dissolution judgment may provide for custody), modification is governed by ORS 107.135, which provides, as relevant:

"(1) The court may at any time after a judgment of annulment or dissolution of marriage * * *, upon the motion of either party * * *:
"(a) Set aside, alter or modify any portion of the judgment that provides * * * for the custody, parenting time, visitation, support and welfare of the minor children * * *."

A predicate to modification under that statute is a showing that a substantial change in circumstances relevant to the capacity of the parties to care for the child has occurred since the last custody order or judgment. E.g., Bradburry, 237 Or.App. at 186. If a change in circumstances is shown, the court is to make a custody award that is in the best ...


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