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In re Ibarra

Court of Appeals of Oregon

March 19, 2014

In the Matter of ALAZNE ANDONE IBARRA, fka Alazne Andone Conn, Petitioner-Appellant, and WESLEY THOMAS CONN, Respondent-Respondent

Argued and Submitted: June 4, 2013.

Jackson County Circuit Court 101653Z9. Ronald D. Grensky, Judge.

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

Laura Graser argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and Hadlock, Judge, and Norby, Judge pro tempore.

OPINION

Page 540

[261 Or.App. 599] ORTEGA, P. J.

Mother appeals a supplemental judgment that changed custody of the parties' daughter from mother to father. Mother contends that the trial court erred, under ORS 107.135, in finding that there had been a substantial change in circumstances. We conclude that the record is insufficient for us to review whether the trial court erred when it determined that there had been a substantial change in circumstances supporting the change in custody. Accordingly, we affirm.

We review the trial court's factual findings for any evidence and its legal conclusions for errors of law. Sconce and Sweet, 249 Or.App. 152, 153, 274 P.3d 303, rev den, 352 Ore. 341, 288 P.3d 275 (2012). As in other equitable proceedings, " we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013) (stating our standard of review in juvenile dependency cases).

We state the facts consistently with that standard. The original judgment of dissolution of the parties' marriage, entered in Washington in 2009, provided for them to share joint custody of their then eight-year-old daughter, R. C. That same year, mother moved to Medford, Oregon, and registered the judgment there. R. C. was placed in a White City school, but sometime during the 2009-2010 school year, she switched to an Eagle Point school. In August 2010, the parties stipulated that mother would have sole custody of R. C. and father would have 120 days of parenting time; a judgment so providing was entered in December 2010. That month, father moved to Arizona, where he currently lives with his new wife and her three children from a previous marriage, whom father adopted. In June 2011, mother moved with her boyfriend, his daughter, and her two daughters [1] to Boise, Idaho. R. C. registered to start school there in August. She spent a few weeks in Idaho before she traveled [261 Or.App. 600] to Arizona to be with father for the remainder of the summer. While in Arizona, R. C. became adamant about her desire to live with father and, consequently, in August, father filed a motion seeking sole custody of her.

At a hearing in September 2011, the court heard from mother and father. Both parties testified about times when R. C. did not want

Page 541

to go to the other parent's home. Father testified that R. C. had expressed a desire to live with him for about two years, but that the intensity of those expressions had increased over time. He explained that when he tried to put R. C. on the plane to return to Idaho the month before the hearing, she had become hysterical and the airline had almost required her to leave the plane; eventually, father calmed her and she returned to Idaho.

In addition to hearing from mother and father, the court also reviewed an affidavit written by R. C. explaining that she wanted to live with father. With the agreement of both parties, the judge also spoke with R. C. in chambers with both parties' attorneys present. The parties agreed that the conversation would not be recorded and, consequently, it is not part of the record ...


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