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In re Marriage of Stoecklin & Crippen

Court of Appeals of Oregon

October 1, 2014

In the Matter of the Marriage of CURTIS STOECKLIN, Petitioner-Respondent, and AUDREY LYNN CRIPPEN, fka Audrey Lynn Stoecklin, Respondent-Appellant

Argued and Submitted: July 24, 2014.

Washington County Circuit Court. C114813DRC. Keith R. Raines, Judge.

Philip F. Schuster, II, argued the cause for appellant. On the briefs were Loren M. Thompson and McGuire Thompson, LLC.

Mark Johnson Roberts argued the cause for respondent. With him on the brief was Gevurtz, Menashe, Larson & Howe, P.C.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

OPINION

[265 Or.App. 663] ORTEGA, P. J.

Mother and father were separated but still married when their son was born, and mother gave the child her own original last name, C. After entry of a judgment that dissolved their marriage and awarded legal custody to mother, father petitioned the trial court to change the child's last name to his own last name, S. The trial court ordered the requested change by a supplemental judgment, which mother now appeals, asserting that the name change is not in the child's best interest because mother is the custodial parent and father's abusive conduct led to the marital dissolution. We conclude that the trial court's findings and the evidence do not support its determination that the name change was in the child's best interests and, accordingly, we reverse.

We are bound by the trial court's factual findings if there is any evidence to support them. Kirkpatrick and Kirkpatrick,

Page 165

248 Or.App. 539, 541 n 1, 273 P.3d 361 (2012). We, accordingly, state the facts consistently with the trial court's express and implied findings, supplemented with uncontroverted information from the record. Id. at 541.

Mother and father were married in June 2011, and mother became pregnant immediately after the wedding. As expectant parents often do, mother and father contemplated various first and middle names for the child, with the assumption that the child would be given their married name, S. During mother's pregnancy, father began to secretly record and monitor her activities from his mobile phone, and then uploaded those audio and video recordings to his work computer. The police were called to the couple's home several times due to father's abusive behavior; eventually, father was convicted of fourth-degree felony assault, ORS 163.160(3), based on his assault of mother when she was six-months pregnant.

Mother sought a Family Abuse Prevention Act (FAPA) restraining order against father, ORS 107.700 - 107.735, and a hearing was held in February 2012. Father questioned the child's paternity at the hearing. The child was born a week-and-a-half later, in March 2012, and, when mother submitted the form for the child's birth certificate, [265 Or.App. 664] she selected C as the child's last name. Father was not present at the birth, and he waited three weeks before his attorney contacted mother's attorney to ask about the birth of his child. The FAPA hearing concluded in May 2012, and mother was given temporary custody of the child. The marital dissolution trial was held in August, and mother was awarded legal custody of the child and returned to her original name of C; the child's last name was not raised as an issue.

In October 2012, seven months after the child's birth, father petitioned to have the court change the child's last name to S. The supplemental judgment granting father's petition incorporated the following oral findings:

" The first and foremost factor that I'm looking at here is that there was an agreement that the child's name was going to be [S] before the child was born. And [m]other changed that because she was angry. She felt shocked, hurt and discouraged when she misread [f]ather's statement about how he wanted for once and forever put to rest the issue of paternity.
" * * * * *
" But the reality is that the name was chosen not out of love and joy, but out of hurt and anger and shock. And so we end up with the child not bearing the name that was originally planned for the child to have. And so--and the child is young enough [that the] child has not really used a last name effectively ...

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