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In re Marriage of Botofan-Miller

Court of Appeals of Oregon

November 1, 2017

In the Matter of the Marriage of Loredana Elizabeth BOTOFAN-MILLER, Petitioner-Appellant, and Brett Robert MILLER, Respondent-Respondent.

          Argued and Submitted March 6, 2017

         Washington County Circuit Court C104720DRA; A161266 Kirsten E. Thompson, Judge.

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

          David N. Hobson, Jr., argued the cause for respondent. With him on the brief was Hobson and Associates, LLC.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Mother appeals from a supplemental judgment changing the custody of a minor child, S, to father and a second supplemental judgment awarding father attorney fees. On appeal, mother assigns error to the trial court's conclusion that a change of circumstances sufficient to justify a change of custody had occurred. Specifically, mother argues that, even assuming that the trial court's findings were factually correct, none of its six bases for determining a change of circumstances occurred were legally sufficient, individually or taken together, to justify changing custody to father. Mother also assigns error to the trial court's award of attorney fees to father. Held: The trial court erred in changing custody to father. Viewing the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition, none of the six circumstances on which the trial court relied-either individually or taken together-reflected a change of circumstances legally sufficient to justify a change of custody. Further, because the trial court erred in changing custody, it also erred in awarding attorney fees to father.

         Supplemental judgment awarding custody of S to father reversed; supplemental judgment awarding attorney fees to father reversed.

         [288 Or. 675] SHORR, J.

         Mother appeals from a supplemental judgment changing the custody of a minor child to father and a second supplemental judgment awarding father attorney fees. As part of father's motion to show cause why he should not be granted sole custody, father contended that a change in circumstances since mother and father's original dissolution proceeding had occurred, justifying a change in custody of mother and father's child, S. Specifically, father alleged that mother has an anxiously attached parenting style that causes her difficulty in making medical and educational decisions for S and makes it difficult for her to get S to appointments and school on time. The trial court agreed with father. It listed six considerations that it concluded constituted changes of circumstance justifying a change in custody, decided that it was in S's best interest to change sole legal custody from mother to father, and awarded attorney fees to father.

         On appeal, mother advances three assignments of error. First, she assigns error to the trial court's conclusion that a change of circumstances has occurred. Second, she assigns error to the trial court's decision that it was in S's best interest to change custody from mother to father. And, third, she assigns error to the trial court's decision to award attorney fees to father. Because we agree with mother that the trial court's findings and the evidence in the record supporting those findings are not legally sufficient to constitute a change of circumstances justifying a change in custody, we address only mother's first and third assignments of error. Accordingly, we reverse the judgment awarding custody to father and reverse the judgment awarding attorney fees to father.

         Mother asks us to exercise our discretion to review the record de novo. We exercise our discretion to review de novo only in exceptional cases, and decline to do so here. ORAP 5.40(8). Instead, we are bound by the trial court's factual findings provided that they are supported by any evidence, and we review legal conclusions for errors of law. Sconce and Sweet. 249 Or.App. 152, 153, 274 P.3d 303, rev den, 352 Or. 341 (2012). Under that standard, "we view [288 Or. 676] 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." Ibarra and Conn. 261 Or.App. 598, 599, 323 P.3d 539 (2014) (internal quotation marks omitted). We state the following relevant facts consistently with that standard.

         The parties married in April 2009, separated in October 2010, and divorced in July 2011. During their separation and the pendency of their divorce, S lived with mother. Mother was initially granted sole legal custody of S, subject to father receiving parenting time as ordered by the court.

         Prior to the original grant of custody, mother was having difficulty making medical decisions for S, including deciding if and when S should receive vaccinations. In fact, in a limited judgment entered prior to the judgment of dissolution, the trial court specifically found that "[t]here ha[d] been a significant gap in the health care of [S]." Taking mother's difficulties related to providing ...


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