Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Marriage of Schwartz

Court of Appeals of Oregon

April 3, 2019

In the Matter of the Marriage of Ariana Templeton SCHWARTZ, Petitioner-Respondent, and Cyril Jean-Dominique BATTINI, Respondent-Appellant.

          Argued and Submitted May 30, 2017

          Lane County Circuit Court 151321710; Suzanne B. Chanti, Judge.

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

          Kimberly A. Quach argued the cause for respondent. Also on the brief was Quach Family Law, P.C.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge.[*]

         Case Summary:

         Father appeals a supplemental judgment modifying his parenting time and awarding mother attorney fees. Father argues that the trial judge erred in hearing mother's motion after having previously recused herself. Father further contends that reversal of the judgment at issue requires reversal of the trial court's associated attorney fee award. Held: The trial judge abused her discretion in hearing and deciding mother's motion to modify after having previously recused herself. The Court of Appeals therefore reversed the supplemental judgment, including the award of attorney fees, and remanded.

         Reversed and remanded.

         [296 Or.App. 871]DEHOOG, P.J.

         Father appeals a supplemental judgment modifying his parenting time and awarding mother attorney fees. Father argues that the trial court erred in three ways: first, in denying his motion to continue the modification trial; second, in hearing mother's motion after having previously recused itself; and, third, in modifying father's parenting time in the manner that it did. Father further contends that, if we ultimately reverse the judgment at issue, we must also reverse the trial court's associated attorney fee award. Writing only to address father's second assignment of error, we conclude that the trial judge abused her discretion in hearing and deciding mother's motion to modify after having previously recused herself. We therefore reverse the supplemental judgment, including the award of attorney fees, and remand.[1]

         The facts relevant to father's second assignment of error are procedural and undisputed. Mother and father married in 2010 and have one joint child, L. The parties separated in 2013, and, following dissolution proceedings in 2015, the trial court entered a judgment dissolving the parties' marriage and establishing custody and parenting time as to L. Through multiple motions to modify and related appeals, the court's various custody and parenting time rulings in this case have been the subject of ongoing proceedings since the parties separated in 2013;[2] those proceedings include a motion to modify parenting time that father filed after taking the present appeal.

         Father's appeal arises from a June 15, 2016, hearing on a motion to modify parenting time filed by mother in January 2016. However, because, on March 7, 2016, after ruling on mother's separate but related immediate danger motion, the trial judge made certain statements that bear on this appeal, we include those statements in our discussion. [296 Or.App. 872] Specifically, at the conclusion of the March 7 hearing, upon recusing herself, sua sponte, from all further proceedings in the case, the trial judge gave the following explanation:

"I'm going to recuse myself from hearing the modification. I don't believe anything Father says. He is not credible to me. He lied under oath. He has demonstrated a disregard of Court orders.
* * * *
"I'm basically disregarding [father's testimony] because he has absolutely no credibility with me at this point, which is why you folks need to get someone else to hear this modification because it would be inappropriate for me to hear it, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.