Aguilar v. Badger

769

Argued and submitted January 3, reversed June 17, 2020

Pedro M. AGUILAR,

Petitioner-Appellant,

v.

Alina M. BADGER,

Respondent-Respondent.

Lane County Circuit Court

150813687; A170159

469 P3d 279

In this child custody modification case, father appeals the trial court’s sup-

plemental judgment changing custody of the parties’ child, K, to mother. He

assigns error to the court’s ruling granting mother’s motion to modify custody

and argues, among other things, that the court incorrectly determined that there

had been a change in circumstances sufficient to permit the court to modify cus-

tody. The court relied upon father’s arrest and pending criminal charges for its

change in circumstances finding. Held: The trial court erred in its change in cir-

cumstances determination. The evidence in the record did not support an infer-

ence that father’s arrest or pending criminal charges, by themselves, adversely

affected K’s circumstances or father’s ability to care for K. The Court of Appeals

did not address father’s additional arguments.

Reversed.

Debra E. Velure, Judge.

George W. Kelly argued the cause and filed the brief for

appellant.

No appearance for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and

Mooney, Judge.

MOONEY, J.

Reversed.

770 Aguilar v. Badger

MOONEY, J.

In this child custody modification case, father

appeals the trial court’s supplemental judgment changing

custody of the parties’ child, K, to mother. In his sole assign-

ment of error, father contends that the trial court erred when

it granted mother’s motion to modify custody. He argues

that the court erred in incorrectly determining that there

was a substantial change in circumstances and, further, in

changing custody without analyzing the ORS 107.137 fac-

tors or K’s best interests. For the reasons we explain below,

we agree that the court erred, and we reverse.

Father 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). We review the change-in-circumstances deter-

mination for legal error, upholding the trial court’s factual

findings if supported by any evidence in the record. Botofan-

Miller and Miller, 365 Or 504, 505, 446 P3d 1280 (2019). As

part of that review, we “accept reasonable credibility choices

that the court could have made.” Id. at 505-06. “[I]f the trial

court failed to articulate its factual findings on a particular

issue, we assume that the trial court decided the facts in a

manner consistent with its ultimate conclusions, as long as

there is evidence in the record, and inferences that reason-

ably may be drawn from that evidence, that would support

its conclusion[s].” Id. at 506. The following facts are relevant

to our review and we state them consistently with our stan-

dard of review.

K was born in 2007. Mother and father were not

married; paternity was established by father’s acknowledg-

ment on K’s birth certificate. Father filed a petition for cus-

tody in June 2008. Mother accepted service of the petition

and submitted a signed waiver of further appearance, con-

senting to entry of judgment as requested by father. There

was, therefore, no trial, and judgment was entered accord-

ing to the terms requested in father’s petition. According

to the judgment thus entered in July 2008, at that time, K

lived with father and father’s family in Oakridge. Mother

lived in Salem.

Cite as 304 Or App 769 (2020) 771

In 2018, mother filed a motion seeking modification

of the existing custody and parenting-time judgment so that

K would come live with her and she would be the custodial

parent. In her motion, mother alleged that a significant

change of circumstances had occurred since the original

judgment was entered that warranted changing custody to

her—specifically that K “does NOT reside with [father] and

should be with a parent.” (Uppercase in original.) She also

alleged that a change in custody would be in K’s best inter-

est because (1) K “expressed interest in wanting to live with

mother rather than grandmother,” (2) K would “have more

access to sports and other school activities in Salem,” and

(3) “[m]other does not feel it’s in [K]’s best interests to live

with [father] due to [father’s] extensive criminal history

including assault charges.”

Both parties, who represented themselves, presented

evidence and testified at the custody-modification hearing,

which was held in February 2019. Mother’s evidence con-

sisted of her own testimony, during which she played an

audio recording of a conversation she had previously had

with father,1 a copy of father’s recent indictment for assault

constituting domestic violence, ORS 163.175, and a copy of

his security release agreement. Father’s evidence consisted

of his own testimony. The court advised him not to discuss

his pending criminal charge, and he did not do so. He did

not offer any exhibits.

After the parties presented their cases, the trial

court announced its decision on the record, stating, in part:

1

The circumstances under which the recording was made are not entirely

clear, although it appears that mother made it on her cell phone when father

called her the day he was served with the modification pleading. She told the trial

court that the recording included father “admitting that [K] had not been living

with him for about five and a half years.” There were no objections to playing

the recording for the court under ORS 165.540, ORS 41.910, or otherwise. We

note that, on the recording, father said, among other things, “I told [K] that if

he wanted to go live with you, that’s fine, but if he wanted to move in with me at

my new house, he could.” There are other conflicting statements on the recording

about where K had been living, and there was no testimony as to where he was

living at the time of the modification hearing. We note also that the trial court did

not refer to the content of the recording in its findings or ruling. In fact, the court

made no express findings with respect to whether K had been, or was, living with

father.

772 Aguilar v. Badger

“[T]he circumstances that have arisen here in our legal

system have made—I make the findings that there’s been

a substantial change in circumstances justifying a change

in custody in this situation.

“And so I make that finding that that is specifically rele-

vant to [father’s] capacity to take care of this child properly.

“And so once I’ve made that determination, then I

review the current parenting schedule, as much as I can,

for the best interests of the child, who is clearly flourishing

where he is in Oakridge.

“But from the change in custody standpoint, and when

you have parties that live as far apart as you do, with a

child in school, where essentially my parenting time order

is—I’ll call it a flip-flop, where the majority of the time

is going to be spent with [mother], who will have custody

and enroll him in school, making sure that [father] has all

rights to receive all that information.”2

The trial court entered a supplemental judgment awarding

mother sole custody of K and awarding parenting time to

father.

Father appeals that judgment, assigning error to

the court’s “change-in-circumstances” and “best interests”

rulings. He argues that (1) there was not a change in cir-

cumstances sufficient to modify custody and (2) even if there

was, the court did not conduct the proper statutory analysis

to determine whether a change in custody to mother was

in K’s best interest. Further, father argues that the court

improperly relied on his pending criminal charge, which,

without more, provides an insufficient basis to modify cus-

tody. ORS 107.135. He also argues that the court erred

in failing to address the custody factors required by ORS

107.137 in reaching its best interests determination.

A parent who seeks to change custody must demon-

strate that

“ ‘(1) after the original judgment or the last order

affecting custody, circumstances relevant to the capacity

of either the moving party or the legal custodian to take

care of the child properly have changed, and (2) considering

2

The court did not make any additional findings relevant to our review.

Cite as 304 Or App 769 (2020) 773

the asserted change of circumstances in the context of all

relevant evidence, it would be in the child’s best interests

to change custody from the legal custodian to the moving

party.’ ”

Botofan-Miller, 365 Or at 520 (quoting Boldt and Boldt, 344

Or 1, 9, 176 P3d 388, cert den, 555 US 814 (2008)). The change

in circumstances must be “material” to justify a change in

custody, and a “material” change is “one that is adverse to

the child’s welfare.” Id. To qualify as a change in circum-

stances sufficient to allow the court to revisit the question

of custody, the change must have “ ‘injuriously affected the

child’ or affected the custodial parent’s ‘ability or inclination

to care for the child in the best possible manner.’ ” Id. at

520-21 (quoting Boldt, 344 Or at 9). In the absence of such a

change in circumstances, the trial court may not proceed to

the second step of the analysis. Boldt, 344 Or at 9.

The parent seeking a change in custody bears the

burden of demonstrating that there has been a substantial

change in circumstances since the controlling judgment.

State ex rel Johnson v. Bail, 325 Or 392, 397, 938 P2d 209

(1997). The Supreme Court has explained that

“[t]he rationale for the change-in-circumstances rule is

that, unless the parent who seeks a change in custody

establishes that the facts that formed the basis for the

prior custody determination have changed materially by

the time of the modification hearing, the prior adjudication

is preclusive with respect to the issue of the best interests

of the child under the extant facts.”

Id. at 398. Thus, unless the moving parent demonstrates

that the child’s circumstances have materially changed

from the preclusive judgment, a court cannot modify that

judgment. Id.

We understand from the trial court’s reference to

“circumstances that have arisen here in our legal system”

that it determined there was a change of circumstances

based on father’s arrest and pending charges. We con-

clude that the court’s findings do not support its change-of-

circumstances determination. Although “we accept reason-

able inferences and reasonable credibility choices that the

trial court could have made” to sustain a trial court’s ruling,

774 Aguilar v. Badger

the court’s reliance on the pending criminal charges against

father was not supported by any evidence that the charges

affected K’s circumstances or father’s ability to care for K,

or that would allow an inference that K’s circumstances had

materially changed. Botofan-Miller, 365 Or at 505-06. And,

even if some relevant change could be inferred, there was

no evidence to suggest that the conduct allegedly underly-

ing the criminal charges was accurate or had materially

changed K’s circumstances since the 2008 custody deter-

mination. Moreover, even if the charges were ultimately

shown to be accurate, “isolated incidents of misconduct”

cannot support a change-in-circumstances determination

when there is no evidence that the incidents have “had or

threaten[ ] to have a discernible adverse effect” on a child.

Collins and Collins, 183 Or App 354, 358, 51 P3d 691 (2002)

(internal quotation marks omitted). Neither party testified

about the effect of the arrest on K, if any, and neither the

charging instrument nor the security-release agreement

creates an inference that father’s arrest affected K. Because

there was no evidence to support the conclusion that father’s

arrest or the pending charges were related to K’s circum-

stances, and because the court made no other findings

with respect to the alleged change in circumstances, the

record was not sufficient to support the court’s change-in-

circumstances ruling.3 Because the trial court erred in its

change-in-circumstances determination, we need not, and

do not, address father’s argument regarding the court’s best

interests determination. Boldt, 344 Or at 9.

Reversed.

3

(1) Although mother alleged that the change in circumstances was that

K “does not reside with father,” the trial court made no findings with respect to

where K had been living. However, even if the court implicitly found that K had

not been living with father for some period of time, that fact, standing alone, does

not provide a basis for concluding that any change in residence was “material.”

In other words, there is no basis for finding that any change in residence was

“adverse to K’s welfare.” (2) We do not suggest that certain criminal conduct (e.g.,

domestic violence committed against or in front of the child) or the implications of

a parent’s arrest (e.g., incarceration, conviction) could not warrant a finding of a

change in circumstances sufficient to permit the court to revisit custody; we hold

only that proof of arrest is not, by itself, sufficient to find such a change when the

parent is not in custody.