Brown v. Collette

No. 714 August 6, 2025 515

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Hannah BROWN,

Petitioner-Respondent,

v.

Sean COLLETTE,

Respondent-Appellant.

Deschutes County Circuit Court

22DR07194; A182715

Michelle A. McIver, Judge.

Argued and submitted December 19, 2024.

Tyler J. Moore argued the cause for appellant. Also on

the brief was Law Office of Tyler J. Moore, LLC.

Hannah Brown argued the cause and filed the brief pro

se.

Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,

Judge.

EGAN, J.

Reversed and remanded.

516 Brown v. Collette

EGAN, J.

In this domestic relations case, father argues that

the trial court erred when it modified the parenting plan. In

three assignments of error, he argues that the court erred

by finding that father suffered from untreated alcoholism

and depression without sufficient medical evidence, by not

properly applying the “best interest of the child” standard

to the modification, and by “granting [mother] the ability

to modify parenting time without demonstrating the modi-

fication was in the best interests of the child.” We disagree

as to the first two issues, but we agree that the court erred

in allowing mother to determine whether father will receive

supervised or unsupervised visits. Accordingly, we reverse

and remand.

As an initial matter, father asks us to review the

record de novo because the finding that father suffers from

untreated alcoholism and depression is not supported by the

record and that finding was the primary basis for the mod-

ification. We decline to exercise our discretion to review the

record de novo because we conclude this is not an extraor-

dinary case that warrants it and because there would be no

need for de novo review anyway if the finding was actually

unsupported. See ORAP 5.40(8)(c) (providing that we will

exercise our discretion to review de novo “only in exceptional

cases”). Absent de novo review, we are bound by the trial

court’s finding of fact if there is evidence in the record to

support them. Sjomeling v. Lasser, 251 Or App 172, 173, 285

P3d 1116, rev den, 353 Or 103 (2012).

Mother and father have one child together, born in

2020. In August 2022, after a domestic relations trial, the

court entered a general judgment of custody and parenting

time. Mother was awarded sole legal custody. With respect to

parenting time, the court granted father unsupervised visits

twice a week for three hours each. The order provides that

neither parent “is to use or be under the influence of alcohol

or controlled substances while [the child] is in their care.”

In 2023, father petitioned the court to modify the

parenting plan so that the visitation times would align bet-

ter with his work schedule. The court held a show cause

Nonprecedential Memo Op: 342 Or App 515 (2025) 517

hearing on the issue of modification of the parenting plan.

Father, appearing pro se, testified that he had since lost his

job and was unemployed. Father conceded that his alcohol

use was a “concern” but stated that he never drinks around

the child because “[i]t’s one of the only times [he’s] actu-

ally happy.” Father testified that he also uses marijuana.

On cross-examination, father testified that he had not seen

the child in seven months because mother was interfering

with his visits. The court asked father about offensive text

messages that he offered as evidence of mother interfering

with his visitation rights. Regarding the language of the

text messages, father responded that he sent those texts

because the child was being withheld from him. Father did

not clearly articulate what modification he was seeking to

the parenting plan but expressed a desire for unsupervised

visits that work better with his schedule.

Mother testified that the issues with visitations were

due to father’s failure to show up at the agreed upon time.

Mother described “multiple times” where she drove from

Redmond to Bend to drop the child off for a visit, but father

would not call, text, or show up at all. Mother acknowledged

that father had legitimate excuses for some of those missed

visits, including that his grandfather was very sick, but

she testified that other times father said afterwards that

“he didn’t feel good, * * * that he was depressed,” and she

attributed those times to father drinking too much. Mother

testified that father’s offensive text messages also indicated

to her that he was sending them while under the influence

of alcohol. Mother testified that during their relationship in

2020, father would drink a fifth of alcohol a day and that his

drinking led to a “very volatile” situation. Mother requested

that the parenting plan be changed to supervised visits once

a week and that father be required to submit to blood tests.

The court ordered a modification. The court

explained that it was “overwhelmed with concern with the

untreated alcoholism and what appears to be mental health”

issues of father. The court credited mother’s testimony that

father’s offensive text messages and failure to show up to

visits likely coincided with father being under the influ-

ence. The court explained it would order father to complete

518 Brown v. Collette

a treatment program to address his alcohol use. Ultimately,

the court modified the parenting plan and ordered two

“phases” of visitation. The court modified the parenting

plans as follows:

“Phase 1: Father shall have supervised visits on

Saturdays from 8:30am-2:00pm. Supervision shall be pro-

vided by [father’s mother] or [father’s father], or another

reliable adult chosen by [m]other in the event neither [of

father’s parents] can provide supervision.

“Father shall submit a release of information for the

treatment provider to release information to [mother]

only regarding UAs and proof of successful completion of

treatment.

“Phase 2: Upon successful completion of treatment, the

parenting plan will graduate from supervised visits on

Saturdays 8:30am-2pm to the Deschutes County Standard

Plan.

“Upon reasonable belief of a relapse in alcohol use, parent-

ing time shall be supervised. Father shall have an alcohol

monitor placed on him through Vigilnet. The alcohol mon-

itor may be removed upon 30 consecutive days of non-al-

cohol use, at which time the standard parenting plan will

resume.”

On appeal, father argues that the trial court erred

in its modification order. In ordering a modification to a par-

enting plan, the court considers only whether the modifica-

tion is in the best interests of the child. Davison and Schafer,

308 Or App 513, 518, 479 P3d 1108, 1112 (2021). We review

a trial court’s decision to modify a parenting time order

first for legal error to determine whether the court correctly

applied the best-interest legal standard. Id. We next review

a court’s best-interest determination for abuse of discretion.

Id. When determining whether modification of a parenting

plan is in the best interests of the child, the court must con-

sider the factors from ORS 107.137(1):

“(a) The emotional ties between the child and other family

members;

“(b) The interest of the parties in and attitude toward the

child;

Nonprecedential Memo Op: 342 Or App 515 (2025) 519

“(c) The desirability of continuing an existing relationship;

“(d) The abuse of one parent by the other;

“(e) The preference for the primary caregiver of the child,

if the caregiver is deemed fit by the court; and

“(f) The willingness and ability of each parent to facilitate

and encourage a close and continuing relationship between

the other parent and the child. However, the court may not

consider such willingness and ability if one parent shows

that the other parent has sexually assaulted or engaged in

a pattern of behavior of abuse against the parent or a child

and that a continuing relationship with the other parent

will endanger the health or safety of either parent or the

child.”

No one factor is dispositive. Sjomeling, 251 Or App at 188.

Father first argues that the trial court erred in find-

ing that he suffered from untreated alcoholism and depres-

sion “without sufficient medical evidence.” Assuming that

argument was preserved below, we conclude that the court

did not err in making that finding. Because we decline to

take de novo review, we are bound by the trial court’s factual

findings if there is evidence in the record to support them.

Id. at 173. Based on both father’s and mother’s testimony,

we conclude that there is evidence in the record to support

the finding regarding father’s alcohol use and mental health

struggles. We are unpersuaded that, on this record, the court

needed “medical evidence” to make the finding that it did.

Second, father argues that the trial court abused

its discretion in determining that the modification was in

the child’s best interests because there was no evidence that

father’s alcohol use impacted the child. After reviewing the

record, we conclude that the trial court did not abuse its dis-

cretion in applying the best-interest standard. Specifically,

the court could, and did, find that father’s alcohol use likely

contributed to the inappropriate text messages he sent

mother which negatively affected the parents ability to facil-

itate their relationship with the child, and contributed to

his failure to show up at the scheduled visitation times. In

light of those findings, the court did not abuse its discretion.

See ORS 107.137(1) (factors the court must consider in eval-

uating what is in the best interest of the child include the

520 Brown v. Collette

“interest of the parties in and attitude toward the child,”

and the “willingness and ability of each parent to facilitate

and encourage a close and continuing relationship between

the other parent and the child”).

Third, father argues that the trial court erred in

“abdicating its authority to [mother] by granting her the

ability to modify parenting time without demonstrating

th[at] modification was in the best interests of the child.” We

agree that the court erred in that regard. “[A] noncustodial

parent’s parenting time cannot be left up to the custodial

parent.” Albar and Najjar, 292 Or App 146, 161, 424 P3d

774, rev den, 363 Or 677 (2018). That is because “[i]t is the

court’s task, not [the custodial parent’s], to develop a parent-

ing plan, including appropriate quality parenting time, in

the best interests of the children.” Stewart and Stewart, 256

Or App 694, 696, 302 P3d 818 (2013); see also Hickam and

Hickam, 223 Or App 302, 305, 196 P3d 63 (2008) (holding

that the trial court plainly erred in establishing a parenting

plan without making the required findings, instead leav-

ing the decision of father’s parenting time to a parenting

coordinator).

The modification requires father to submit proof of

completion of treatment and the results of any UAs to mother.

In its oral order, the trial court explained that there “must

be a release of information so that [mother] can be informed”

of any “dirty UAs.” The court also addressed mother and

told her that it would include a “safety provision,” and we

understand the challenged provision to provide mother with

a mechanism to change the parenting plan if she “reason-

ably believes” that father has relapsed outside of the UAs.

The written order provides that, “Upon reasonable belief of

a relapse in alcohol use, parenting time shall be supervised.”

The parties agree that that provision applies if mother has a

reasonable belief that father has relapsed.1 Under that pro-

vision, mother, and not the court, is vested with the author-

ity to change the parenting plan. Only the trial court has

1

At oral argument, mother represented that she understood the order to

require her to go to court and petition for a change to the parenting plan if she

suspects that father has relapsed. The text of the order, however, provides that

upon reasonable belief of a relapse, the plan automatically reverts to supervised

visits.

Nonprecedential Memo Op: 342 Or App 515 (2025) 521

the authority to change a parenting plan. The court erred

in delegating that authority to mother. Stewart, 256 Or App

at 696.

Accordingly, we reverse and remand for the trial

court to modify the parenting plan in accordance with this

decision.

Reversed and remanded.