§14.5 Substantive Law of Modification

JurisdictionOregon
§ 14.5 SUBSTANTIVE LAW OF MODIFICATION

§ 14.5-1 The Change-in-Circumstances Rule—Generally

The change-in-circumstances rule is an explicit statutory requirement for modification of child and spousal support. ORS 107.135(3)(a). For custody modifications, statutory authority is derived indirectly from ORS 107.169(5) and ORS 109.175(1). See State, Department of Justice, Support Enforcement Division ex rel. Binschus v. Schreiber, 141 Or App 288, 291, 917 P2d 1063 (1996).

The moving party in a proceeding to modify custody or support has the burden of proving that a material, unanticipated change in circumstances sufficient to modify the order has occurred since the order was entered, or since the last modification order was entered. In re Marriage of Boyd, 152 Or App 785, 788-89, 954 P2d 1281 (1998); In re Marriage of Teel-King & King, 149 Or App 426, 429-30, 944 P2d 323 (1997), rev den, 327 Or 82 (1998); see § 8.8-1 to § 8.8-4.

But, the real, relevant starting point after which the change in circumstances must occur is the date of trial, not the later date when judgment is entered after trial. In re Marriage of Sills, 63 Or App 157, 160, 662 P2d 795, rev den, 295 Or 446 (1983). Therefore, "[a] change of circumstances that occurs after trial, but before the judgment is signed, is a proper subject of a motion to modify." In re Marriage of Pickering, 100 Or App 47, 50, 784 P2d 130 (1989).

The court will not revisit the prior order and relitigate stale matters. In re Marriage of Newton, 122 Or App 52, 56, 857 P2d 171, rev den, 318 Or 24 (1993). However, once a change has been shown, the court may hear evidence on "preexisting" circumstances to provide context for proper evaluation of the change. See, e.g., In re Marriage of Greisamer, 276 Or 397, 401, 555 P2d 28 (1976); Harder v. Harder, 26 Or App 337, 341, 552 P2d 852 (1976).

Facts occurring before the divorce but not made known to the court at the divorce trial may not be used to demonstrate a change in circumstances when the proponent was aware of those facts before the divorce judgment was entered and did not bring those facts to the court's attention. In re Marriage of Southworth, 113 Or App 607, 614, 835 P2d 122, rev den, 314 Or 573 (1992) (reservation of evidence for modification use was improper when the proponent discovered the evidence after the divorce hearing but before the order was entered, and no communication was made to the court).

A change in circumstances is required even if the order was stipulated to or taken by default, rather than litigated, when the last custody order was entered. State Department of Human Resources ex rel. Johnson v. Bail, 140 Or App 335, 341-44, 915 P2d 439 (1996), affd, 325 Or 392, 938 P2d 209 (1997); In re Marriage of Welby, 89 Or App 412, 414, 749 P2d 602 (1988), overruled on other grounds by Johnson, 325 Or 392. A stipulated agreement between the parties does not bar a court from modifying the judgment to impose child support or to change the amount but may be taken into consideration when setting support. In re Marriage of Wood, 106 Or App 192, 194, 806 P2d 722 (1991).

Moreover, proof of a change in circumstances is generally needed if the last order is silent on an issue that could have been raised at that time. See In re Marriage of Nelson, 27 Or App 167, 170-71, 555 P2d 806 (1976) (when child support was not litigated and the judgment was silent on the subject, a change of circumstances since the judgment had to be shown to obtain support). But see In re Marriage of Webb, 90 Or App 45, 47, 750 P2d 1173 (1988) (change in circumstances not needed to obtain support when the court left open the issue of child support when changing custody).

A change in circumstances must be shown to modify a judgment taken after a default. In Johnson, 140 Or App at 341-42, the court held that a change must be shown and that the circumstances existing at the time of the divorce could be shown by evidence at the modification hearing, if necessary.

The modification of one subject of the divorce judgment does not bar the modifying court from reviewing another subject. A support modification occurring before a custody modification does not bar a movant from basing the latter claim on custody changes predating the support modification order. In re Marriage of Stevens, 107 Or App 137, 140, 810 P2d 1334, rev den, 312 Or 80 (1991).

A change in circumstances is not required for the periodic review of a child support order conducted under ORS 25.287. See § 14.2-9; chapter 10. The change-in-circumstances rule does not apply to parenting-time modifications. In re Marriage of Cooksey, 203 Or App 157, 166, 125 P3d 57 (2005); In re Marriage of Ortiz, 101 Or App 362, 365, 790 P2d 555, aff'd, 310 Or 644, 801 P2d 767 (1990). To alter parenting-time terms, the movant must prove only that the desired change is in the child's best interests. See § 14.5-3(a).

§ 14.5-2 Child Custody Modification

§ 14.5-2(a) Change in Circumstances Plus Best-interests Showing

A party requesting a custody modification must show both a change in circumstances and that the modification would be in the child's best interests. In re Marriage of Greisamer, 276 Or 397, 400-01, 555 P2d 28 (1976); In re Marriage of Brooks, 80 Or App 269, 272, 721 P2d 478 (1986); see § 8.8-1 to § 8.8-4. The benefit to be gained from the change must outweigh the damage caused by the instability of shifting parental figures and environments.

[W]hen there has already been one upheaval in the child's life due to divorce . . . the first and foremost requirement for the child's health and proper growth is stability, security, and continuity. . . . [S]tability is "practically the principal element in raising children, especially pre-puberty ones," and . . . "a child can handle almost anything better than he can handle instability." . . . [P]oor parental models are easier to adapt to than ever shifting ones.

Miller v. Miller, 10 Or App 330, 332, 499 P2d 826 (1972) (citing Smith v. Green, 4 Or App 533, 536-37 n 1, 480 P2d 437 (1971) (quoting Brigitte M. Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand L Rev 1207, 1208-1209 (1969)) (alteration in Miller).

Recent cases clarify the steps the court must take when making a decision about custody modification. First, the court must decide if there has been a substantial change in circumstances since the time of the original award. See In re Marriage of Teel-King & King, 149 Or App 426, 430, 944 P2d 323 (1997), rev den, 327 Or 82 (1998), which discusses the order of proof and the balance between the appropriateness of modification and the desirability of custodial stability. See also In re Marriage of Heuberger, 155 Or App 310, 963 P2d 153, rev den, 328 Or 40 (1998). The change in circumstances must be material. DeWolfe v. Miller, 208 Or App 726, 744, 145 P3d 338 (2006), rev den, 342 Or 503 (2007). That change must be unanticipated and must relate to a parent's capacity to care for the children properly. See § 8.8-3.

Only then will the court reach the second step of the analysis: whether the modification is in the children's best interests. In re Marriage of Colson, 183 Or App 12, 21-22, 51 P3d 607 (2002); In re Marriage of Dillard, 179 Or App 24, 30-31, 39 P3d 230, rev den, 334 Or 491 (2002). In In re Marriage of Boldt, 344 Or 1, 9, 176 P3d 388, cert den, 555 US 814 (2008), the Oregon Supreme Court enunciated the rule again. After establishing an unanticipated change in circumstances the court then measures the best interests of the child at the time of the modification. See also In re Marriage of Garrett, 210 Or App 669, 671, 152 P3d 993 (2007).

The change is determined from the time of the last custody order or, more accurately, from the hearing underlying the last custody order. A parenting-time order is not a custody order for purposes of the change-in-circumstances rule. See § 14.5-3(a). An intervening modification of parenting time does not prevent a custody movant from basing a custody modification claim on changes predating the parenting-time modification order.

[W]hen the noncustodial parent establishes that circumstances existing at the time of the initial custody determination that are not then detrimental to the child worsen to the point that the child is or could be seriously harmed, the noncustodial parent has established a change in circumstances justifying a change in custody.

In re Marriage of Botofan-Miller & Miller, 365 Or 504, 524, 446 P3d 1280 (2019).

A custodial parent's move "a distance of approximately 15 miles—even when coupled with some limited decline in cooperation by father following that move does not, as a matter of law, constitute a substantial change in circumstances that justifies changing the custody provision of the underlying 2006 judgment giving father custody." In re Slaughter & Harris, 292 Or App 687, 693, 425 P 3d 770 (2018).

The Oregon Court of Appeals found that the following factors did not constitute a material and unanticipated change in a mother's fitness as a custodial parent: (1) the child's tardiness to school (not known to the mother) and occasional absences, (2) the mother's failure to require the child to do optional homework, (3) the mother's occasional physical discipline of the child that was not unlawful or injurious, and (4) the mother's handling of the child's unsubstantiated allegation that the mother's boyfriend had hit the child with a belt. In re Marriage of Johnson, 309 Or App 682, 693-704, 483 P3d 1174 (2021).

Third-party custody and visitation rights are governed by ORS 109.119. See chapter 9. This statute was amended in 2001 (Or Laws 2001, ch 873, § 1) to address the decision in Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000), which brought into question a Washington statute that allowed a court to order third-party visitation over the objections of a legal parent. The goal of Oregon's 2001...

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