187
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted June 23, affirmed August 3, 2022
In the Matter of the Marriage of
Nicole Regene MAXEY,
Petitioner-Appellant,
and
Steven Charles PITZING,
Respondent-Respondent.
Clackamas County Circuit Court
17DR07699; A175656
Katherine E. Weber, Judge.
Craig M. Cowley argued the cause and filed the brief for
appellant.
No appearance for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
AOYAGI, J.
Affirmed.
188 Maxey and Pitzing
AOYAGI, J.
Mother appeals a supplemental judgment of marital dissolution that gave mother sole legal custody of the
parties’ child, M, and that made certain modifications to
the parenting-plan terms, but that kept parenting time and
child support the same. Mother contends that the modification court erred in three regards, all with respect to the parenting plan: (1) by failing to consider the recommendations
of the custody evaluator and M’s attorney; (2) by failing to
make adequate findings or provide an adequate explanation
of its best-interest determination; and (3) by failing to modify the plan as mother requested. For the reasons explained
below, we affirm.
FACTS
The parties were married for five years and have
one son, M, born in 2014. In August 2018, a general judgment of marital dissolution was entered. As per the parties’
stipulation, the judgment provided for mother and father
to have joint legal custody of M, with mother designated
as the primary residential parent. Father was given parenting time every other weekend (from Friday 4:00 p.m. to
Sunday 4:00 p.m.), on Wednesday evenings (from 4:00 p.m.
to 8:00 p.m.), and on specified holidays. Father was ordered
to pay child support.
In March 2019, mother moved to modify custody,
parenting time, and child support. She attested in her
attached declaration that, among other things, father was
attempting to undermine M’s relationship with mother, that
father had shown contempt for the parties’ parenting relationship and the parenting plan, that father had threatened
mother’s significant other, and that father had interfered
with M’s education. Mother requested sole legal custody
of M. She also requested that the parenting plan be modified in M’s best interest (without specifying how). And she
requested that child support be modified per the Oregon
Child Support Guidelines to reflect the change in parenting
time. Father responded in April 2019. He conceded that it
was appropriate that mother be given sole legal custody of
M. However, he argued against any reduction in his parenting time. He also made his own request for five specific
Nonprecedential Memo Op: 321 Or App 187 (2022) 189
changes to the parenting plan, related to M’s birthday, calls
with mother during father’s parenting time, a “right of first
refusal” for parenting time, extra parenting time for father
until M started kindergarten, and the timing of Wednesday
parenting time.
In the summer of 2019, the court issued several
orders in response to motions filed by mother. It issued an
immediate-danger order that gave mother temporary sole
legal custody of M, based on a “danger of emotional harm”
to M, after father withdrew consent for M’s counseling. It
appointed Dr. Wendy Bourg as a custody evaluator. And it
appointed an attorney to represent M. A year later, in July
2020, on mother’s motion, the court continued the existing
immediate-danger order and added a provision that father’s
parenting time would be limited to two hours twice a week
with professional supervision at father’s expense, after an
incident on July 4 in which M sustained second-degree burns
from a sparkler firework while in father’s care. In August
2020, the court held father in contempt for not cooperating
with the previously ordered custody evaluation.
The case went to trial in August 2020. The trial
took place over three days. As outlined in her trial memorandum, mother requested that father be required to complete his part of the custody evaluation—including submitting to a psychological evaluation and providing documents
to Bourg—and that the court then modify the parenting
plan in whatever way that Bourg recommended. Mother
requested that, in the meantime, father’s parenting time
be supervised. M’s attorney also filed a trial memorandum,
which generally supported mother’s requests, supported one
of father’s requests, suggested an additional type of evaluation of father (by a dialectical behavioral therapist), and
requested nearly a dozen specific modifications to the parenting plan to either reduce discord between mother and
father or to address a specific concern such as the possibility that M might be on the autism spectrum. Father, who
appeared pro se, did not file a trial brief.
Both parents testified at trial, as did Bourg. As relevant here, Bourg testified that she could not really make any
recommendations on father’s parenting time—as to either
190 Maxey and Pitzing
its amount or whether it should be supervised—because she
had only been able to evaluate mother. Father had not provided any of the information that he was ordered to provide,
or otherwise cooperated in an evaluation, so her only information about father came from mother, public records, and
the like. Before making a recommendation, Bourg would
want, among other things, a psychological evaluation of
father and an alcohol-use evaluation of father.
In closing arguments, mother and M’s attorney took
positions consistent with their trial memoranda. Father’s
position was less focused, but, essentially, he opposed any
reduction in his parenting time, opposed supervision of his
parenting time, expressed willingness but a lack of funds
to participate in evaluations, and did not consider it necessary to change the parenting-plan terms, except perhaps to
address M’s birthday and to reduce calls to the other parent
during parenting time.
The court announced its ruling orally at the conclusion of trial, and later entered a supplemental judgment
that reiterated its findings and conclusions. The court
awarded sole legal custody of M to mother. The court commented that, “for some reason,” the parties had litigated
custody, rather than focusing on parenting time, despite
father having conceded custody in April 2019. The court
then proceeded to make findings, including finding that
father had made “negative and disparaging comments” to
mother, that M made similar comments to mother after
returning from father’s care, that father had consumed
alcohol during his parenting time, and that M was accidentally injured by a firework while in father’s care on July 4.
As to the last point, the court gave a verbal “admonishment” regarding future firework use, but concluded that M
was not in immediate danger from father, and dismissed
its immediate-protection order. The court also vacated its
previous contempt order against father, which had been
based on father’s failure to comply with the court-ordered
custody evaluation. The court explained that, in hindsight,
it had been “incorrect” to hold father in contempt, because
father had conceded custody long before the contempt hearing (which the court apparently had not realized at the time
Nonprecedential Memo Op: 321 Or App 187 (2022) 191
of the hearing1), such that a custody evaluation was “not
necessary.”
As for parenting time, the court determined that
it was “in [M]’s best interest that the parenting plan stipulated to by the parties in the General Judgment remain
unchanged.” (Context suggests that the court was referring
to the parenting-time aspect of the plan.) And, because there
was “no change in the allocation of overnights between the
parties,” the court declined to modify child support. The
court did make certain modifications to the parenting-plan
terms, however, which mostly tracked changes requested by
M’s attorney, as well as addressing some issues raised by
mother, father, or Bourg. Specifically, the court ordered that
neither parent disparage the other in M’s presence, that neither parent consume alcohol during parenting time, that
both parents attend a specific parenting class, that both
parents actively support and engage in M’s counseling, that
all nonemergency parental communications occur through
My Family Wizard, that no “right of first refusal” exist, that
Skype calls to the other parent not be scheduled during
parenting time except at M’s request, and that mother and
father have parenting time on M’s birthday in alternating
years. The court also “strongly encouraged” the parties to
have M medically evaluated for autism.
Finally, the court emphasized that the parties
needed to move past their contentious relationship, immediately begin “discussing the other parent in a positive, loving,
and caring way in front of [M],” and put M’s best interests at
the forefront, or else parenting time could be substantially
limited or even cut off completely in the future:
“I’m hopeful that my comments will be taken to heart
by both of you and that you will do the best that you can to
continue to collaboratively coparent your child. It is in his
best interest that you do so. You should anticipate that if
1
We note that the phrasing of father’s response on custody, in his pro se
April 2019 filing, could have caused some of the confusion. In a single paragraph,
father denied that it was in M’s best interest for sole custody to be awarded to
mother (which would suggest that custody should not be changed), but then
acknowledged that joint custody could not continue, and ultimately concluded,
“Respondent acknowledges that Petitioner is the primary parent, and therefore
concedes custody to Petitioner.”
192 Maxey and Pitzing
you do not follow all of my orders that I have put in place
today, and that if you are back in a courtroom where there
are allegations of behavior such that I have seen today, a
judge could make a different decision in the future, substantially limiting, if not cutting off completely, either or
both of your parenting time. Both of you need to rethink
how you’re dealing with the other parent. Both of you need
to be putting your child first. I hope that I have made this
strong enough in my comments to you, and it’s my great
hope that behavior changes, that you coparent in a better
fashion, and we do not see you back before the court again.”
ANALYSIS
We begin with mother’s second assignment of error.
Mother contends that, regarding the parenting plan, the
modification court failed to make adequate findings as to
M’s best interest, specifically with reference to the ORS
107.137(1) factors,2 and failed to explain the relationship
between its findings and the factors. In the course of her
argument, mother also suggests that the court should have
explained why it did not believe that it was in M’s best interest to grant all of mother’s and M’s attorney’s requests.
We reject that argument on procedural grounds.
After ruling, the modification court gave the parties an
opportunity to ask questions about the ruling, and the parties in fact asked questions that the court answered. At
no point did mother request that the court make express
2
When determining the custody of a minor child, ORS 107.137(1) requires
the court to “give primary consideration to the best interests and welfare of the
child” and identifies six factors that the court “shall consider” toward that end.
When developing a parenting plan for a minor child, ORS 107.105(1)(b) requires
the court to act “in the best interest of the child” and imposes certain parameters on that decision. We have implicitly construed ORS 107.105(1)(b) to silently
incorporate the ORS 107.137(1) factors. See Cooksey and Cooksey, 203 Or App
157, 167,
125 P3d 57 (2005) (“ORS 107.137 lists various factors that the court
must consider in determining the best interests of a child in custody cases. We
know of no reason why those same factors would not be relevant to a determination of the best interests of a child in a case involving relocation only.”); see also,
e.g., Davison and Schafer,
308 Or App 513, 518,
479 P3d 1108 (2021) (stating,
in a case involving parenting-plan modifications, that the best-interest analysis
under ORS 107.105(1)(b) “requires the trial court to consider the statutory factors
in ORS 107.137(1)”). In this case, mother expressly asked the court to apply the
ORS 107.137(1) factors in deciding parenting-plan issues, as did M’s attorney,
and father was silent on that issue. Under the circumstances, on this record, it
is reasonable to presume that the modification court understood that it should
consider the ORS 107.137(1) factors in deciding parenting-plan issues.
Nonprecedential Memo Op:
321 Or App 187 (2022) 193
findings on each factor that it considered, nor did she
request a specific explanation for any portion of the court’s
ruling. When the court makes a discretionary decision without detailing its reasoning, and a party believes that further
explanation is necessary for meaningful appellate review, it
is “ ‘incumbent on [the party] to request it.’ ” Botofan-Miller
and Miller,
365 Or 504, 525,
446 P3d 1280 (2019), cert den,
___ US ___,
141 S Ct 134 (2020) (“Mother’s lawyer asked
for a clarification of the court’s order respecting the transition of custody, but he did not ask for findings relating
to the statutory best interest factors or clarification of the
ruling concerning the standards for modification. As this
court stated in Anderson, ‘If defendant believed that further
explanation than the trial court provided was necessary for
meaningful appellate review, it was incumbent on him to
request it.’ ” (Quoting State v. Anderson,
363 Or 392, 410,
423
P3d 43 (2018).)).3 Mother’s second assignment of error therefore does not provide a basis for reversal of the judgment.
Turning to mother’s first and third assignments of
error, mother argues that the modification court wrongly disregarded recommendations made by Bourg and by M’s attorney and wrongly rejected plan modifications that mother
had requested. To the extent that mother seeks discretionary de novo review, we decline to provide de novo review. See
ORS 19.415(3)(b) (providing for discretionary de novo review
in certain cases); ORAP 5.40(8)(c) (explaining that we exercise such discretion “only in exceptional cases”). We instead
review for abuse of discretion. Weems v. Winn, 272 Or App
758, 761,
358 P3d 322 (2015).
The modification court did not abuse its discretion
in ruling as it did on the parenting plan. When the court
3
Mother cites Epler and Epler, 258 Or App 464,
309 P3d 1133 (2013), aff’d,
356 Or 624,
341 P3d 742 (2014), for the proposition that, even without a specific
request from a party, a trial court making a discretionary ruling must provide
enough findings and explanation to allow meaningful appellate review, or else
remand is appropriate. See Epler,
258 Or App at 486-87 (“In light of the views
expressed by the parties below and the court’s failure to explain the basis for its
decision to reject mother’s motion to modify the parenting plan and child support,
we conclude that we cannot determine whether the court abused its discretion in
ruling on those issues because it is unclear that the court exercised its discretion.”). To the extent that tension exists between Epler and Botofan-Miller, the
latter is the most recent word from the Supreme Court on the subject and is thus
controlling.
194 Maxey and Pitzing
develops a parenting plan, the controlling consideration is
“the best interest of the child.” ORS 107.105(1)(b). Here, the
court expressly determined that it was in M’s best interest
not to change the existing plan, at least as far as father’s
parenting time, which carried an implicit determination
that it was not in M’s best interest for the court to delay ruling on parenting-plan modifications while father submitted
to various evaluations to see if they might lead to evidence
to support mother’s request to change the existing plan. It
was within the court’s discretion to decide the modification
issues on the existing evidence, particularly when mother
was being awarded sole legal custody of M4 and when father
already had fairly limited parenting time (essentially two
weekends a month, one evening a week, and some holidays). And, other than denying mother’s and M’s attorney’s
requests to defer deciding the parenting-plan modification
issues until after father completed the custody evaluation
and Bourg made recommendations, the court actually made
most of the parenting-plan modifications requested by M’s
attorney, as well as making other modifications to address
issues raised by mother or Bourg. Those modifications have
already been described.
On this record, the court acted within the range of
legally permissible outcomes and, accordingly, did not abuse
its discretion. See Olson and Olson, 218 Or App 1, 16,
178
P3d 272 (2008) (“[A] trial court’s … award must reflect the
exercise of discretion under the correct methodology, and it
must lie within the range of legally permissible outcomes.”).
In so concluding, we emphasize the standard of review,
which requires us to accept express factual findings if
4
We note that, as to custody, mother is correct that, until the court actually
awarded custody to her, mother could not assume that the court would do so simply because father conceded the issue. It is therefore understandable that mother
would address custody at trial, and it is unclear why the court was somewhat
critical of that issue being litigated. Both orally and in writing, the court made a
point of saying that, “for some reason,” the parties had “disregarded” father’s concession on custody (which was included in his first filing in April 2019) and tried
the case as “a custody case, not a parenting time case.” When mother’s attorney
said that he had a question about the court’s comment, the court stated, “I don’t
need a comment, and I don’t need a response. I just need to know if there are
any questions.” At that point, perhaps understandably, mother’s counsel did not
say anything further on the custody issue—but did ask for clarification on other
issues.
Nonprecedential Memo Op: 321 Or App 187 (2022) 195
there is any evidence in the record to support them, assume
implicit factual findings consistent with the trial court’s
ultimate conclusions, and “accept reasonable inferences and
reasonable credibility choices that the trial court could have
made.” Botofan-Miller,
365 Or at 505-06. To the extent that
the court did not explain its reasoning in great detail in this
case, thus allowing the possibility of a hidden analytical
flaw, any such flaw is not apparent on this record, and it
was incumbent on mother to make the necessary record to
bring it out for appellate review. See
id. at 525. Ultimately,
we must “uphold the trial court’s best interest determination unless [the] court exercised its discretion in a manner
that is clearly against all reason and evidence,”
id. at 506
(internal quotation marks omitted), and we cannot say that
standard is met here. We therefore reject mother’s first and
third assignments of error.
Affirmed.
