Strand v. Garvin ( 2021 )

47
Submitted April 2, reversed and remanded June 3, 2021
Justyne M. STRAND,
Petitioner-Respondent,
v.
James P. GARVIN,
Respondent-Appellant.
Marion County Circuit Court
19DR17579; A174451
492 P3d 1266
Father, who is incarcerated, appeals an order denying his motion under ORS
107.135 to modify a default judgment that denied him parenting time with his
child based on a finding that it would not be in the child’s best interests. Father
argues, among other contentions, that the trial court failed to make a sufficient
record for meaningful appellate review of the court’s exercise of discretion.
Held: At the time that father filed his motion, the trial court would have been
aware that father initially had taken reasonable actions to protect his interest in
parenting time but was denied that opportunity for reasons beyond his control;
the findings about parenting time in the default judgment were based on some-
what conclusory representations by mother about father and about the effects of
prison on children; father wished to challenge those representations; and father
had not had a previous opportunity to fully develop a factual record or otherwise
challenge mother’s representations. Given that context, and without any expla-
nation from the trial court for its summary denial of father’s motion, the Court of
Appeals had no way of determining whether the court’s denial of the motion was
within the permissible range of the court’s discretion.
Reversed and remanded.
Sean E. Armstrong, Judge.
James Garvin filed the brief pro se.
No appearance for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Reversed and remanded.
48 Strand v. Garvin
LAGESEN, P. J.
Father, who is incarcerated, appeals an order deny-
ing his motion under ORS 107.135 to modify a judgment that
denied him parenting time with his child based on a finding
that it would not be in the child’s best interests. For the rea-
sons explained below, we agree with father that the court
failed to make a sufficient record for us to meaningfully
review its exercise of discretion, and we therefore reverse
and remand for further proceedings. See Dept. of Human
Services v. N. J. V./D. L. O., 290 Or App 646, 648, 419 P3d
783 (2018) (agreeing with the mother that the juvenile court
erred by denying her motion to continue a guardianship
hearing without making a sufficient record of its reasons for
doing so).
The relevant background facts are procedural in
nature. In September 2019, mother filed a petition seeking
sole custody of the parties’ child, N, who was four years old
at the time. Mother, using a form petition, checked a box
stating that father “should not be granted parenting time
because this would endanger the health or safety of the chil-
dren.” In the space provided on the form to “state supporting
facts,” mother stated that father
“has not seen [N] since 2016, incarcerated since 2016 for
domestic violence in front of [N]. Earliest release date is
2024, not healthy for her mentality. Traumatizing to be in
a prison for young child. Not safe to be around that envi-
ronment. [Father] is gang affiliated, has started riots &
has had a lot of disciplinary actions. Not an ideal situation
for any child.”
A deputy sheriff personally served father with the
petition on September 20, 2019. On October 21, 2019, mother
filed a motion seeking an order of default and entry of judg-
ment on her petition. The court granted the motion that
same day, and a default judgment was entered the next day,
October 22, 2019. The judgment awarded sole custody to
mother and, by way of a check-the-box notation, stated that
father “must not have parenting time because this would
endanger the health and safety of the children.”
The following day, father’s response to the petition
was filed with the court. The record reflects that it was
Cite as 312 Or App 47 (2021) 49
delivered to the prison mail system at the Oregon State
Correctional Institution (OSCI) on October 16, 2019, well
before father’s response was due, but apparently did not
arrive at the court until a week later. In his response, father
contested only parenting time. He stated, “I would like to be
granted physical visits, video visits, phone calls, and mail. I
would like the physical visits weekly due to the fact that I’m
in Salem as is my daughter so traveling isn’t very far.”
The trial court record reflects no further activity in
the case until the following April, when father filed a motion
for relief from the default judgment under ORCP 71, on the
grounds of “mistake, inadvertence, surprise or excusable
neglect.” In the motion, father explained that he had placed
his response in OSCI’s legal mail system for delivery to the
court for filing and service on petitioner by first-class mail
on October 16, 2019, and he attached a log from the prison
mail system reflecting mailings to the court and to mother
on that date. According to father, he had not received notice
of the default, so in February 2020, after not hearing any-
thing about the case, he asked one of the prison’s legal assis-
tants to check on the status of the case. The legal assistant
informed him that a default had been entered.
The trial court denied father’s motion a week after
it was filed, without any response from mother. The order
stated, “Motion DENIED. [Father] may move to modify par-
enting time provisions under ORS 107.135.” The statute ref-
erenced by the court provides that the court “may at any time
after a judgment of annulment or dissolution of marriage
or of separation is granted, upon the motion of either party
and after service of notice on the other party in the manner
provided by ORCP 7 * * * (a) [s]et aside, alter or modify any
portion of the judgment that provides for the appointment
and duties of trustees, for the custody, parenting time, vis-
itation, support and welfare of the minor children and the
children attending school.”1
1
By its terms, ORS 107.135 applies after entry of judgment of annulment
or dissolution of marriage or of separation is granted. However, ORS 109.103,
which governs proceedings to determine custody, support, and parenting time
in the case of unmarried parents, provides that those “parents have the same
rights and responsibilities regarding the custody and support of, and parent-
ing time with, their child that married or divorced parents would have, and the
50 Strand v. Garvin
On July 13, 2020, father filed a motion under ORS
107.135 to set aside the default judgment, as the court
indicated he could. In the motion, which was supported by
an attached declaration, father explained that he sought
to modify the judgment with respect to parenting time—
specifically, the provision of the judgment stating that
“[father] must not have parenting time because this would
endanger the health and safety of the children.” Father
argued that “[n]o factual findings were made” as to how par-
enting time might endanger N, and he submitted a declara-
tion and attached exhibits to contest mother’s representa-
tion in her petition on that point.
In his declaration, father stated that he was deeply
ashamed and regretful for the damage that he had done to
N by committing the crime for which he was convicted, and
that during his incarceration he had “worked very hard to
change my life, become rehabilitated and fully identify and
overcome the issues that contributed to the criminal behav-
ior that I stand convicted of.” He stated that he had par-
ticipated “in every rehabilitation and self-improvement pro-
gram that is available to me,” and he attached certificates of
completion for various prison programs, including on anger
management, self-control, and “making changes.”
Father also attached a letter from an officer in the
Security Threat Management Unit at OSCI. The letter states
that father had arrived at OSCI from another correctional
facility in late August 2019 and, during his initial meet-
ing with the officer, “indicated that his child was the most
important thing in his life.” The letter goes on to explain
that the officer and father had discussed that “[father’s]
choices moving forward would ultimately prove if this were
true or not,” including whether father would be able to avoid
engagement with other inmates, even if they were aggres-
sive toward him. The letter states that father was “viciously
assaulted by someone believing him to be a rival gang mem-
ber” in October 2019, but that father “made a very important
provisions of ORS 107.094 to 107.449 that relate to custody, support and parent-
ing time” apply. See T. S. R. v. J. B. C., 257 Or App 745, 751 n 1, 308 P3d 244 (2013)
(“[A]lthough mother and father never married, the provisions of ORS 107.093 to
107.449 govern the proceeding that resulted from father’s motion to modify the
custody judgment.”).
Cite as 312 Or App 47 (2021) 51
choice in that moment and did not fight back,” instead allow-
ing staff to intervene. The letter concludes:
“I believe that [father] is committed to a different direc-
tion in his life. His choice in the ‘heat of the moment’ is
obvious proof of commitment that [father] is hopeful for bet-
ter outcomes and his relationship with his child appears
the catalyst for this change.
“I believe this commitment to change recently proven
through action will ultimately lead to better choices he
makes for himself and family.”
Father’s declaration also addressed the logistics of
visitation while he was imprisoned. He described the video
interactive calls that the Oregon Department of Corrections
has made available to families, an electronic messaging
option (subject to the same monitoring as regular mail), and
in-person visitation between prisoners and their families.
He then attached a proposed parenting plan that would give
him telephone contact with N (not monitored by mother),
unlimited messaging and video calls, and “physical contact
visits * * * at least once weekly.”
Father submitted a proposed order along with his
motion to modify the judgment. The form used by father was
essentially an order on a motion to show cause and provided
as follows:
“IT IS HEREBY ORDERED that the parties appear
on the __ day of ___________ , 2020, at __ a.m./p.m., in
Room __ of the Marion County Courthouse in Salem,
Oregon, with Respondent appearing at said place and
time telephonically, from the Oregon State Correctional
Institution (OSCI) in Salem, Oregon, to show cause why the
October 22, 2019 General Judgment Of Custody And
Parenting Time And Child Support should not be modi-
fied to provide for parenting time and visitation between
Respondent and the minor children as requested in
Respondent’s motion.
“IT IS FURTHER ORDERED that Petitioner shall
ensure that the minor child, [N], appear before the Court at
the time and place of said hearing, for inquiry by the Court
and parties as to their personal preferences and related
issues concerning parenting time and visitation.”
52 Strand v. Garvin
The use of a “show cause” form was consistent with
the Uniform Trial Court Rules and Supplementary Local
Rules (SLR) for Marion County, which provide that modifi-
cation proceedings must be initiated by a show cause order.
See UTCR 8.050(1) (“Modification proceedings must be initi-
ated by an order to show cause based on a motion supported
by an affidavit setting forth the factual basis for the motion
or by other procedure established by SLR.”); Marion County
Circuit Court SLR 8.061 (“The provisions of SLR 5.065 [con-
cerning show cause orders] shall apply in domestic relations
actions.”).2
A week after the motion and proposed order to show
cause were submitted, the trial court denied the motion,
noting “denied” across the top of the proposed order, with no
further elaboration.
Father now appeals that denial of his motion to
modify the judgment, arguing that the trial court erred
by effectively denying him any parenting time without any
explanation and without any meaningful opportunity to be
heard on what is in the best interest of his child. He argues
that a trial court can err when it fails to “make a record
reflecting an exercise of discretion” and “must * * * supply
enough information to enable appellate courts to engage
in meaningful review of the court’s exercise of discretion.”
(Quoting Ray Klein, Inc. v. Wade, 271 Or App 690, 691, 351
P3d 88, rev den, 358 Or 374 (2015), and State v. Kacin, 237 Or
App 66, 73, 240 P3d 1099 (2010).) On this record, we agree
with father that the court erred in summarily denying his
motion without any explanation.
Under ORS 107.135(1), a party seeking to modify a
judgment as to parenting time must serve the notice on the
other party in the manner provided under ORCP 7. ORS
2
See also SLR 5.065(6) (“If a Show Cause Order does not require the per-
sonal appearance of the opposing party and the opposing party fails to file a
written Answer to the Show Cause Order within the time allowed by the Order,
the moving party may present ex parte, an Order granting relief sought by the
moving party, providing the return of service of the Show Cause Order has been
filed of record or is presented with the proposed ex parte Order. The court, in its
discretion, may allow or deny the requested relief in whole or part, ex parte, or the
court may direct that a hearing be scheduled for the presentation of additional
evidence in support of the relief sought by the moving party.”).
Cite as 312 Or App 47 (2021) 53
107.135(1). Thereafter, “[w]ithin 30 days after service of
notice under subsection (1) of this section, the party served
shall file a written response with the court.” ORS 107.135(14).
And, as set forth above, the applicable UTCRs and the SLRs
for Marion County contemplate a “show cause” process for
motions to modify domestic relations orders.
Father, following that framework, presented the
trial court with a motion and proposed order to show cause
why the custody judgment should not be modified to grant
him parenting time. The motion and proposed order asked
the court to make a discretionary call as to whether father’s
motion and supporting materials met the minimum thresh-
old to require mother to show cause why father should not
receive parenting time.
Under the circumstances of this case, we cannot
meaningfully review the basis for the trial court’s summary
denial of that motion. First of all, the procedural leadup to
the motion provides no obvious rationale for a summary
denial. Father initially was found in default for failing to file
a response to mother’s petition on the issue of custody and
parenting time within 30 days of service, notwithstanding
the fact that he delivered a response to prison authorities
well within the time required for filing. The timeliness of
father’s initial response—and whether it was error to enter
the default judgment in the first place—are not directly at
issue in this appeal, so we are not called upon to resolve
whether father’s initial response should have been consid-
ered timely under a “prisoner mailbox rule,” whereby plead-
ings are deemed filed when they are delivered to an appro-
priate prison official.3
3
See, e.g., Houston v. Lack, 487 US 266, 271-72, 108 S Ct 2379, 101 L Ed 2d
245 (1988) (interpreting “filed” for purposes of the Federal Rules of Appellate
Procedure to include delivery to prison officials; “Unskilled in law, unaided by
counsel, and unable to leave the prison, [the prisoner’s] control over the process-
ing of his notice necessarily ceases as soon as he hands it over to the only public
officials to whom he has access—the prison authorities—and the only informa-
tion he will likely have is the date he delivered the notice to those prison author-
ities and the date ultimately stamped on his notice.”); Hickey v. OSP, 127 Or
App 727, 734, 874 P2d 102 (1994) (interpreting ORAP 1.35 to mean that a peti-
tion “shall be deemed to have been filed at the time it is delivered to the person
authorized by the institution to accept delivery for forwarding to the State Court
Administrator pursuant to ORAP 1.35,” thereby avoiding the need to address any
constitutional problems that might arise from a narrower construction); see also
54 Strand v. Garvin
Nevertheless, the circumstances of the default—
that father took reasonable steps to file a response to the
initial petition, wished to contest parenting time, and was
denied that chance for reasons beyond his control—informs
our assessment of the possible reasons for the court’s later
actions. As a result of the default, the initial denial of visita-
tion to father was based solely on mother’s representations
in her declaration that visitation was “not healthy for [N’s]
mentality,” that the prison environment would be trauma-
tizing and unsafe, and that father is “gang affiliated, has
started riots & has had a lot of disciplinary actions.”
When father then attempted to set aside that default
judgment on the basis of mistake, inadvertence, surprise, or
excusable neglect under ORCP 71, pointing out his efforts to
respond and producing evidence that he had, in fact, deliv-
ered his response to the prison mail system a week before
a response was due, the trial court denied the motion with-
out waiting for a response from mother. That is, despite the
stakes for father as a parent, the evidence of his good faith
and reasonable efforts to obtain a hearing on the issue of
parenting time, and without knowing whether mother even
opposed the motion, the court denied father’s motion and
instead directed him to the modification process under ORS
107.135.
The trial court’s ruling on the motion to set aside
the judgment, like the entry of the original default, is not
directly at issue in this appeal; but, again, it provides
important context for understanding the court’s later sum-
mary denial of father’s motion to modify. Assuming that
father’s initial filing was late, the underlying circumstances
would seem to be exactly the type of situation that ORCP
71 is intended to address, that is, where a party has a good
excuse for missing the deadline. But the court denied the
Harvey v. Christie, 237 Or App 237, 239, 239 P3d 279 (2010) (declining to reach an
argument by an inmate in a corrections institution that his appeal to the circuit
court from an arbitrator’s ruling was timely “because of the ‘prisoner mailbox
rule,’ under which a pleading is considered to have been filed with the court when
delivered to an appropriate prison official”); but see Stull v. Hoke, 326 Or 72, 81,
948 P2d 722 (1997) (rejecting a prisoner mailbox rule for statute of limitations
purposes under ORS 12.020, and concluding “that, in the type of situation pre-
sented in this case, the operative moment for ‘filing’ an action is when the court
clerk or a person exercising the duties of that office receives the complaint”).
Cite as 312 Or App 47 (2021) 55
motion to set aside, apparently based on the understanding
that father would later have a meaningful opportunity to
address the question of parenting time through the modifi-
cation process under ORS 107.135.
All that is to say that, by the time father presented
his motion to modify and the proposed order to show cause,
the trial court would have been aware that (1) father ini-
tially had taken reasonable actions to protect his interest in
parenting time; (2) the findings about parenting time in the
default judgment were based on somewhat conclusory rep-
resentations by mother about father and about the effects
of prison on children; (3) father wished to challenge those
representations; and (4) he had not had a previous opportu-
nity to fully develop a factual record or otherwise challenge
mother’s representations. Given that context, it remains
possible that the trial court had in mind some permissible
basis for denying an order to show cause and concluding
that further development of the record with regard to par-
enting time was unnecessary, but that reason is not readily
apparent to us.
The lack of an explanation from the trial court in
this case is not merely a matter of form. We have repeatedly
held that parents do not automatically forfeit the right to
visitation merely by the fact of incarceration. See Stewart
and Stewart, 256 Or App 694, 695, 302 P3d 818 (2013)
(“ ‘[A] parent’s incarceration does not invariably require
that visitation be denied.’ ” (Quoting Harris v. Burns, 137
Or App 355, 359, 904 P2d 648 (1995), rev den, 322 Or 644(1996).)). Rather, “ ‘[e]ach case must be decided on its own
merits and not on the basis of a policy not to allow children
to visit their parents at the penitentiary.’ ” Stewart, 256 Or
App at 695 (quoting State ex rel Juv. Dept. v. Clampitt/Hale,
18 Or App 12, 16, 523 P2d 594 (1974)). Moreover, it is well
established that the interest of parents in their relation-
ship with their children is sufficiently fundamental to come
within the finite class of liberty interests protected by the
Fourteenth Amendment to the United States Constitution.
Dept. of Human Services v. B. A. S./J. S., 232 Or App 245,
260, 221 P3d 806 (2009), rev den, 348 Or 280 (2010). Thus,
a trial court’s decisions regarding the parenting time of a
noncustodial parent generally must comport with notions of
56 Strand v. Garvin
fundamental fairness. See State ex rel Juv. Dept. v. Burris,
163 Or App 489, 495, 988 P2d 414 (1999) (because “[p]arental
rights are of paramount importance[,] proceedings affecting
those rights must comport with due process”).
Father also has a statutory right to review of the
trial court’s decision, and without any explanation from the
trial court regarding the reason for its summary denial, we
have no way to meaningfully review whether the court’s
exercise of discretion regarding the motion to modify com-
ported with those legal principles regarding parenting time.
See State v. Colby, 295 Or App 246, 253, 433 P3d 447 (2018)
(reversing where this court could not “meaningfully review
whether the trial court correctly applied the law” because
we could not tell “what standard the trial court applied * * *
[and were] unable to determine whether it based its ruling
on the correct legal premises”). It is possible that the trial
court summarily denied the motion on the basis of father’s
incarceration alone, or because it believed that father was
given sufficient process, or because it discredited, on a cold
record, the evidence that father submitted with his motion.
We have no way to determine on this record which, if any,
of those bases the trial court relied upon or whether any of
them would fall within the trial court’s permissible range
of discretion under the circumstances. We therefore reverse
and remand for reconsideration of father’s motion to modify.
Reversed and remanded.