Davison and Schafer ( 2020 )

555
Argued and submitted July 28, supplemental judgment reversed and remanded
September 16, 2020
In the Matter of the Marriage of
Aaron Scott DAVISON,
Petitioner-Respondent,
and
Shannon Renae SCHAFER,
Respondent-Appellant.
Washington County Circuit Court
C141979DRA; A169610
475 P3d 125
Ramon A. Pagan, Judge.
George W. Kelly argued the cause and filed the brief for
appellant.
No appearance for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Supplemental judgment reversed and remanded.
556 Davison and Schafer
PER CURIAM
In this domestic relations case, mother appeals a
supplemental judgment addressing parenting time and child
support in which the court included the following order: “On
or before July 1, 2018, Mother shall move within a 10 miles
[sic] radius of Father’s residence as determined by a circle
drawn around Father’s current residence on a map.” Mother
assigns error to that order, contending that there was no
authority for it and that, if the court had the authority to
enter such an order, doing so was an abuse of discretion.
Father has not appeared on appeal. We agree with mother
that whatever authority a court might have to order a parent
to relocate—a question we do not resolve—the court lacked
the authority to enter the particular order that it did. We
therefore reverse and remand.
In this case, mother has sole legal custody and has
been the child’s primary caretaker since 2014 when the
child was two years old. That same year, mother and child
moved from Beaverton, where both mother and father lived,
to Hood River. As mother acknowledged at oral argument
in this case, she did so in violation of the term of the judg-
ment requiring, in accordance with ORS 107.159, that either
party give notice to the other and to the court of any move
“more than sixty (60) miles further distant from the other
parent.”
Despite that violation, neither father nor the court
sought to remedy it at the time and, in the interim, the
court entered a number of orders that treated Hood River
as the primary residence of mother and the child. Several
years later, father initiated this proceeding in which he
requested an order directing the child “to move back to the
greater Portland area, such that [the child] attends school”
in father’s school district. In his declaration supporting the
motion and at the hearing, he clarified that he was seeking
to compel mother to move back to Portland with the child.
The trial court granted the requested relief and mother
appealed; on mother’s motion, the Appellate Commissioner
stayed the order requiring mother to move.
As noted, mother contends on appeal that the trial
court erred in entering the challenged order, arguing that
Cite as 306 Or App 555 (2020) 557
the court lacked authority to do so or, at a minimum, abused
its discretion. Lacking the benefit of briefing on the opposing
position, we decline to resolve the question of whether and
in what circumstances it might be permissible for a court to
order a custodial parent to move, although we note, as did
the Appellate Commissioner, that the court did not identify
any statutory authority for its order. One way or another,
the court’s order in this case exceeded any authority it
might have had. Under ORS 107.159(1), a parent need notify
the other parent and the court of a move only if it exceeds
60 miles. ORS 107.159(1); Slaughter and Harris, 292 Or App
687, 690, 425 P3d 770 (2018). A necessary implication of that
statute is that the legislature intended for parents to have
the latitude to make moves of 60 miles or less, unrestricted
by even a notice requirement. In view of that degree of relo-
cation freedom contemplated by the legislature, whatever
authority, if any, the court had to order mother to move, it
did not extend to ordering her to orbit father at a radius of
10 miles or less.
Supplemental judgment reversed and remanded.