Kaminski and Arand ( 2022 )

117
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted October 27, affirmed December 7, 2022
In the Matter of
Stacie Wiliams KAMINSKI,
aka Stacie Williams,
Petitioner-Respondent,
and
John Joseph ARAND,
Respondent-Appellant.
Clackamas County Circuit Court
19DR07027; A176694
Todd L. Van Rysselberghe, Judge.
Brent J. Goodfellow and Goodfellow Law filed the briefs
for appellant.
Elizabeth C. Savage and Karmel Savage, PC filed the
brief for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
JOYCE, J.
Affirmed.
118 Kaminski and Arand
JOYCE, J.
This appeal arises out of a dispute over child cus-
tody and parenting time. Under a prior judgment, mother
was awarded custody of the child and father had parent-
ing time under a parenting plan. Father filed a motion to
modify the parenting plan, followed shortly thereafter by
mother filing a motion to modify the parenting plan to allow
her to move from Oregon to Ohio with the parties’ minor
son. Father then filed a motion for modification of custody
if mother moved out of state. As relevant here, the trial
court granted mother’s request to move, and denied father’s
request to change custody and to modify the parenting plan
in light of mother’s intention to move from Oregon to Ohio.
Father appeals.
Father asks us to exercise our discretion to review
de novo, a standard reserved for “exceptional cases.” See
ORS 19.415(3)(b); ORAP 5.40(8)(c). We decline to do so.
Accordingly, on review of the denial of father’s motion to
change custody, we are bound by the trial court’s findings of
fact that are supported by any evidence in the record, and we
review its legal conclusions for errors of law. Slaughter and
Harris, 292 Or App 687, 688, 425 P3d 770 (2018). We review
the trial court’s denial of father’s request to change parent-
ing time first for legal error to determine “whether the trial
court applied the correct legal standard in making the chal-
lenged ‘best interests’ determination[.]” Finney-Chokey and
Chokey, 280 Or App 347, 360, 381 P3d 1015 (2016), rev den,
361 Or 100 (2017). We then review the court’s best-interests
determination itself for an abuse of discretion, and “we will
reverse only if [the] trial court’s discretionary determination
[was] not a legally permissible one.” Sjomeling v. Lasser, 251
Or App 172, 187, 285 P3d 1116, rev den, 353 Or 103 (2012).
FATHER’S MOTION TO CHANGE CUSTODY
A parent seeking to modify a custody judgment must
show both the existence of a substantial change in circum-
stances and, if such a change exists, that it would be in the
child’s best interests to change custody from the legal cus-
todian to the moving party. Colson and Peil, 183 Or App
12, 21, 51 P3d 607 (2002) (the party seeking the change of
Nonprecedential Memo Op: 323 Or App 117 (2022) 119
custody “[has] the burden to show that there [has] been a
substantial change of circumstances since the time of the
original custody award”); Slaughter, 292 Or App at 689.1
As particularly relevant here, a custodial parent’s reloca-
tion does not automatically constitute a change in circum-
stances; instead, we consider whether the record supports
the trial court’s determination that the relocation would
have a significant adverse effect on the custodial parent’s
“capacity to care for the child[ ].” Dillard and Dillard, 179 Or
App 24, 31-32, 39 P3d 230, rev den, 334 Or 491 (2002).
Here, the trial court denied father’s motion to modify
custody, concluding that father failed to prove that mother’s
contemplated move to Ohio would have significant adverse
effect on either parents’ capacity to care for the minor child
and thus did not constitute a change of circumstances. It
further concluded that it would not be in the child’s best
interests to change custody. We have reviewed the record
and the trial court’s findings, including its express credibil-
ity findings. We conclude that even if the move would have
constituted a substantial change of circumstances, the trial
court’s findings support its conclusions that changing cus-
tody to father would not be in the child’s best interests.
MOTHER’S MOTION TO MODIFY
PARENTING TIME
In contrast to a change of custody, a parent seeking
to modify a parenting plan need not demonstrate a substan-
tial change in circumstances; instead, the dispositive ques-
tion is the child’s best interests, as determined by evaluat-
ing the factors set forth in ORS 107.137(1). Sjomeling, 251 Or
App at 187-88. Having considered the trial court’s careful
evaluation of the ORS 107.137(1) factors, again including its
express credibility findings, we see no abuse of discretion.
Affirmed.
1
In contrast, if the question of relocation of a parent arises outside the con-
text of a modification, the court is required to consider only the best interest of
the child and the factors set forth in ORS 107.137(1). Stancliff and Stancliff, 320
Or App 369, 370, 513 P3d 20 (2022).