Unger v. McCormick ( 2023 )

543
This is a nonprecedential memorandum opinion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 14, affirmed August 16, 2023
Rebecca UNGER,
Petitioner-Respondent,
v.
Michael McCORMICK,
Respondent-Appellant.
Jackson County Circuit Court
18DR16401; A178376
Charles G. Kochlacs, Judge.
Jamie Hazlett argued the cause and filed the reply brief
for appellant. On the opening brief was Garrett Ramsey.
George W. Kelly argued the cause and filed the brief for
respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
JOYCE, J.
Affirmed.
544 Unger v. McCormick
JOYCE, J.
Father appeals from a supplemental judgment
regarding the custody, parenting time, and child support of
the nine-year-old child he shares with mother, raising three
assignments of error. We affirm.
Under a 2019 judgment, mother was awarded cus-
tody of the child and father had parenting time under the
parenting plan. At that time, the parties lived about four
hours away from each other. In April 2021, mother informed
father that she and her husband were planning to move
with the child to La Grande, about eight to nine hours away
from father’s home in southern Oregon. Mother filed a notice
of intent to change residence, and father filed a motion for
custody “in the event that [mother] continues to relocate,”
for an increase in parenting time, and for modification of
child support. After a hearing, the trial court denied father’s
motion for custody but granted father three additional weeks
of parenting time each summer. The court also set moth-
er’s income at zero for child support purposes but reduced
father’s income to account for the increased travel expenses
incurred as a result of mother’s relocation.
Substantial Change in Circumstances: Father’s first
assignment of error argues that the trial court erred in
determining that mother’s relocation was not a substantial
change in circumstances. A parent seeking to modify a cus-
tody judgment bears the burden to show both the existence
of a substantial change in circumstances since “the last
order affecting custody” and, if such a change exists, that it
would be in the child’s best interests to modify the custody
judgment in the way sought by the moving party. Boldt and
Boldt, 344 Or 1, 9, 176 P3d 388, cert den, 555 US 814 (2008).
Relocation of one parent constitutes a substantial change in
circumstances only when it has “a significant adverse effect
on one or both parents’ capacity to care for the children.”
Hamilton-Waller and Waller, 202 Or App 498, 507, 123 P3d
310 (2005). In reviewing the trial court’s custody determina-
tion, we are bound by the trial court’s findings of fact that
are supported by any evidence in the record, and we review
Nonprecedential Memo Op: 327 Or App 543 (2023) 545
its legal conclusions for errors of law.1 Slaughter and Harris,
292 Or App 687, 688, 425 P3d 770 (2018).
Here, the trial court determined that father did
not prove a substantial change in circumstances because,
although mother’s relocation increased the child’s commute,
father’s parenting time “remain[ed] largely intact,” and he
“was never involved in the day-to-day parenting time rou-
tine.” Having reviewed the record, keeping in mind the legal
principles and standards of review discussed above, we con-
clude that the trial court did not err.
Best Interests: In his second assignment of error,
father contends that the trial court erred in its best inter-
ests determination related to modifying the parenting plan;
in father’s view, the court failed to determine whether the
relocation was in the child’s best interests. See Fedorov and
Fedorov, 228 Or App 50, 62-63, 206 P3d 1124, rev den, 347
Or 42 (2009) (in the context of a dispute over the parent-
ing plan, “the dispositive question is whether the relocation
is in the best interests of the child”). Alternatively, father
appears to argue that the trial court abused its discretion in
finding that relocation was in the child’s best interests. We
review for legal error “whether the trial court applied the
correct legal standard in making the challenged ‘best inter-
ests’ 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). “[W]e will uphold
the trial court’s findings of facts if there is any evidence in
the record to support them[.]” Botofan-Miller and Miller, 365
Or 504, 505-06, 446 P3d 1280 (2019) (citation omitted). “[I]f
the trial court failed to articulate its factual findings on a
particular issue, we assume that the trial court decided the
facts in a manner consistent with its ultimate conclusions,
as long as there is evidence in the record * * * that would
support its conclusion.” Id. at 506.
1
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 because we are not persuaded that this is such a case.
546 Unger v. McCormick
Here, the trial court expressly found that it would
“be in the child’s overall best interest under the circum-
stances” to remain with her “custodial parent and primary
caregiver.” Mother’s husband testified that he had been
seeking employment for about nine months, withdrawing
from his retirement fund in the meantime, and that the
first job offer he received was in La Grande. Mother testi-
fied that with husband’s new salary and the housing mar-
ket in La Grande compared to southern Oregon, the family
could afford to live in a larger home in a nice neighborhood,
and she could stay home to care for the child and the child’s
infant sibling. As a result, we disagree with father’s asser-
tion that the court did not address the child’s best interests
and conclude that the trial court did not abuse its discretion
in finding that the move was in the child’s best interests.
Child Support: In his third assignment of error,
father challenges the trial court’s child support calculation.
As noted, the court set mother’s income at zero for child
support purposes but reduced father’s income to account for
the increased travel expenses incurred as a result of moth-
er’s relocation. We are bound by the trial court’s findings
of historical fact if they are supported by any evidence in
the record and review the court’s legal conclusions for errors
of law. Bock and Bock, 249 Or App 241, 242, 275 P3d 1006
(2012). In calculating child support, the court “may impute
potential income” to a parent whose actual income is less
than their potential income. OAR 137-050-0715(6)2 (empha-
sis added); see also Adams and Adams, 274 Or App 423,
427-28, 360 P3d 742 (2015) (describing the methodology for
determining a parent’s income). Here, the trial court set
mother’s income at zero “because that is her actual employ-
ment income, and the court considers she has a 1[-]year[-]old
and is pregnant.” Given that the trial court may—but is not
required to—impute potential income, that was not error.
Affirmed.
2
Until 2013, the rules required the court to apply a presumption that a per-
son’s income was potential income in certain circumstances, including when the
parent was unemployed. OAR 137-050-0715(6) (2012), amended by DOJ 3-2013,
DOJ 8-2016, DOJ 2-2020; see also 52 Or Bull 53 (June 1, 2013) (describing the
amendment as “adding more flexibility for using imputed and actual income”).