Gist and Gist ( 2024 )

346 November 20, 2024 No. 838
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Marriage of
Jason James GIST,
Petitioner-Appellant,
and
Jodie Anne GIST,
nka Jodie Ann Villasenor,
Respondent-Respondent.
Josephine County Circuit Court
20DR17265; A179662
Sarah E. McGlaughlin, Judge.
Submitted September 1, 2023.
Jason James Gist filed the brief pro se.
No appearance by respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Affirmed.
Nonprecedential Memo Op: 336 Or App 346 (2024) 347
POWERS, J.
In this domestic relations proceeding, father appeals
from a judgment awarding mother sole legal custody of their
two minor children arising out of his motion to modify a previ-
ous custody judgment. Advancing seven assignments of error,
father argues the trial court erred by (1) isolating one factor
of ORS 107.137 to the exclusion of other factors; (2) ruling that
father as a protective parent is guilty of parental alienation
without consideration of the facts; (3) denying the custody
claim without considering domestic violence as a relevant fac-
tor; (4) ruling that an illegal act can constitute a philosophical
belief; (5) ruling that the children be removed from the estab-
lished primary care taker, schooling, and social lives was in
the best interest of the children; (6) neglecting to rule fairly
and objectively and giving preference to mother for the sole
reason she is a mother; and (7) ruling without hearing testi-
mony, viewing relevant records, and entering in evidence vital
to the safety, wellbeing, and best interest of the children. After
reviewing the record, including the trial court’s findings, we
conclude that the court did not err. Accordingly, we affirm.
We set out only a limited recitation of the underlying
facts in this nonprecedential memorandum opinion because
the parties are familiar with the procedural and back-
ground facts. Married in 2013, the parties are the parents of
two minor children. In April 2021, the parties entered into
a stipulated dissolution judgment that awarded joint legal
custody of the two children to the parties. In January 2022,
father filed a combined Motion for an Order of Immediate
Danger and a Motion to Modify Custody and Parenting
Time. Thereafter, father demanded the court award sole
legal custody of the two minor children to him. The court
granted the motion ex parte, and the parties proceeded to a
hearing on whether to continue the immediate-danger order
and on father’s motion to change custody.
After taking evidence and hearing argument, the
trial court determined that father failed to prove by clear and
convincing evidence that mother was an immediate danger
to the children and dismissed the immediate-danger order.
The court then determined that there was a change of circum-
stances warranting a modification of the custody judgment.
348 Gist and Gist
The court discussed each of the ORS 107.137(1) factors to
determine the best interest of the children and ultimately
awarded sole legal custody to mother. The court later entered
a supplemental judgment that reiterated its findings and
conclusions.
On appeal, 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); see also ORAP 5.40(8)
(d) (identifying considerations, which are neither exclusive
nor binding, that can help decide whether to exercise de novo
review). Here, the trial court made sufficient findings for our
review and pointed to testimony in the record on which it relied.
Thus, we decline to engage in de novo review. Accordingly,
in reviewing a trial court’s decision on a motion to change
custody, we are bound by the court’s findings of fact that are
supported by any evidence in the record and review the court’s
legal conclusions for errors of law. Slaughter and Harris, 292
Or App 687, 688, 425 P3d 770 (2018). We then review the
trial court’s best-interests determination for an abuse of dis-
cretion, and we will reverse only if the 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); see also Espinoza v. Evergreen Helicopters, Inc., 359 Or
63, 117, 376 P3d 960 (2016) (explaining that a discretionary
determination is legally impermissible if it is “based on pred-
icate legal conclusions that are erroneous or predicate factual
determinations that lack sufficient evidentiary support”).
Here, the trial court dismissed the immediate-dan-
ger order and concluded that, based on circumstances, it
was in the best interests of the children to award mother
sole custody of the children. We have reviewed the record
and the trial court’s findings, including its express credi-
bility findings, and conclude that the court considered the
applicable factors and that the findings support its legal
conclusions. Further, having considered the trial court’s
evaluation of the ORS 107.137(1) factors, again including
its express credibility findings, we conclude that the court’s
decision was not outside the permissible range of choices in
making the best-interest determination.
Affirmed.