Stancliff and Stancliff ( 2022 )

369
Submitted January 12, reversed and remanded June 15, 2022
In the Matter of the Marriage of
Jarod STANCLIFF,
Petitioner-Appellant,
and
Heather STANCLIFF,
Respondent-Respondent.
Marion County Circuit Court
19DR04704; A174558
513 P3d 20
In this domestic relations case, father was awarded sole legal custody. On
appeal, he contends that the trial court abused its discretion in denying his
request to relocate with the children to Illinois. Mother did not file an appear-
ance. Held: The Court of Appeals concluded that the trial court failed to prop-
erly consider all the factors under ORS 107.137(1) in making its determination
whether or not relocation was in the children’s best interest. Specifically, the trial
court’s finding that there was no financial benefit if father relocated to Illinois
was unsupported by the evidence in the record; also, the trial court impermissi-
bly focused primarily on the geographic proximity of the parents to the exclusion
of other factors under ORS 107.137(1). The court reversed and remanded for the
trial court to reconsider father’s proposed relocation parenting plan in consider-
ation of all of the factors under ORS 107.137(1), and to determine what parenting
plan serves the children’s best interests.
Reversed and remanded.
Sean E. Armstrong, Judge.
Mark T. McLeod and McLeod & McLeod Attorneys at
Law filed the brief for appellant.
No appearance for respondent.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
JAMES, P. J.
Reversed and remanded.
370 Stancliff and Stancliff
JAMES, P. J.
In this domestic relations case, the court entered a
general judgment of dissolution and parenting time award-
ing father sole legal custody. On appeal from that judgment,
father contends that the trial court abused its discretion in
denying his request to relocate to Illinois and rejecting a
parenting plan that was based on father relocating. Mother
has not filed an appearance on appeal. For the reasons
that follow, we conclude that the trial court erred in deny-
ing father’s request to relocate, and we remand for the trial
court to reconsider that issue.
I. STANDARD OF REVIEW
Father requests that we exercise our discretion to
review this case de novo. ORAP 5.40(8). Father argues that
de novo review is warranted because the trial court’s find-
ings do not comport with the uncontroverted evidence about
how the children are better served by a move to Illinois or
how the move would promote the children’s long-term stabil-
ity and needed family support. Morgan and Morgan, 269 Or
App 156, 159, 344 P3d 81 (2015) (“[A] lower court’s reliance
on a crucial finding that ‘does not comport with the evidence
in the record’ can be a reason to exercise our discretion to
review de novo.”). Father argues that our exercise of de novo
review is important to the ruling of the trial court because a
proper weighing of the evidence justifies reversing or modi-
fying the trial court’s ruling.
We decline to exercise our discretion to review the
court’s factual findings de novo. Instead, we defer to the
court’s implicit and explicit factual findings if they are sup-
ported by evidence in the record. (However, as discussed
later, we agree with father that some of the court’s factual
findings were not supported by evidence in the record.)
In denying father’s request to relocate to Illinois,
the court was required to consider only the “best interests
of the child” standard and the factors under ORS 107.137(1),
as directed by our case law. Cooksey and Cooksey, 203 Or
App 157, 165-66, 125 P3d 57 (2005). Father argues both that
the trial court erred in its application of that legal stan-
dard by not taking into account certain required factors in
Cite as 320 Or App 369 (2022) 371
denying the request for relocation and that, even if the court
correctly applied the standard, it abused its discretion in
determining that relocation did not serve the children’s best
interest. Those challenges implicate different standards of
review.
First, whether the trial court applied the correct
legal standard in making the challenged “best interests”
determination presents a question of law that we review
for legal error. Second, if we determine that the trial court
applied the correct legal standard, we review the court’s “best
interests” determination for abuse of discretion. Sjomeling
v. Lasser, 251 Or App 172, 187-88, 285 P3d 1116, rev den,
353 Or 103 (2012). Under that standard, we must uphold the
trial court’s decision unless it exercises its discretion “in a
manner that is unjustified by, and clearly against, reason
and evidence.” Forsi v. Hildahl, 194 Or App 648, 652, 96 P3d
852 (2004), rev den, 338 Or 124 (2005).
II. FACTUAL AND PROCEDURAL BACKGROUND
We focus on the evidence and arguments related
to the issue of relocation and the trial court’s findings that
led to its conclusion to deny father’s request to relocate to
Illinois. Much of the evidence was undisputed; however, to
the extent there were conflicts in the parties’ versions of the
facts, we recite the facts consistently with the court’s ruling
or otherwise note the factual dispute.
Father and mother met online through several
mutual friends in 2010. At that time, father was living with
his parents in Illinois, and mother was living in Oregon. The
following summer, father helped mother move to Illinois,
found her a job, and got her set up with an apartment. After
that, they began a relationship and eventually married in
2012.
In September 2013, the parents moved from Illinois
to Corvallis, Oregon, with the expectation that father’s
transfer would open up an opportunity within his new com-
pany within six months of the transfer. That opportunity
did not materialize, and the parents’ financial troubles
required them to move in with mother’s parents, who lived in
Pendleton. During that time, the parents’ first minor child,
372 Stancliff and Stancliff
K, was born in July 2014. Parents agreed that mother would
be a stay-at-home mom. There is no dispute that mother was
very attentive and caring to K in his infancy, and father had
no concerns regarding her parenting.
In 2015, seeking better job opportunities, the family
moved to Albany, Oregon, where father began working for
a sporting goods company. In September 2016, the parents’
second child, V, was born. Then, in September 2017, father
was offered a promotion, but it required the family to move
to Klamath Falls. Initially, father was going to turn down
the offer because he was concerned about moving mother
away from her family who lived nearby. Ultimately, the par-
ents agreed that the increase in financial support was in the
families’ best interest despite knowing it would be a more
stressful job for father.
After moving to Klamath Falls, mother’s mental
and physical health declined, and the parents were strug-
gling in their marriage. Father took three months of medi-
cal leave to focus on saving the marriage and assumed more
parenting responsibilities while mother was struggling with
her health. In July 2018, a week before father’s medical leave
expired, mother decided to move out and sought counseling
and therapy services while living with her parents. Father
later learned that, before moving out, mother had attempted
to kill herself by driving recklessly. The children were not
in the car at the time, but father believed that mother’s
behavior might nevertheless present a risk of harm to the
children.
In March 2019, father filed a simultaneous petition
for dissolution of marriage and a motion for emergency cus-
tody based upon an immediate danger to the children. By
this time, the children had been residing with father full
time since July 2018. During a hearing on March 19, father
expressed concerns that mother presented a danger to the
children based upon multiple attempts to take her own life
and negligent acts presenting a risk to the children when
they were in her care. Mother appeared pro se and admitted
to a recent suicide attempt by overdosing on pills but stated
that she was nowhere near the children when it happened.
The trial court granted the immediate danger request
Cite as 320 Or App 369 (2022) 373
and awarded no parenting time to mother until further
order.
After mother retained counsel, father and mother
agreed in April 2019 to the court’s entry of a stipulated tem-
porary parenting order that required mother’s parenting
time to be supervised by father or by an adult in mother’s
family. Mother was given a minimum of four days of parent-
ing time per week including from 8:00 a.m. to 7:00 p.m. on
Saturdays and Sundays and then Tuesdays and Thursdays
after father returned from work. Mother saw the children
regularly.
In September 2019, father and the children moved
to their own home in Stayton and, around the same time,
mother moved 20 miles away to Mill City, where she found
a job at a convenience store. In October 2019, mother was in
a car accident and her license was suspended because she
was driving without insurance. Thereafter, mother’s parent-
ing time dropped significantly, partially due to her inabil-
ity to drive and her own family’s decreasing willingness to
provide supervision and transportation related to her par-
enting time. When mother was not able to get supervision,
father refused to bring the children to her mother’s house,
five minutes from father’s home, even when mother offered
gas money to father.1 According to the parenting plan, moth-
er’s parenting time could take place in father’s home, but
mother stated that she did not want to have parenting time
with father supervising because she felt uncomfortable.
The custody trial was held in February 2020. The
issues at the hearing were custody, parenting time, and
child support, and one of the key questions was whether
father should be allowed to relocate to Illinois if he were to
be granted custody. In requesting to relocate, father argued
that he was from Illinois and reliant on his extended family
in Illinois for his and the children’s living expenses. Between
his parents and his brother, he received $775 a month in
assistance. At the time of trial, father and the children
were in an unstable economic situation. It was undisputed
1
As described later, the trial court explicitly found mother credible regard-
ing her struggles to obtain parenting time. 320 Or App at 376. We defer to that
finding.
374 Stancliff and Stancliff
that mother’s family had pulled back from providing
childcare—from five days to three—and then finally removed
all support. And, father testified, in the four months preced-
ing trial, mother had had only exercised seven percent of
her parenting time—an estimated 32 hours out of 445 hours
available according to the temporary stipulated parenting
plan entered in April 2019.
Father testified that, if he were to move back to
Illinois, his parents were willing to offer rent that would be
half the cost of his current rental and he would be able to
halve his utilities costs. He also pointed to evidence that his
mother, brother, and sister-in-law all worked part-time and
were willing to help with childcare, possibly eliminating his
childcare costs. Further, father’s parents were willing to
direct the $400 per month that they were sending to father
toward tuition for K for a private school affiliated with the
church where father’s parents worked.
Father explained that he wanted to move because
he could rely on his family support overall—financially and
otherwise—in a way that he no longer received from moth-
er’s family. Father also reiterated that he would waive child
support if he relocated in order to allow mother to become
more stable financially and also to allow her to use the extra
money for transportation costs related to a long-distance
parenting plan.
In closing arguments, father contended that mother
should receive significant parenting time but that it was in
the children’s best interest to have the extensive family sup-
port he would receive from his parents and his extended fam-
ily with childcare, lower housing and utility costs, Illinois’s
lower cost of living, and the ability to have the consistent
and reliable emotional and physical support of his family.
Father emphasized that, under the case law, the primary
caretaker’s need for stability and resources to stabilize both
current and long-term needs of the children is a primary
consideration in the best interest determination, even when
it negatively affects a noncustodial parent’s parenting time.
Father argued that the children needed the type of reliabil-
ity and stability offered by the paternal extended family,
Cite as 320 Or App 369 (2022) 375
and that the relationship between mother and children was
still in flux.
Mother, in closing, reiterated that father should not
be permitted to move and that she should have unsupervised
time with her children. She asserted that she was willing to
pay child support and had been willing in the past, but that
father turned down her offer. She argued that her current
circumstances would make it easier for her to be available
for the children and that she would “like for these children
to have a way where they are here.”
After closing arguments, the court made an oral
ruling from the bench:
“I’m going to order custody to [father]. I’m going to make a
couple of observations.
“First, I’ve considered all the factors under ORS 107.137.
You, [mother] were the primary parent for the majority of
the children’s lives up to July 2018 * * * but I understand
why you left the children with him in July of 2018. * * * It
sounds to me from [mother’s] testimony today that you’re
doing significantly better. * * * So [mother’s] parenting plan
is going to be every other weekend for right now. It’s going
to start on Friday and end on Sunday; so if in Beaverton
5pm Friday and 5pm Sunday; first weekend supervised
and then unsupervised after that.”
After outlining a parenting plan that implicitly rejected
father’s request for relocation, the court opined:
“With regard to the relocation, [father], I don’t think
your financial problems are going to be solved by relocat-
ing. As I hear the evidence today and I look at this chart
you’ve prepared, you both have had financial struggles
for the entire time that you’ve been trying to be a family
together, and frankly, [mother] living in Beaverton even
makes this more difficult, because if you lived here, you’d
be able to have more parenting time and participate more,
but when you live up there, you don’t have the ability to do
that.
“So taking into account the daycare expenses that
[father] incurs, I get child support of $506 a month. That
will address the budget shortfall that you’ve got in your
exhibit. That will give you more money net than you would
376 Stancliff and Stancliff
make if you made $10 an hour in Illinois, and a little bit
less than if you made $14 an hour, but you don’t have a job
yet so it’s a little speculative about what your income would
be if you were allowed to move.
“I understand that you would have a family support
network there. I totally get it. It’s instinct for you to try
to go back and do that. Your experience with her, at least
in the short-term, from your perspective, hasn’t been good,
although as I look at the order, one of your jobs as the cus-
todial parent is to be willing and able to facilitate a mean-
ingful relationship with the noncustodial parent.
“I find [mother’s] testimony, that she’s had some strug-
gles getting her parenting time, credible. As I look at this
chart, [father’s] behavior was a little bit draconian in terms
of managing that. I think [father] did the best you could,
which is not bad, but letting you move with the children
to Illinois doesn’t solve anybody’s problems in terms of her
having a meaningful relationship with the children.
“The other thing is there’s nothing in [father’s] plan
about handling transportation costs, and if [paternal
grandparents] parents are willing to subsidize school costs
there, then they should be willing to subsidize them here.
So I cannot see the workability of your financial proposal in
terms of those considerations.”
Subsequently, the court entered a general judgment
of marital dissolution, custody, and parenting time that
memorialized the court’s findings and orders. As relevant to
the court’s custody and relocation determination, the court
made the following written finding in its judgment:
“12. Pursuant to ORS 107.137, the Court finds that it
is in the minor children’s best interests that [father] be
granted sole custody. Specifically, under the enumerated
factors, the Court finds: (1) the minor children have close
and strong relationships with each parent, although since
separation they has been strongest with [father] given
[mother’s] absences from caring for the children, (2) the
minor children have close and strong relationships with
family members from both sides of the family, (3) the minor
children were more principally cared for by Father during
the history of the parties’ relationship, and the children
became accustomed to Father providing their primary care
from 2018 going forward, (4) Father showed and devoted
Cite as 320 Or App 369 (2022) 377
more time over the course of time to caregiving for the
minor children, (5) Father structured his life around pro-
viding primary care for the minor children, and (6) both
parents showed strong interest and attitude in the minor
children’s best interest. The Court finds that Father, though
granted sole custody, may not move from the state of Oregon
because (1) Father and Mother moved to and chose to reside
in Oregon, and (2) allowing a move could potentially inter-
rupt parenting time between Mother, as non-custodial par-
ent, and the children in the event Mom fully and consistently
exercises her parenting time under the ordered parenting
plan.”
(Emphasis added.)
Father appeals that judgment and assigns error to
the court’s order denying his request to relocate and related
parenting plan.
III. DISCUSSION
We turn to the merits of father’s contentions. When
a trial court is charged with determining whether a child
may move with one parent to a new location, “the court may
consider only the best interests of the child and the safety
of the parties.” Cooksey, 203 Or App at 167. In this case,
the sole matter in dispute is whether K and V were “better
served” by relocating to Illinois. Id. In resolving that dis-
pute, the court is required to apply the same legal standard
that governs the “best interests” determinations in custody
cases, ORS 107.137(1). Id. at 166-67.
ORS 107.137(1) provides that the trial court “shall”
consider:
“(a) The emotional ties between the child and other
family members;
“(b) The interest of the parents in and attitude toward
the child;
“(c) The desirability of continuing an existing relation-
ship;
“(d) The abuse of one parent by the other;
“(e) The preference for the primary caregiver of the
child, if the caregiver is deemed fit by the court; and
378 Stancliff and Stancliff
“(f) The willingness and ability of each parent to facil-
itate and encourage a close and continuing relationship
between the other parent and the child.”
In determining whether relocation is in the chil-
dren’s best interests, a court must consider all of the rele-
vant factors in ORS 107.137(1), bearing in mind that no one
factor is dispositive. Sjomeling, 251 Or App at 188. Further,
the court’s best interests determination must also consider
the legislative directive to promote strong relationships
between children and their noncustodial parents. See id.
at 189 (noting legislative directive to promote and encour-
age “extensive contact” between parents and their children
and joint parental responsibility for the welfare of children
where practicable).
Here, father argues that the court failed to properly
apply the “best interests” standard in denying the reloca-
tion parenting plan. Specifically, father argues that the trial
court legally erred because it did not consider all the rele-
vant factors under ORS 107.137(1)(a) through (f) in making
its best interest determination. Rather, father contends, the
court focused primarily on factor (f) related to the court’s
assessment of father’s willingness and ability to facilitate a
meaningful relationship between mother and the children,
to the exclusion of other factors that would serve the father
and the children’s stability and best interests.
As we explain below, we agree with father that the
trial court erred in failing to appropriately consider all the
factors under ORS 137.107(1) and reached its determination
based on factual findings that are not supported by evidence
in the record.
We have previously noted that “relocation cases” are
“among the most difficult cases that the courts are called
upon to decide.” Hamilton-Waller and Waller, 202 Or App
498, 501-02, 123 P3d 310 (2005). “It is difficult to formulate
a legal test to govern when it is appropriate to allow a cus-
todial parent to move with a child,” and it is “also hard to
apply a standard formula to this type of case because there
are numerous competing interests and issues and so many
variations in particular circumstances.” Id. at 501. “The cus-
todial parent has an interest in moving on with his or her
Cite as 320 Or App 369 (2022) 379
life and, when finances or personal relationships make it
desirable to move, in being able to move, as well as an inter-
est in making important decisions regarding the children,
such as where they are going to live,” but noncustodial par-
ents have an interest in having the opportunity to maintain
a meaningful relationship with their children and having
reasonable access to and time with the children to maintain
that relationship. Id. And, “perhaps of most importance, the
children have an interest in having a situation that allows
the optimum relationship with each parent under the cir-
cumstances and is in their overall best interests.” Id. (citing
ORS 107.137(1) (primary consideration in custody determi-
nations is best interests of the children)).2
We have repeatedly noted that no one factor under
ORS 107.137(1) prevails and that a court must assess all the
required statutory considerations and weigh the pertinent
considerations in determining what serves the children’s
best interests. See, e.g., Sjomeling, 251 Or App at 192 (con-
cluding that the trial court’s determination that the sta-
bility and employment of the primary custodial parent is a
critical piece of a child’s success that outweighed the cost of
relocation that would alter the children’s time with father,
the noncustodial parent).
In Davison v. Schafer, we explained that the custo-
dial parent’s decision to move was not a proper consideration
2
For reasons similar to those we discussed in Hamilton-Waller, this is an
area that may well benefit from additional legislative guidance as to the factors
that are appropriately considered in the context of relocation. See, e.g., Linda
D. Elrod, Current Trends in Custody Relocation 10-11 (written materials from
ABA Council of Appellate Staff Attorneys Seminar, July 30, 2005; on file with
Professor Elrod at Washburn University) (setting out 10 different factors to con-
sider related to relocation, as well as eight additional factors specifically related
to the child’s best interest in that circumstance). See also Hamilton-Waller, 202
Or App at 501 n 3 (“The struggle to find the best approach to ‘move away’ cases
is not limited to Oregon or to the judicial arena. E.g., Ciesluk and Ciesluk, 113
P3d 135 (Colo 2005); Bates v. Tesar, 81 SW3d 411 (Tex App 2002); Baures v.
Lewis, 167 NJ 91, 770 A2d 214 (2001); Ireland v. Ireland, 246 Conn 413, 717 A2d
676 (1998); Burgess v. Burgess, 13 Cal 4th 25, 51 Cal Rptr 2d 444, 913 P2d 473(1996); Tropea v. Tropea, 87 NY2d 727, 642 NYS2d 575, 665 NE2d 145 (1996);
Arthur B. LaFrance, Child Custody and Relocation: A Constitutional Perspective,
34 U Louisville J Fam L 1 (1996) (reviewing in detail how child custody relocation
cases have been analyzed nationally and suggesting that courts should place
more emphasis on the constitutional rights of custodial parents to move); Carol
S. Bruch and Janet M. Bowermaster, The Relocation of Children and Custodial
Parents: Public Policy, Past and Present, 30 Fam L Q 245 (1996)).”
380 Stancliff and Stancliff
in the best-interest analysis of what parenting plan best
served the children’s interest. 308 Or App 513, 519, 479 P3d
1108 (2021). We explained that
“parents sometimes relocate * * * and a move is not itself
inherently problematic. See, e.g., Finney-Chokey and
Chokey, 280 Or App 347, 363-64, 381 P3d 1015 (2016) (ben-
efits to child of move to United Kingdom outweighed dam-
age to relationship with father); Kness and Kness, 281 Or
App 577, 581, 383 P3d 971 (2016) (mother’s role as primary
caregiver and child’s close relationship with stepfather
weighed in favor of mother’s request to move from Klamath
Falls, where father lived, to Medford because stepfather
relocated to Medford).”
Id. at 520-21.
We further explained in Davison that a court may
consider lifestyle choices, including a decision to move, in
the best-interests analysis “ ‘only if [those choices] will or
may cause damage to the child.’ Miller and Miller, 269 Or
App 436, 443, 345 P3d 472 (2015) (emphasis in original).”
308 Or App at 520. In Miller, we opined that the fact that
“a parent’s lifestyle choices make coparenting with the
noncustodial parent more difficult” is not relevant to the
determination of “damage” to a child. 269 Or App at 444.
Specifically, the logistical difficulty resulting from a move
“is a circumstance that is true for every noncustodial parent
where the father and mother do not live in close proximity,
and it is not a circumstance, in and of itself, that bears on
whether the custodial parent is willing and able to foster a
positive relationship with the noncustodial parent.” Id. at
446. Thus, in Miller, we rejected the trial court’s consider-
ation of the mother’s move 15 miles away from the father
as part of the best-interests analysis in making its custody
determination.
In this case, we agree with father that the court
erred by looking only at the effect that father’s relocation
would have on mother’s parenting time and by discounting
the benefits to the children as a result of father’s relocation
to Illinois. In the judgment, the court stated that it had con-
sidered all the factors under ORS 107.137 in reaching its
custody decision, but the court did not explain whether or
how those same factors might bear on the court’s decision
Cite as 320 Or App 369 (2022) 381
regarding relocation and parenting time. On that issue,
the court focused on just two factors: that “(1) Father
and Mother moved to and chose to reside in Oregon, and
(2) allowing a move could potentially interrupt parenting
time between Mother, as non-custodial parent, and the chil-
dren in the event Mom fully and consistently exercises her
parenting time under the ordered parenting plan.”
As our case law explains, those factors cannot be
considered in isolation to determine parenting time. The
court, however, appears to have given undue weight to main-
taining geographic proximity of the parents, based, in part,
on an unsupported factual finding: that relocation would not
improve financial stability for father and the children or pro-
vide different educational opportunities. In its oral findings,
the court stated, “I don’t think your financial problems are
going to be solved by relocating” and suggested that because
father’s family was “willing to subsidize school costs there
[in Illinois], then they should be willing to subsidize them
here.” Although it may have been true that father’s finan-
cial problems would not be “solved,” the only evidence in the
record on that topic is that father’s financial and other fam-
ily support would be improved by a move to Illinois, where he
had more childcare options and more financial support. To
the extent that the court found that father’s family “should
be willing” to subsidize school expenses in Oregon, there is
no evidence in the record on that point; the only evidence
about father’s family paying for school concerned a school
associated with the church where both of father’s parents
worked.3
In light of those unsupported factual determina-
tions regarding the lack of any benefits of relocation, and the
lack of any explanation of other factors relating to relocation,
we conclude that the court impermissibly focused on the
geographic proximity of the parents, which we have repeat-
edly stated should not be determinative in and of itself. See
Slaughter and Harris, 292 Or App 687, 692, 425 P3d 770
(2018) (reiterating that point and citing Duckett and stating
3
We also note that, to the extent the court found that “there’s nothing in
[father’s] plan about handling transportation costs,” father had testified that he
was willing to waive child support in order for mother to have more financial
stability and to aid in paying for transportation costs.
382 Stancliff and Stancliff
that, “[i]f maintaining a close geographic relationship with
both parents were controlling, no primary parent would be
allowed to move away over the objection of the other parent
without losing custody of the child.” (Emphasis in original.)).
Accordingly, we reverse and remand for the court to recon-
sider father’s proposed relocation parenting plan in consid-
eration of all the factors under ORS 107.137(1), to determine
what parenting plan serves the children’s best interests.4
Reversed and remanded.
4
We recognize that the trial took place in 2020 and that much may have
changed since then with regard to the parents’ and children’s circumstances. Our
decision should not be understood to foreclose additional arguments or evidence
that account for the parties’ current circumstances in developing a parenting
plan based on the children’s best interests.