In Re the Marriage of Padbury

612 P.2d 321 (1980) 46 Or.App. 533

In the Matter of the MARRIAGE of Karen Eleanor PADBURY, Appellant, and
Charles Thomas Padbury, Respondent.

No. D-10639; CA 16240.

Court of Appeals of Oregon.

Argued and Submitted April 25, 1980. Decided June 9, 1980.

Jeffrey D. Sapiro, Portland, argued the cause for appellant. On the brief were Lyle Banton and Banton & Fulkerson, P.C., Portland.

Lewis B. Hampton, Portland, argued the cause for respondent. With him on the brief was Bolliger, Hampton & Tarlow, P.C., Portland.

Before RICHARDSON, P.J., and THORNTON and BUTTLER, JJ.

BUTTLER, Judge.

Mother appeals the modification of decree entered by the trial court changing custody of the parties' 14-year-old son from mother to father. We reverse.

Pursuant to the original dissolution decree of August 12, 1977, mother was awarded custody of the parties' three children. Shortly after that decree was entered mother remarried and moved with the children to Butte, Montana. Almost immediately thereafter, father sought and obtained a modification of the visitation provisions of the decree based upon the move to Butte; he obtained extended visitations at Christmas, spring break and during the summer.

It was during the 1979 summer visit that this motion to modify was filed seeking custody of the middle child, Burke.^[1] The motion was supported by affidavits of father and son indicating that Burke wanted to live with his father. Father also alleged that he had remarried and is able to care for his son.

All of the evidence indicates that both mother and father are loving parents who have excellent homes and family lives. Burke does very well in school, is involved in scouting and church-related activities and has a part-time job. He loves both of his parents. He has friends in both Oregon and Montana. He gets along well with his siblings and with his stepfather. His relationship with his stepmother and her children from a previous marriage is apparently not as well developed, but is satisfactory.

The trial court found that there was a substantial change of circumstances in: (1) the move to Montana; (2) the fact that Burke is two years older; and (3) the fact that Burke has formed a desire to live with his father. The court found it would be in the best interests of the child to live with his father and ordered a change of custody. The effect of the order was stayed pending appeal.

Although we review de novo, we give substantial weight to the findings of the trial court, particularly where child custody is involved. Strom and Strom, 37 Or. App. 767, 590 P.2d 238 (1978); Starin and Starin, 29 Or. App. 557, 564 P.2d 748, rev. den. (1977).

The parent seeking a change of custody must show both a substantial change of circumstances and that a modification would be in the best interests of the child. Strom and Strom, supra, 37 Or. App. at 770, 590 P.2d 238; Remillard and Remillard, 30 Or. App. 1111, 569 P.2d 651 (1977).

The change of circumstances required for a change of custody is a change "relevant to the capacity of the plaintiff or the custodial parent to properly take care of the child." Greisamer and Greisamer, 276 Or. 397, 400, 555 P.2d 28 (1976). It must be a change which was not contemplated at the time of the original decree, Delf and Delf, 19 Or. App. 439, 528 P.2d 96 (1974), which has occurred since the last custody order and would enhance or have an adverse impact on the welfare of the child. Henrickson v. Henrickson, 225 Or. 398, 358 P.2d 507 (1961); Niedert and Niedert, 28 Or. App. 309, 559 P.2d 515, rev. den. (1977); Scott and Scott, 31 Or. App. 975, 571 P.2d 1281 (1977).

Looking at the underlying facts, which are not in dispute, we do not find a change of circumstances since the last modification which would justify changing custody. Obviously the fact that Burke is two years older is not a change which was not contemplated at the time of the original decree or the last modification; neither has it been shown that his increased age has affected the ability of either parent to care for him.

The move to Butte was apparently not contemplated at the time of the original decree, but a move by the custodial parent is not a change in circumstances justifying a change in custody unless shown to be detrimental to the child. Wolff v. Wolff, 25 Or. App. 739, 550 P.2d 1388 (1976). Aside from Burke's testimony that he likes Oregon better than Montana, there was no showing of detrimental effects from the move. Furthermore, the move had taken place prior to the last modification; in fact, it was the basis therefor. Father has remarried, but remarriage by itself is not sufficient to justify a change of custody. Henrickson v. Henrickson, supra; Niedert and Niedert, supra; King v. King, 10 Or. App. 324, 500 P.2d 267 (1972).

The trial court's decision seems to rely most heavily upon the fact that Burke has expressed a desire to live with his father. The preference of the child is one factor to be considered in determining which custodial arrangement will be in the best interests of the child, Tingen v. Tingen, 251 Or. 458, 446 P.2d 185 (1968), but in the absence of other facts, that preference does not constitute a change of circumstances. Accordingly, we conclude, as we did in Wolff v. Wolff, supra, that

"[h]ere the initial change of circumstances has not been demonstrated and the child['s] statements indicated no detrimental effect from living with [the custodial parent]." 25 Or. App. at 742, 550 P.2d at 1390.

There is no basis for changing the custody of Burke, and the motion to modify the decree should have been denied.

Reversed. Costs to appellant.

NOTES

[1] After the 1978 summer visit father sought a change of custody for the oldest son, Craig, based upon the expressed preference of the son to live with his father. However, after returning to Montana pending a hearing Craig decided he wanted to remain in Montana and the parties stipulated to the dismissal of that proceeding.