In re the Custody of M. T.

238 P.3d 1003, 237 Or. App. 192, 2010 Ore. App. LEXIS 1008, 2010 WL 3419681
CourtCourt of Appeals of Oregon
DecidedSeptember 1, 2010
Docket04P2393; A143240
StatusPublished
Cited by15 cases

This text of 238 P.3d 1003 (In re the Custody of M. T.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Custody of M. T., 238 P.3d 1003, 237 Or. App. 192, 2010 Ore. App. LEXIS 1008, 2010 WL 3419681 (Or. Ct. App. 2010).

Opinion

DUNCAN, J.

Mother appeals a supplemental judgment changing custody of the parties’ daughter, M, from mother to father.1 On appeal, mother contends that the trial court erred in its custody determination because father had not demonstrated the requisite substantial change in circumstances and that, even if he had, a change in custody was not in M’s best interests. For reasons that we will explain, even assuming that father demonstrated that there had been a substantial change in circumstances, on de novo review, ORS 19.415(3)(b), father did not establish that a change in custody was in M’s best interests. Accordingly, we reverse and remand.

Before turning to the facts of this case, we begin by identifying our standard of review. Historically, in domestic relations cases, we have reviewed the facts de novo pursuant to prior versions of ORS 19.415(3). See, e.g., Hamilton-Waller and Waller, 202 Or App 498, 123 P3d 310 (2005) (reviewing the facts de novo in a domestic relations case involving a change in custody). “In other words, we independently assessed and evaluated the evidence and reweighed the facts and reassessed the persuasive force of the evidence.” DHS v. Three Affiliated Tribes of Fort Berthold, 236 Or App 535, 538, 238 P3d 40 (2010) (internal quotation marks, brackets, and citations omitted). In 2009, however, the legislature changed our standard of review by amending ORS 19.415.2

Currently, ORS 19.415(3) provides, in part:

“Upon an appeal in an equitable action or proceeding, review by the Court of Appeals shall be as follows:
“* * * * *
“(b) Upon an appeal in an equitable action or proceeding other than an appeal from a judgment in a proceeding for the termination of parental rights, the Court of Appeals, [195]*195acting in its sole discretion, may try the cause anew upon the record or make one or more factual findings anew upon the record.”

Pursuant to ORS 19.415(3)(b), because this case does not concern the termination of parental rights, we do not need to review de novo but have discretion to do so.

As we explained in Three Affiliated Tribes of Fort Berthold, “[o]ur decision whether to exercise that discretion is governed by a temporary amendment to ORAP 5.40 that is embodied in Chief Judge Order 09-06.”3 236 Or App at 539. In particular, ORAP 5.40 provides, in part:

“The appellant’s opening brief shall open with a clear and concise statement of the case, which shall set forth in the following order under separate headings:
“(8)(a) In those proceedings in which the Court of Appeals has discretion to try the cause anew on the record and the appellant seeks to have the court exercise that discretion, the appellant shall concisely state the reasons why the court should do so.
“(b) In those proceedings in which the Court of Appeals has discretion to make one or more factual findings anew on the record and the appellant seeks to have the court exercise that discretion, the appellant shall identify with particularity the factual findings that the appellant seeks to have the court find anew on the record and shall concisely state the reasons why the court should do so.
“(c) The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases. Consistently with that presumption against the exercise of discretion, requests under paragraph (a) or (b) of this section are disfavored.”

(Footnote omitted.)

[196]*196“To summarize, ORAP 5.40(8)(a) and (b) require that, if an appellant seeks to have us exercise our discretion to review de novo, the appellant must include a concise statement explaining the reasons why we should do so in its statement of the case in the opening brief.” Three Affiliated Tribes of Fort Berthold, 236 Or App at 540. In light of that request, our decision whether to exercise discretion is guided by the nonexclusive list of considerations stated in ORAP 5.40(8)(d), which provides:

“The Court of Appeals considers the items set out below to be relevant to the decision whether or not to exercise its discretion to try the cause anew on the record or make one or more factual findings anew on the record. These considerations, which are neither exclusive nor binding, are published to inform and assist the bar and the public.
“(i) Whether the trial court made express factual findings, including demeanor-based credibility findings.
“(ii) Whether the trial court’s decision comports with its express factual findings or with uncontroverted evidence in the record.
“(iii) Whether the trial court was specifically alerted to a disputed factual matter and the importance of that disputed factual matter to the trial court’s ultimate disposition of the case or to the assignment(s) of error raised on appeal.
“(iv) Whether the factual finding(s) that the appellant requests the court find anew is important to the trial court’s ruling that is at issue on appeal (i.e., whether an appellate determination of the facts in appellant’s favor would likely provide a basis for reversing or modifying the trial court’s ruling).
“(v) Whether the trial court made an erroneous legal ruling, reversal or modification of which would substantially alter the admissible contents of the record {e.g., a ruling on the admissibility of evidence), and determination of factual issues on the altered record in the Court of Appeals, rather than remand to the trial court for reconsideration, would be judicially efficient.”

Nevertheless, a presumption exists “against the exercise of discretion” and we will exercise it “only in exceptional cases.” ORAP 5.40(8)(c).

[197]*197In her opening brief in this case, mother requests that we review de novo. Our understanding is that mother requests that we exercise our discretion to review de novo because the trial court’s judgment does not demonstrate that, in determining the best interests of M, the court considered the relevant statutory factors set out in ORS 107.137, the text of which is set out below. 237 Or App at 202-03.4 In deciding whether to exercise our discretion to review de novo

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Cite This Page — Counsel Stack

Bluebook (online)
238 P.3d 1003, 237 Or. App. 192, 2010 Ore. App. LEXIS 1008, 2010 WL 3419681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-custody-of-m-t-orctapp-2010.