In re the Marriage of Hansen

616 P.2d 567, 48 Or. App. 193, 1980 Ore. App. LEXIS 3438
CourtCourt of Appeals of Oregon
DecidedSeptember 8, 1980
DocketNo. 75-5333, CA 17107
StatusPublished
Cited by7 cases

This text of 616 P.2d 567 (In re the Marriage of Hansen) 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 Marriage of Hansen, 616 P.2d 567, 48 Or. App. 193, 1980 Ore. App. LEXIS 3438 (Or. Ct. App. 1980).

Opinions

GILLETTE, P. J.

Mother appeals from an order of the trial comb changing custody of the parties’ two minor children from mother to father. Mother asserts that father failed to establish a change of circumstances justifying the change in custody and that the trial court denied mother her right to counsel. We reverse and remand.

It is necessary to detail many of the facts in this case. They are as follows.

The decree of dissolution was entered on January 19,1977, and awarded custody of the parties’ two minor daughters, then aged six and two and a half, to the mother. Father was given the "right to reasonable visitation,” which was specifically set forth as the right to visit the children two Saturdays a month for the first six months, after which he would have the right to visit one weekend per month. He was also given the right to visit the children for one week during the summer, three days during Easter vacation and three days between Christmas and the New Year’s holiday, beginning in 1978. He was to give a specific amount of notice before each visit. The progression in the amount of visiting time was to allow father to get to know the children, particularly the younger daughter who had been only a few months old when father moved out of the family home.

In September, 1979, father filed two motions, one to show cause why mother should not be held in contempt of comb for failing to allow the father reasonable visitations with the children, and the other to show cause why the original decree should not be modified to change custody from mother to father.

After receiving the show cause orders, mother retained an attorney.1 Mother’s attorney and father’s [196]*196attorney signed a stipulated order on behalf of their clients removing the motions, which had been set for hearing, from the trial docket, and providing that the motions could be reset at the request of either party.

On December 11, 1979, father filed a supplemental affidavit saying he had allowed the matters to be taken off the docket because he had been assured that he would be allowed his visitation rights and detailing mother’s subsequent lack of cooperation in this regard. At the request of father’s attorney, the show cause orders were placed back on the trial docket for January 17, 1980.

On December 20, 1979, mother’s attorney filed notice that he had withdrawn from the attorney-client relationship. On January 4, 1980, Judge Roland K. Rodman, responding to an inquiry from mother, wrote advising her of the date and time of the hearing, and further stating, "[i]f you are not going to have * * * [the withdrawn attorney] represent you further, I suggest you retain other counsel to appear with you on the 17th.”

Mother appeared at calendar call on the morning of the trial date unrepresented by counsel. She responded affirmatively to the judge’s question as to whether she was ready to go forward. The following exchange then took place.

"THE COURT: Mrs. Zachary [mother’s present married name], you have been advised there is a contempt proceeding in regard to this matter. Do you understand that if you were to be found guilty of contempt that you would be subject to a fine and also subject to imprisonment? Do you understand that?
"MRS. ZACHARY: I do now.
"THE COURT: Well, did you know it before this time?
"MRS. ZACHARY: I knew I could be fined.
"THE COURT: You didn’t know you could be put in jail?
"MRS. ZACHARY: No.
[197]*197"THE COURT: Let me indicate to you so you will have some idea of the seriousness of this that it might be in your best interests to be represented by an attorney in regard to this.
"MRS. ZACHARY: We can not afford the price of this and the cost for an attorney.”

The court then asked some questions to which mother responded that she was unemployed and that her current husband earned $7.86 an hour in a mill. She stated that she had had an attorney who "wanted $1,500 to come up here and represent us.” The trial judge commented that there were probably members of the bar who would adequately represent her for less than $1,500. He then made the following statement:

"‡ * * * *
"If you were indigent and didn’t have any money at all or any resources, the Court would appoint an attorney to represent you. But in your situation where the wage earner is making over seven dollars an hour —I know a lot of lawyers that aren’t making seven dollars an hour.
"So I’m going to postpone this case for a period of two weeks, and I would suggest that you better be represented by an attorney when it comes up again.
* * * *

Father’s counsel objected to the postponement, stating that father was alleging that he had been denied vistation for over two years, that the attorney who had withdrawn from the case had been the second attorney retained by mother, that resetting of the trial had been provided for by stipulation, and that father had out-of-town witnesses present and ready to testify.

The court then asked mother what efforts she had made to get another attorney. She replied that she and her husband had made no effort to find another attorney, deciding instead to appear by themselves.

In response to further questions, mother stated that she and her husband had $10,000 equity in their home and owed $5,000 in medical bills.

[198]*198The trial court, after noting that "your husband makes $7.86 an hour, you have a $10,000 equity in your home, and you haven’t made any effort to acquire an attorney since December 20th * * assigned the case for hearing that same day.

At the outset of the hearing, mother asked the trial judge for a two week delay so that she could obtain an attorney in Eugene because she understood from what she was told by the calender call judge that she could obtain legal assistance in Eugene at a more reasonable fee than that asked for by her Roseburg attorney.

Father’s attorney again objected, citing the same reasons given at calendar call, and the trial judge denied the request for postponement.2

The testimony at the hearing revealed that both parties had remarried, that father’s new wife had a teenage son with whom father had an excellent relationship, and that mother and her new husband had two small children of their own. Mother’s new husband had a good relationship with and expressed love for the children who are the subject of this custody suit. Father raised no question about the physical environment provided for the children by mother. His motions were based upon mother’s alleged interference with his attempted visits as provided for in the decree.

Father testified that he made most of the visits provided for during the first six months after the decree. The maternal grandmother testified that he did not. During this period, father was allowed to take the children out of the house only twice.

Testimony from father and his witnesses indicated that he had made consistent efforts to see the girls since October, 1977, but was allowed only six [199]

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Cite This Page — Counsel Stack

Bluebook (online)
616 P.2d 567, 48 Or. App. 193, 1980 Ore. App. LEXIS 3438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hansen-orctapp-1980.