In re Ibarra
323 P.3d 539
Or. Ct. App.2014Background
- Original dissolution judgment (2009, Washington) provided joint custody of the daughter (R. C.).
- Mother moved to Medford, Oregon and registered the judgment; R. C. attended various schools.
- December 2010 custody order gave mother sole custody and father 120 days of parenting time; father moved to Arizona.
- June 2011 mother moved to Boise, Idaho; R. C. began residing with mother but spent time with father in Arizona.
- September 2011 hearing: R. C. expressed desire to live with father; court reviewed an affidavit from R. C. and spoke with her in chambers.
- Court changed custody from mother to father, citing R. C.’s stated preference and multiple moves/school changes since divorce; in-chambers discussion with R. C. not on the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a substantial change in circumstances justifying custody modification | Mother contends no substantial change justifies modification. | Father argues moves and school changes constitute substantial change. | Record insufficiency prevents review of substantial change. |
| Whether the court properly relied on pre-last-custody-order facts to support the change | Mother notes two school changes occurred before last order (Dec 2010). | Children’s school changes and moves post-last order support change. | Court erred in relying on pre-last-order school changes as basis; review impeded by record. |
| Whether the in-chambers discussion with the child was adequately memorialized to permit review | Mother argues lack of record prevents meaningful review of the evidence relied on by court. | Father asserts discussion supported the court’s findings; not on record to review. | Record insufficient to review the impact of the in-chambers discussion. |
Key Cases Cited
- Sconce and Sweet, 249 Or App 152, 274 P.3d 303 (2012) (standard of review in equitable proceedings; view evidence favorably to trial court)
- Dept. of Human Services v. N. P., 257 Or App 633, 307 P3d 444 (2013) (juvenile dependency standard of review; evidentiary sufficiency)
- Hamilton-Waller and Waller, 202 Or App 498, 123 P3d 310 (2005) (move does not automatically create substantial change; assess adverse effects)
- Rea v. Rea, 195 Or 252, 245 P2d 884 (1952) (de novo review limitations when off-record investigations occur)
- Meader v. Meader, 194 Or App 31, 94 P3d 123 (2004) (on-record vs. off-record interviews and their evidentiary significance)
- Eichler v. Hetzel, 37 Or App 305, 587 P2d 106 (1978) (affirmation when record precludes review of claimed errors)
- King City Realty v. Sunpace, 291 Or 573, 633 P2d 784 (1981) (duty to designate parts of record necessary to establish error)