In re the Dissolution of the Marriage of Moffett , 29 Or. App. 303 ( 1977 )

LEE, J.

Appellant-mother seeks review of an order of the circuit court which modified the provisions of a decree of dissolution entered on November 13, 1974 by transferring custody of the parties’ two children, a ten-year-old son and a nine-year-old daughter, to father and eliminating the father’s child support obligation. The sole issue raised by mother’s appeal is whether, as the party seeking the modification of the decree, father met his burden of establishing a material "change of circumstances” justifying the order.¹ Father has also filed a cross-appeal, arguing that the court abused its discretion in granting mother a judgment against him in the amount of $1,575 as an award of attorney fees.

Some six months after the entry of the dissolution decree mother married her present husband, the custodial parent of three minor children of his own. The great weight of the evidence indicates that the son of the parties has had a very difficult time adjusting to the integration of his mother’s and stepfather’s families and has in fact developed serious emotional problems which have severely disrupted his relationships with both his mother and his stepfather and effectively rendered him incapable of "getting along” in their home. Having seen the children in August of 1975 and again in June of 1976 a pediatrician experienced in working with emotionally disturbed children offered the following unequivocal opinion upon which the court below "relied heavily” in deciding that the interests of the children would be best protected by a change of custody:

"I feel that from the situation as these children described it to me, it was impossible for me to see how the children remaining in their mother’s and stepfather’s home, how the situation could be worked out so that [the son] would adjust to that home. It seemed that over the two interviews it had gotten much worse for them, that whatever had happened to try to socialize him in this family had not worked. It was getting worse, that he and [the daughter] were extremely close, they were a unit * * *.

"So that I feel that since the situation in which they’re living seems an impossible one for [the son], I can’t conceive how it will improve at this point. And the situation with the father seems quite good as far as I can tell. He has a very good relationship with both children, and they feel comfortable with him. They seem to trust him. I think that their interest would best be served by being with their father.”²

Like the court below we are satisfied that despite what appear to be the good intentions of the mother the existing arrangement has proven to have had a particularly damaging effect on the son; in light of the difficult situation that has arisen over the last two years, we believe that a material change of circumstances has occurred and that the interests and welfare of both children³ will be best promoted by placing them in the custody of their father, subject to mother having "reasonable and liberal” visitation privileges.

On appeal father argues that because mother failed to introduce competent evidence demonstrating her incapacity to pay her own attorney fees, the court abused its discretion in granting her an award of those costs. Under the circumstances we believe it would, however, be inappropriate to allow father to raise for the first time here the question of whether the court’s seemingly broad discretion to award attorney fees in modification proceedings⁴ is limited by the necessity for such a showing. The record reveals that at no point in the course of the proceedings below did father suggest to the court that any showing of need ought to have been made; on the contrary, the evidence suggests quite strongly that father chose to acquiesce in the granting of what appears to have amounted to a "consolation” award to the mother. In light of his endorsement of the award of attorney fees by the trial court, father’s challenge at this time comes too late.

Affirmed. Costs to neither party.

1 ORS 107.135(1) gives the domestic relations court authority to provide for the continued care and custody of minor children of divorced parents through modification of the decree as it relates to such children. Necessarily taken in the best interests of the children involved, any modification must be based on a material change in the circumstances of the parties occurring since the entry of the decree itself or its most recent modification. Niedert and Niedert, 28 Or App 309, 559 P2d 515, Sup Ct review denied (1977); Harder v. Harder, 26 Or App 337, 552 P2d 852 (1976); A. v. A., 15 Or App 353, 514 P2d 358, 515 P2d 730 (1973), Sup Ct review denied (1974).

2 Interviewed by both the pediatrician and a psychiatrist, both children consistently expressed a desire to live in their father’s home, indicating that the' son’s inability to avoid problems with both his mother and stepfather has led to an intolerable emotional situation.

3 In Amundson v. Amundson, 7 Or App 33, 35, 489 P2d 983 (1971), we held that "[n]otwithstanding the existence of legal authority in this state which authorizes a court to separate children of divorc[ed] parents from each other, we disapprove of such action except in * * * cases where there are compelling reasons for doing so. The controlling and paramount question in such cases is the welfare of the minor children * * *.” We continue to adhere to that view. The evidence in this case indicates that the children involved share a very close relationship and are dependent upon each other for emotional support; under these circumstances the interests of each would appear to be best protected by placing them both in the custody of the same parent.

4 Prior to its amendment in 1973, Oregon Laws 1973, ch 502, § 9, OKS 107.135(3) provided that a court might "assess a reasonable attorney fee against an unsuccessful moving party who file[d] a motion to set aside, alter or modify a [dissolution] decree * * that statute now authorizes a court to "assess against either party a reasonable attorney’s fee for the benefit of the other party.”