In re the Marriage of Smith , 36 Or. App. 461 ( 1978 )

JOHNSON, J.

This is an appeal by the father from an order modifying the custody provisions of a dissolution of marriage decree. The original decree was entered on July 23,1976, granting the mother custody of the son, then age 7, and the father custody of the daughter, then age 9. In July, 1977, both parties sought modification of the original decree, each requesting custody of both children. The trial court granted the mother’s motion and the father appeals. We concur with the trial court’s decision denying the father’s motion. We disagree with the trial court’s conclusion that there was a sufficient change of circumstances to grant a change in custody of the daughter.

In Niedert and Niedert, 28 Or App 309, 311, 559 P2d 515, 518 (1977), we stated:

"The change-of-circumstance rule is designed to serve two functions: to discourage repeated litigation of the same issues and, more important, to provide young children with a stable environment. * * * We have long recognized the importance of a stable and secure home life and have consequently placed a high value on the stability of parental relationships. Therefore, the rule requires a showing of some change in circumstances which makes either the benefits to be gained from a change of custody or the detriment caused by not making the change outweigh the damage done to a child who is exposed to shifting parental figures. * * * (Citations omitted.)

The record indicates that the initial decree fixing custody was premised on an agreement between the parties. Both the mother and the father are loving and competent parents. The trial court found, and we agree, that the parents differ in their philosophy concerning parenting, the father favoring a more structured and disciplined approach. In the father’s household the woman with whom he lives performs a substantial portion of the child care responsibilities. Members of the father’s extended family also provide assistance. The mother does not appear to have the same degree of outside support. Both parents work full time. Both children are normal, healthy and mature and well adjusted to their living environment.

The mother makes four contentions that there has been a change of circumstances warranting a change in custody. (1) She argues that her improved physical and emotional health would permit her to care for both children. It appears that she had undergone an operation for varicose veins shortly before the original decree and has now recovered. The mother also testifies that although she was seeing a psychiatrist and taking Valium prior to the decree and for a short period thereafter, her emotional health has improved and she is now neither seeing a psychiatrist nor taking medication. Under the circumstances here this improvement in her physical and emotional condition was foreseeable at the time of the decree. (2) The mother alleges that the father has delegated his parenting responsibility to the woman with whom he is living. The mother concedes, however, that at the time of the original decree she was aware that this woman was the father’s housekeeper. In light of the fact that the father was and is working full time, it can only be assumed that at the time of the decree it was contemplated that a housekeeper or someone else would be performing a substantial amount of the caretaking and parental responsibilities. (3) The mother asserts the growing need of an eleven-year-old girl for a significant relationship with a maternal figure. This would have been a valid consideration at the time of the decree, but hardly constitutes a change of circumstances warranting modification one year later. The law does not contemplate shifting children between parents every time the children pass through a different stage of their physical and emotional development. (4) Finally, the mother relies on the daughter’s express preference to live with her. The mother admits, however, that she has no knowledge of what the daughter’s preference was at the time of the decree. The trial court also gave considerable weight to the daughter’s preference. As the trial court noted, however, both parents are dedicated and competent. The daughter loves her father and does not wish to alienate him. Furthermore, the daughter does not indicate a strong aversion to the woman the father is living with, but simply prefers her mother. The daughter’s complaints concerning the woman the father is living with are not unlike those that any child would have towards persons who are responsible for their day-to-day supervision.

In summary, we are confronted with a record depicting two well-adjusted children living with parents whose marriage has been dissolved, facing the inevitable compromises that result. There is no evidence in this record to justify disturbing that adjustment. Both motions for modification should have been denied.

Affirmed in part and reversed in part. No costs.