Stewart and Stewart
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FILED: May 15, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of the Marriage of DANIEL E. STEWART, Petitioner-Respondent, and MELANIE L. STEWART, Respondent-Appellant. Washington County Circuit Court C110801DRA A150549 Andrew Erwin, Judge. Submitted on March 06, 2013. Katrina R. Saint Marie filed the brief for appellant. No appearance for respondent. Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge. PER CURIAM Reversed and remanded. 1 PER CURIAM 2 In this dissolution case, wife appeals, asserting that the trial court erred in 3 denying wife all parenting time without making the finding that parenting time would 4 endanger the health and safety of the parties' two minor children, as required by ORS 5 107.105(1)(b).1 At the time of the dissolution hearing, wife was serving a prison 6 sentence that was expected to continue for 14 years. In the form general judgment, the 7 trial court made the following finding: 8 9 10 11 12 "Wife shall not have parenting time because this would endanger the health and safety of the children wife is currently serving a Measure 11 prison sentence. She will be incarcerated for the next 14 years. Her crimes include Robbery I & Assault I." (Strikethrough in original.) 13 The trial court did not make the required finding that visitation "would 14 endanger the health and safety" of the parties' two minor children. Rather, it crossed out 15 that language and inserted its own handwritten explanation that, because wife was 16 serving a prison sentence, she was denied all parenting time. The trial court erred in 17 failing to engage in the necessary inquiry as to whether parenting time with wife would 18 endanger the health and safety of the children. 19 20 To the extent that the general judgment suggests that wife's incarceration necessarily endangers the health and safety of the children, our case law is to the 1 ORS 107.105(1)(b) provides that "the court may deny parenting time to the noncustodial parent under this subsection only if the court finds that parenting time would endanger the health or safety of the child." (Emphasis added.) 1 1 contrary. We have held that "a parent's incarceration does not invariably require that 2 visitation be denied." Harris v. Burns, 137 Or App 355, 359, 904 P2d 648 (1995), rev 3 den, 322 Or 644 (1996). "Each case must be decided on its own merits and not on the 4 basis of a policy not to allow children to visit their parents at the penitentiary." State ex 5 rel Juv v. Clampitt/Hale, 18 Or App 12, 16, 523 P2d 594 (1974). 6 Further, we note that the trial judge, in his concluding remarks, indicated 7 that he was going to "take [himself] out of it" and let husband "make the decision for 8 what's going to be in his best interest." It is the court's task, not husband's, to develop a 9 parenting plan, including appropriate quality parenting time, in the best interests of the 10 children. See ORS 107.105(1)(b); see also Hickam and Hickam, 223 Or App 302, 196 11 P3d 63 (2008) (holding that it was plain error for the trial court to establish a schedule of 12 parenting time without making findings as required by ORS 107.105(1)(b) and instead 13 leaving the matter to a parenting coordinator, and exercising discretion to correct the 14 error). 15 Reversed and remanded. 2
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