IN THE COURT OF APPEALS OF THE STATE OF OREGON
TODD HORREX, CA…………………
Appellant
MORIAH PEDEN, nka, Moriah Peterson,
Appellee
________
APPELANT’s BRIEF
_________
Todd Horrex,
Prose Appellant
Alison Emerson, OSB #041108
Emerson Spencer, LLC
747 SW Mill View Way
Bend, OR 97702
(541) 323-2323
Attorneys for Appellee
Lillian Quinn, OSB #924307
45 NW Park Place
Bend, OR 97703
(541) 318-7274
Attorneys for the Child
TABLE OF CONTENTS
STATEMENT REGARDING ARGUMENTS. 5
STATEMENT OF RELEVANT FACTS. 6
- The trial Court grossly erred in making a finding that the best interests of the Child could only be served by terminating regular, frequent, and continuing contact with the Appellant 9
- The Court applied strange and unknown legal principles in allowing the Appellee’s motion for modification of the agreed parenting time and child support. 11
- The decision of the trial court is not only unreasonable but also unfounded as it amounts to an unfair and unreasonable parental alienation. 13
- The trial court acted in a biased and prejudicial manner towards the appellant. 13
- The trial court denied fair hearing to the Appellant. 14
TABLE OF AUTHORITIES
Case Law
Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994).
In Re Marriage of Stewart, 256 Or App 694, 302 P3d 818 (2013).
Garner v. Taylor, 254 Or App 635, 295 P3d 687, rev den, 353 Or 747 (2013), rev den, 353 Or 747 (2013).
Nieth and Nieth, 199 Or. App. 330 (Or. Ct. App. 2005).
R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256.
Statutes
ORS 109, Parent and Child Rights and Relationships
Fourteenth Amendment, US Const.
Other Authorities
Kotuby CT, General Principles of Law and International Due Process (Oxford University Press 2017)
JURISDICTIONAL STATEMENT
The Appellant humbly submits that this Honorable Court has the Jurisdiction to hear and determine this Appeal, Appellant having approached this court in accordance with all the applicable procedural laws.
STATEMENT REGARDING ARGUMENTS
The Appellant respectfully requests an oral argument. This, in the Appellant’s view will enable the Court to be able to appreciate the facts of the case, as well as the peculiar circumstances surrounding the case.
STATEMENT OF RELEVANT FACTS
The Appellant and the Appellee are the father and mother of Gavin Peden Horrex (“the child”). The child is a minor and the subject of both this appeal and a custody and parenting time agreement executed on 22nd December 2008 (“the agreement”). By the agreement, the parties herein agreed on general matters regarding custody, parenting time, and child support.
Although the parties herein do not live together, the Appellant faithfully performed his obligations under the agreement. The appellee, on the other hand, unlawfully alienated the child from the Appellant in flagrant breach of the agreement and the Appellant’s right to have access to his child.
The Appellee filed before trial court a motion seeking to modify the parenting time and child support agreed in 2008. She made a litany of allegations against the appellant in support of her motion and upon hearing, the trial court allowed the motion, which necessitated the instant appeal against the Court’s orders terminating the Appellant’s parenting time with the child and increasing the amounts payable by the Appellant in parental support. As the Appellant will demonstrate in this brief, the trial court had no basis to arrive at the conclusion it did. The impugned decision of the trial court is founded on gross errors of law and fact.
QUESTIONS PRESENTED
This Appeal revolves around the following pertinent issues:
- Whether the trial Court erred in finding that it is not in the best interest and welfare of the child to have regular, frequent, and continuing contact with the Appellant.
- Whether the trial Court applied the wrong legal standards and principles in granting the Appellee’s motion for modification of the agreed parenting time and child support.
- Whether there was sufficient and credible evidence before the trial Court to warrant grant of the orders sought by the Appellee.
- Whether the decision of the trial Court amounts to unfair and unreasonable parental alienation.
- Whether the trial court acted impartially and fairly in determining the proceedings.
- Whether the trial court afforded the Appellant his right to fair hearing as required under the Law.
SUMMARY OF ARGUMENT
- The trial Court grossly erred in making a finding that the best interests of the Child could only be served by terminating regular, frequent, and continuing contact with the Appellant when the evidence on record suggested otherwise. The orders of the court are an affront to the Appellant’s right to have access to the child and are in fact inconsistent with the best interests of the child.
- The Court applied strange and unknown legal principles in allowing the Appellee’s motion for modification of the agreed parenting time and child support. There was no cogent evidence tendered to prove material facts at issue such as the that the child allegedly does not want to spend time with the appellant.
- There was no credible material placed before the record of the trial court as to warrant grant of the orders sought by the Appellee. Most of the witnesses called by the Appellee relied on hearsay and were, on several occasions, caught lying under oath. As such, the Court was not able to appreciate the peculiar circumstances of the parties’ relationship and lifestyle and ended up misapprehending material facts.
- The decision of the trial court is not only unreasonable but also unfounded as it amounts to an unfair and unreasonable parental alienation.
- The trial court acted in a biased and prejudicial manner towards the Appellant by, among other conduct, denying Appellant’s requests for disqualification of judges the Appellant considered and believed were biased.
- The trial court denied fair hearing to the Appellant by dismissing and failing to consider material which was relevant and of high probative value to the matters at issue.
ARGUMENT
I. The trial Court grossly erred in making a finding that the best interests of the Child could only be served by terminating regular, frequent, and continuing contact with the Appellant
The trial Court in its determination held that there has been a substantial change in circumstance to warrant a change in parenting time and child support. On this basis, the Court found that it was no longer tenable for the parties to observe the agreement dated 22nd December 2008 and terminated the Appellant’s contact with the child.
But what is the ‘substantial change in circumstances’ that warranted change in parenting? The Appellant humbly submits that the Court was misled to believe in the Appellee’s blatant lies which were only driven towards denying the Appellant the right to spend time with the child.
When the matter came up for hearing on 24th October 2018, the Appellant was determined that he was going to establish a number of facts before the trial court, the key one being that the Appellee had been misleading the Court. The only way the Appellant was going to do this was by calling the child to give viva voce evidence. This evidence would have left no iota of doubt as to the child’s best interests. However, the Appellee, acting through her counsel and the Child’s counsel, made numerous objections which were bordering legal technicality and form instead of substantive law and justice. The said learned counsel urged the Court that the subpoena issued to the child was defective merely because the Appellant had not paid up witness fees. This, the Appellant submits, was a well calculated ploy to deny the Court the opportunity to have the direct evidence of the Child. To the Appellant’s utter surprise, the Court was swayed to agree with the objections raised by the said counsel and did not make an attempt to have the child come to court, even for a conference in chambers.
In the circumstances, the Court was left to hear and rely only on the evidence of partisan witnesses, all of whom had been influenced by the Appellee and her representatives. The Appellant’s own witness, Dr. Bradley Burket turned hostile and gave made many inaccurate and misleading statements. The witness admitted that he had treated the child in his medical clinic for chronic abdominal pains for “quite a while”. He averred that the child had symptoms of abdominal pains which had persisted for a long time and the Clinic did base line lab tests as well as a ultra sound imaging, all which came back normal. Beyond that point, the witness found himself making contradictory statements on oath to justify the possibility that the child had a chronic illness that could not allow him to be under the Appellant’s parenthood when such testimony could not be backed by the medical tests conducted. The witness further attempted to paint the Appellant as a liar as a hostile and intimidating parent. But on redirect examination, the witness admitted that the Appellant made calls when it was necessary and only to further the interests of the child. When put to task on calls made by the Appellant, the witness read out the following regarding some of the Appellant’s calls:
“Let’s see on 6/20, Dad called into check and see if Gavin’s Mom had taken him to get lab work done. On 6/27, that was Mom called, just wanted to get the immunization record. Gavin’s father, Todd Horrex called because he’s concerned Gavin might have some sort of liver issue. He’s worried because Gavin hasn’t been taken in to get his blood work done.”
All the other witnesses called by the Appellee testified to the effect that the Appellant is violent, irresponsible and should not spend time with the child. As the Appellant will later show, all these witnesses were not telling the truth before the Court. Unfortunately, the Appellant was unable to secure the attendance of his girlfriend did not have an off day on the day she was expected to testify in Court. Without this crucial witness and without the testimony of the child, the Court was left to rely on the aforesaid witnesses who were not credible and sought to propagate the theory that the Appellant is an irresponsible and unfit parent. Unfortunately, the Appellee’s main contention before the trial court was that the Appellant had been sending the Appellee text messages and voice messages that would be considered as violent and unfriendly. The trial court was misled to believing that the said messages, which the Appellant does not deny having sent to the Appellee, targeted the child. That position is not current and as the Appellant attempted to explain before the trial court, the Appellant was, out of frustration caused by the Appellant, conveying the messages to the Appellee through her mobile phone. The Appellant did not at any point expect that the messages in question would reach the child. If at all they did, then it was out of the Appellee’s intention to do so.
The role played by courts of law in determining the best interests of a child are so important that courts are called upon to exercise their powers judicially and conduct a careful enquiry before embarking on making a decision as to custody. In this regard, courts consider a number of factors including:
- The importance of family integrity and preference;
- The health of the child
- The emotional ties and relationships between the child and his or her parents, siblings and family.
- The mental and physical health needs of the child.
- The wishes of the child.
The Court did not consider all the above factors as it only allowed evidence from perjurious witnesses and disallowed evidence of the Child, which could have guided it on what his wishes and interests are. Moreover, the trial failed to consider the interests of the child and his step half-brother, Torrin Horrex to spend time together and grow as a family. In the circumstances, the Appellant urges the Court to find that it was not proper for the trial to hold that the Appellant should not have regular, frequent, and continuing contact with the Appellant.
II. The Court applied strange and unknown legal principles in allowing the Appellee’s motion for modification of the agreed parenting time and child support.
In the absence of evidence to support the orders sought in the Appellee’s motion, the Court still proceeded to allow the motion. In so doing, the Court purported to be advancing the best interests of the child. It is imperative to note that the Court did not rely on any express provisions of statute or case law to bolster its reasoning.
It is settled that in Oregon, the best interests of a child should be the principal for consideration in determining issues of child support and parental time. As much as possible., both parents of a child must be allowed equal time.
In the leading case of re Marriage of Stewart, 256 Or App 694, 302 P3d 818 (2013), the Court reversed the trial court’s decision denying all parenting time to an incarcerated mother. The basis of the reversal was that the trial Court had failed to engage in the necessary inquiry as to whether parenting time with mother would endanger the health and safety of the children. In this case, the Court erroneously believed that the child does not want to spend time with the Appellant and adopted Dr. Bradley Burket’s evidence that the child would in fact get sick as a result of spending time with the Appellant, an averment that is devoid of logic let alone merit.
Even though the Appellant has not denied uttering certain unfortunate statements in form of voice recordings, it is submitted that those statements were not intended for the child. Furthermore, the Appellant has demonstrated his willingness to continually improve his mental state and has been visiting a therapist who is a licensed PhD and an LPC in La Pine.
The Appellant humbly urges this Honorable Court to consider the personal circumstances of the Appellant and the fact that the Appellee has not been supportive of the Appellant’s attempts to improve his situation in life. He is now impecunious and overburdened and he loves his first-born son, the child herein, and would love to reunite with him.
It is only fair and in the interests of justice that the agreement of the parties of 2008 be reinstated. In Garner v. Taylor, 254 Or App 635, 295 P3d 687, rev den, 353 Or 747 (2013), rev den, 353 Or 747 (2013), the Court was emphatic that for variation of such judgment to be done, there ought to exist extraordinary circumstances. No such circumstances have been established in this case.
Moreover, the Court misapplied its mind in calculating parenting support payable by the Appellant thus unlawfully overburdening the Appellant when there was no ground for doing so. There has not been any known change in the Child’s circumstances that would have warranted such an award by the trial. Oregon courts have previously warned that child support should be used by parties to legal proceedings as a means for unjust enrichment. Addressing itself to this issue, the court in Nieth and Nieth, 199 Or. App. 330 (Or. Ct. App. 2005) had the following to state:
“Because a child support award is an attempt to simulate the economic benefits that the child would enjoy had the family remained intact, modification based solely on a change of the economic circumstances of the obligor is not necessarily improper. See Weber, 337 Or at 68, 68 n 8.” [Emphasis supplied]
- There was no credible material placed before the record of the trial court as to warrant grant of the orders sought by the Appellee.
Because most of the witnesses called by the Appellee relied on hearsay and were, on several occasions, caught lying under oath, the court did not have a basis to grant the Appellee’s motion. The Court did not appreciate that the witnesses called by the Appellee were attempting to discredit the Appellant for their personal reasons. Some of those witnesses-such as Ms. Jennifer Eatwell-showed clear disrespect for the Appellant’s continued effort in raising his two sons and their vendetta against the Appellant could not be hidden any more.
Therefore, the Court was not able to appreciate the peculiar circumstances of the parties’ relationship and lifestyle and ended up misapprehending clear material facts. The Court was also downplayed the role of religion in the proceedings herein. Uncontroverted evidence of the witnesses who testified showed that the Appellee and her family are staunch members of the Jehovah’s Witnesses while the Appellant is not. The possibility that the Appellee and her family were discriminating against the Appellant was brushed under the carpet when it is in fact one of the causes of the problems raised before the trial Court. During the trial, the Court made the following observations regarding the issue of Jehovah’s witness:
“The issue with regards to the Jehovah’s Witnesses and their structure or the manner in which they operate is not an issue for this Court. We’re not going to take testimony about that.”
IV. The decision of the trial court is not only unreasonable but also unfounded as it amounts to an unfair and unreasonable parental alienation.
Every child has the right to spend time with both of his/her parents. Alienating a child from their parents should not be done except in cases where doing so would be an affront to the best interests of the child. The Appellant submits that this is not the case here. As such, the decision of the trial court is not only unreasonable and unfair but also lacking factual and legal foundation. It is for reversal.
V. The trial court acted in a biased and prejudicial manner towards the appellant.
The Appellant’s respectful submission is that the trail Court consistently showed open and subtle bias towards the Appellant during the hearing and determination of the case before it. It is trite law, in the United States of America and the world over, that fair hearing and trial is a basic and non-derogable right which must be protected and upheld by courts of law. That right is deeply entrenched in the Fourteenth Amendment of the US Constitution which demands fairness in all legal proceedings. It is for this reasons that recusal of judges is required when, objectively speaking, the probability of actual bias on the part of the judge or decisionmaker is apparent. Bias of a judge should, therefore, lead to recusal of the judge if it is likely to prejudice the rights of a litigant. In the case of Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994), the Court made the following instructive observations, thus:
“[n]ot every bias, partiality, or prejudice merits recusal. To disqualify, prejudice must be of a personal character, directed at the litigant, “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from participation in the case. If the bias is based upon actual observance of witnesses and evidence given during the trial, the judge’s prejudice does not disqualify the judge. However, if the bias is so pervasive that it is sufficient to deny the litigant a fair trial, it need not be extrajudicial. Id.(quotations and citations omitted); see also Spain v. Connolly, 606 S.W.2d 540, 544 (Tenn. Ct. App. 1980)”
When the Appellant observed clear and apparent bias against him, he sought orders to disqualify Honorable Judges Raymond Crutchley and Bethany P. Flint. But the two Judges denied the orders sought by the Appellant without expressing any good grounds in support of the denial. Any reasonable person would ask the question as to why a judge would insist on sitting in a matter where one of the litigants lacks confidence. It behooves a judge to recuse themselves if doing so will make litigants comfortable with whatever outcome the hearing leads to. Indeed, in the leading case of R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, it was held that justice should not only be done but should manifestly and undoubtedly be seen to be done.
After denying the Appellant’s requests for recusal of the aforesaid judges, the trial Court dismissed other motions and requests by the Appellant, which fact only compounds the questions of impartiality and bias raised by the Appellant.
In addition to the foregoing, the trial court allowed the Appellee to get away with blatant contempt of clear and lawful orders of the court at the Appellant’s disadvantage. Further, the Appellant filed a petition to be allowed to continue visitation for the Child pending the hearing and determination of the case, the Court dismissed the petition despite the existence of valid orders allowing visitation, which the Appellee had flagrantly disobeyed. Why the preferential treatment of the Appellee yet all parties should be equally protected by the law and the Constitution?
Lastly, denying the Appellant the opportunity to have the Child, who was the subject of the proceedings before the Court, clearly demonstrates that the trial Court was not interested in hearing and knowing the truth regarding the issues presented. The Court, again, relied on technicalities to dismiss the prayer by the Appellant to have the Court hear the evidence of the Child. In the end, the Child neither presented viva voce evidence neither did the Court hear the child in chambers to understand what the child has to say about his needs and wants.
VI. The trial court denied fair hearing to the Appellant.
The legitimacy and fairness of a court decision flows from the manner and process of hearing the case and evidence presented by all litigants. See, Kotuby CT, General Principles of Law and International Due Process (Oxford University Press 2017).
On 12th December 2018, the trial court denied the Appellant’s proposed injunction to protect the seizure of property in violation of due process, allegedly because failure to comply with UTCR 5.100. This alone demonstrates undue regard to technicalities at the expense of the substantial justice of the case which would have demanded that an injunction do issue to safeguard constitutional rights of the Appellant. At the request of the Appellee, the Court further agreed to quash all the Appellant’s requests for answers to interrogatories notwithstanding their centrality in the proceedings. The Appellant submits that the learned trial judge erred in disallowing the Appellant’s requests for answers to interrogatories. The answers to the interrogatories would have laid bare the truth of the Appellee’s wantonness and blatant disobedience of orders of the court and the law.
CONCLUSION
Based on the foregoing analysis, the Appellant humbly invites this Honorable Court to make a finding that the trial Court erred in law and fact in granting the Appellee’s motion. Accordingly, the Appellant prays that this Court reverses the decision of the trial Court and reinstates the Parties’ custody and parenting time agreement dated 22nd December 2008.
Respectfully submitted,
Todd Horrex,
Pro se Appellant
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