IN THE CIRCUIT COURT OF THE STATE OF OREGON. For The County of Multnomah. Family Law Department In the Matter of the Marriage of

IN THE CIRCUIT COURT OF THE STATE OF OREGON For The County of Multnomah Family Law Department In the Matter of the Marriage of HAROLD S. SHEPHERD and Petitioner No. 9705-66040 Petitioner s Response to Respondent s Statement for Attorney Fees And Request for Findings And Conclusions of Law Under ORCP 68 SUSAN H.F. SHEPHERD, nka Susan Finch, Respondent State of Oregon ) ) ss. County of Multnomah ) Petitioner, hereby responds to Respondent s Statement for Attorney Fees (Attorney Fees) and Requests for Findings and Conclusions of Law under ORCP 68 (Statement) as follows: I. Judge Tennyson Should be Disqualifide or Recuse Herself from this Matter. Due to the critical and potentially significance consequences to Petitioner s financial well being resulting as a result of the Court s decision on the Statement, Petitioner, again, moves to disqualify Judge Katherine Tennyson and/or requests that Judge Tennyson recuse herself from the above captioned case pursuant to ORS 14.250 through 14.270. This request is made due to the potential harm that would result if Judge Tennyson is not disqualified or does not recuse, is illustrated by PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 1

Petitioner s Motion to Disqualify Judge Katherine Tennyson (Motion to Disqualify) filed on November 12, 2008. This motion was filed after 2 years of proceedings in this matter in which regardless of the applicable law, Judge Tennyson would not enforce parenting time or court orders or grant Petitioner s only request that he spend sufficient time with his children as to be in their best interest. Petitioner s Affidavit In Support Of Motion To Disqualify Judge states that I have a good faith belief that I will not receive a fair and impartial hearing before Judge Tennyson. Several months after it was filed, however, the Motion, to Disqualify Judge, was denied by the Multinomah County Presiding Judge and Petitioner was forced to proceed with this matter knowing that he would not receive a fair hearing and which has clearly occurred. After learning that Judge Tennyson will not enforce her own court orders and that his parent rights and the Children s have been effectively and illegally terminated by the appointment of the Childrens attorney and other actions taken by Judge Tennyson, Petitioner once again requests that Judge Tennyson be disqualified or recuse herself from this matter. As in this case, and in order to protect the principles of Due Process, the U.S. Supreme Court will reverse a biased decisions by a state court, when the Judge in question refuses to recuse,: this Court has also identified additional instances which, as an objective matter, require recusal where "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. [T]the question is whether, under a realistic appraisal of psychological tendencies and human weakness, the interest "poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Caperton v. A.T. Massey Coal, Co. 129 S. Ct. 2252, 2252-2253, (2009), citing Withrow v. Larken, 421 U. S., 35, 47. PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 2

II. The Non-Hourly Rate Charges Listed in the Statement are not Reasonable Respondent provides that the following charges are reasonable and necessary and are not included in the hourly rates set forth above: Michael J. Fearl (Children s Attorney) $1,351.24 Contrary to Respondent s claim, however, such charges are not reasonable because father has consistently expressed his opposition to the appointment of an attorney for the children, in part, because he knew that, Respondent would attempt to saddle him with the fees charged by such attorney. By letter to the Court, dated April 14, 2009 (Petitioner s April 14 Letter), Petitioner provided that one or both parents will no doubt ultimately be responsible for the payment of attorney fees to Mr. Fearl and I am prohibited by the federal bankruptcy code from assuming any further debt until I am no longer subject to Chapter 13 of that code. In fact, although the children s attorney in this matter, has similarly billed Petitioner in the amount of $1,351.24, accept as otherwise provided by Petitioner s Order Confirming Debtors Chapter 13 Plan Following Contested Confirmation Hearing (June 16, 2008) (Chapter 13 Plan) (Attachment 1), Petitioner is not authorized to pay either Mr. Fearl s bill to Petitioner or Respondent s attempts to bill Petitioner for her costs related to the appointment of Mr. Fearl. Specifically the Chapter 13 Plan provides that [d]uring the term of the Plan, the Debtor shall not sell or transfer property of the estate or any collateral provided for under the Plan without a Court Order and without prior written notice to the Trustee. Chapter 13 Plan item 20 p. 5. In addition, in that same letter Petitioner stated that: PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 3

I believe that nothing can be served by such appointment and it would not be in the best interest of the children who the appointment will further and unneccesarily tramatize The appointment of council for the children and requiring them to meet with an attorney who will further quiz them as to whether they want to add on additional parenting time will result in further needless stress to the children when the court can make this determination without putting the children through this process. III. The Factors Listed by Respondent Do not Support the Statement Respondent maintains that the: Court should consider the factors below in determining whether to award Attorney fees [1]The objective reasonableness of the claims and defenses asserted by the parties[;] [2] The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceeding[;] [3]The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute[; and] [4] Such other factors as the court may consider appropriate under the circumstances of the case. Statement at 2. At no time, however, during the Modification Proceedings did Respondent request a settlement from Petitioner. In addition, as illustrated by his previous filings in these proceedings in which he stated that he has filed for and been granted bankruptcy by the federal district court in Utah, accept as provided by the Chapter 13 Plan, Petitioner has no ability and is not authorized to pay the attorney fees requested. (See Attachment 1). In addition, as in this case, the Oregon Supreme Court has recognized that attorney fees should not be used as a means for preventing parties, in domestic relations matters, who have limited means from litigating critical personal issues. We regard the statute as a legislative recognition that dissolution affects interests of the greatest personal importance and that neither spouse should be denied the PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 4

opportunity to sue or defend due to lack of equal access to marital resources which may be available for that purpose. In re Haguewood, 292 Or. 197 212-13 (1981). Respondent maintains that the Issues raised in the present action appear to mirror those previously litigated. Statement p. 3. Respondent s claim, however, is a misrepresentation of the issues in the Motion for Modification. In fact, Petitioner s Reply to Response to Ex Parte Motion for Order to Show Cause Regarding Modification of Judgment RE: Parenting Time (Reply) specifically lists multiple changed circumstances requiring Petitioner to request a modification of parenting time. The Reply, for example, provides that when Dr. Robert Loveland, made his original recommendations on whether to extend parenting time during the summer breaks, he was unaware of the fact that Petitioner is having and will continue to have extreme difficulty taking the children during these breaks due to Petitioner s lack of ability to pay for such transportation and, the recent substantial increase in the price of gasoline. Reply at 2. In addition, in his Affidavit in Support of Motion for Order to Show Cause RE: Modification of Judgment (Affidavit in Support of Show Cause Motion), Petitioner expressly stated: I currently have insufficient time with my children to maintain an adequate parent child relationship with them. As I have sole responsibility for my childrens travel to exercise my parenting time, I am unable at my present income to afford these travel expenses. This prevents me from spending sufficient time with my children so that it is not in their best interests. Affidavit in Support of Show Cause Motion, p 1. Further, in the Reply Petitioner expressly stated that he was having: PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 5

Reply p. 3. extreme difficulty taking the children during the Christmas and spring breaks due to his lack of ability to pay for such transportation and, the recent substantial increase in the price of gasoline. As a result, under the current parenting plan Petitioner s current ability to exercise parenting time is a mere 5 weeks each summer [and] although the current parenting plan provides that Petitioner will be able to talk to the children by telephone, as illustrated by the attached declaration, Petitioner can almost never reach his children by phone when he calls due to the line constantly being busy or the children are not home. This situation is exacerbate by the fact that Respondent regularly fails to have the children return Petitioner s phone calls. Finally, contrary to Respondent s claim, in relation to a Motion to modify parenting time, the moving party need not show a change in circumstances to obtain a modification of the parenting plan. This is because the standards for modification of child support or custody do not apply in a motion for modification of parenting time. In contrast to matters involving custody, for example, modification of parental visitation rights requires neither a determination of the relative fitness of the parents nor a showing of a substantial change of circumstances. Ortiz and Ortiz, 101 Or App 362, 365, 790 P.2d 555 (1990). Therefore, the critical factor to be considered in a modification of parenting time is whether the change will benefit the children. Adams and Adams, 55 Or. App. 366, 369, 637 P2d 1358 (1981). Given the different issues and standards in the two types of proceedings, therefore, it is inappropriate to treat visitation orders as 'custodial orders' for purposes of the change of circumstances rule. Ortiz at 365. Respondent further provides that Petitioner based his affidavit on the belief that Dr. Loveland, who had performed the previous parenting time evaluation, was not practicing in the best interest of the children to perform a new study. Statement at 3-4. As illustrated by testimony at the June 19, 2008 hearing in this matter, PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 6

however, Dr. Loveland s recommendations as to parenting time are based on the convenience of the mother rather than the best interest of the children. Further, Respondent states that the Court ordered, on its own initiative, an attorney to represent the children. Micheal J. Fearl was appointed to represent the children. Statement at 4. As stated above, however, Petitioner, vehemently, opposed the appointment of an attorney to represent the children because it would drag the children in the middle of a dispute and, illegally, defer to the children the decision on Petitioner s Motion for Modification that should, instead, have been decided by the Court. In his April 14 Letter, in fact, Petitioner stated Both of the parties in this matter, are already fully aware, for example, that both children will state that they do not wish to spend 8 weeks [of parenting time during the summer months with me] each who have reached this conclusion as the result of thorough coaching from Ms. Finch the Court has no authority to grant parenting time based primarily on the direction of the children. Instead the sole authority the court has to establish such time is based on the best interest of the children. p. 1. The fact, that Mr. Fearl s involvement in this matter, not only, inappropriately, further dragged the children into the middle of this dispute by turning them into the decision makers regarding parenting time, but incurred substantial additional time investments by all parties, is illustrated by Petitioner s letter of June 1, 2009 (Petitioner s June 1 Letter) (Attachment 2), responding to a previous letter sent to Petitioner by Mr. Fearl, which states: as I have attempted to explain to both you and the court that your appointment has clearly dragged the children in the middle of this dispute, is not only illustrated by the fact that you have met with them on several occasions to talk with them about this parenting dispute, but by forcing me to discuss parenting time issues with my daughter who, PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 7

I am fully aware will be the one who is primarily responsible for the outcome of this litigation. Any doubt, in fact, that my daughter is not making the decisions in this case has been completely removed by your express admission that my request for summer parenting time is untenable and will not happen which is clearly a directive coming from your clients as lead by my daughter. June 1 Letter p. 3. Further, that the appointment of Mr. Fearl was, intended by this Court to, inappropriately, discourage Petitioner from continuing to pursue the Motion for Modification and severely compromised Petitioner s request to spend sufficient time with his children, is illustrated by the fact that Mr. Fearl had come to the conclusion that the existing court ordered parenting plan does not have any problems that need to be tinkered with, Micheal Fearl, Letter to, RE: v. Susan Finch (fka Shepherd), Case No. 9906-6405, May 27, 2009, without providing any bases for this decision and before he had made even a reasonable investigation into the relevant facts related to the proceedings. In the June 1 Letter, for example, Petitioner states: Id. [Y]our statement that [h]opefully [I] will come to the same conclusion and withdraw the motion that is before the court at this time without providing any rational as to why you believe it is in the best interest of my children to spend only a few weeks per year with their father, merely illustrates your predisposed attitude against me as a non-custodial parent and, because I suspect that the court will incorporate your recommendations in its disposition of this matter, is the most unfortunate of the multiple uninformed assumption you have made in regards to this case. Moreover, Respondent states that Petitioner s request that a parent time study be initiated was denied as the court and the children s attorney did not believe it was in the best interests of the children. Statement p. 4. As state in Petitioner s PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 8

Motion To Schedule Parenting Time Evaluation (PT Eval. Motion), however, A Parenting time evaluations is permissible in this case based on the fact that there has not been a professional evaluation within the past two years, except to obtain an update. PT Eval. Motion at 1-2. See also, MCSLR 8.047(3)(d). Petitioner s request to conduct a parenting time study, therefore, was entirely appropriate based on the fact that the last complete parenting time evaluation was conducted by Dr. Robert Loveland and is dated March 3, 2006. PT Eval. Motion at 2. Further, that the PT Eval. Motion was filed for entirely appropriate reasons is based on the the fact that Petitioner retains a good faith belief that the evaluations conducted by and opinions provided by Dr. Robert Loveland in relation to previous parenting time modifications requests filed by Petitioner are not in the best interest of the children in this matter Id. at 2. That Dr. Lovelands recommendations were not in the best interest of the children was based on Petitioner s good faith belief among other things that testimony provided by Dr. Loveland in two previous hearings indicate that his recommendations for limiting parenting time in this case are based on the convenience of the Mother rather than the best interest of the children, on conflicting conclusions and recommendations made in Dr. Lovelands Parenting Time Evaluation and on inaccurate factual conclusions in his testimony and the Evaluation. Declaration Of In Support Of Motion To Schedule Parenting Time Evaluation And For Set Over Of Proceedings p. 4. Respondent claims that Petitioner notified Respondent only after order of this court via telephone on June 11, 2009 of the dates he would be exercising his summer parenting time for the first part of the summer. Respondent, however, noticeably fails to mention that under the current parenting plan, it is impossible for Petitioner to PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 9

notify Respondent in a timely fashion of the dates that he will be exercising parenting time because, as Petitioner has attempted to tell Respondent on multiple occasions, the plan is entirely unworkable. This is based on the fact that the Plan places an undue pardon on Petitioner to cover all of the travel expenses making it impossible for Petitioner to manage the travel costs. As stated in the Petitioner s June 1 Letter due to my financial constraints and because the parenting plan requires me to pay all expenses for multiple shorter duration parenting time, including 8 round-trip airline tickets per year,. Based on these facts it is, difficult to understand, by any stretch of the imagination, that the current parenting plan does not have any problems p. 3. The current plan, therefore, prevents Petitioner from even knowing whether he can exercise his Parenting Time until such time as Petitioner is able to come up with the funds which, due to Petitioner s limited financial means, typically results in whatever measures Petitioner can think of and normally takes up to a day or two prior to the scheduled parenting time. Respondent claims that Petitioner submitted a Notice of Dismissal asking that the court dismiss his motion without prejudice. However, he failed to file a proposal form of Order as required by local rule Statement at 5. Respondent, however, fails to allege any additional attorney time or expenses incurred on her by the failure to file a proposed form of judgment and no such additional time or expense occurred as a result in the delayed Judgment of Dismissal. Respondent claims that Petitioner did not respond to multiple requests for confirmation of the summer plans for the children for his second period of summer parenting time. Statement at 5. Again Respondent misrepresents the actual facts. In PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 10

fact, in his letter of June 15, 2009 (Petitioner s June 15 Letter) (Attachment 3) sent both to Respondent s Attorney and Mr. Fearl, Petitioner expressly provides: I have purchased a round-trip ticket for Alex for the period of June 19 through July 6 and Ms. Finch will need to drop him off and pick him up from the airport on those dates. The flight information is as follows: Friday, June 19th. Friday, July 6th Southwest Airlines Flight # 239 Southwest Airlines Flight # 892 Leaves Portland 6:25 p.m. Leaves SLC 5:45 p.m. arrives SLC 9:10 p.m. arrives Portland 6:35 p.m. Confirmation # JLBKAT In fact, in Response to this Letter Respondent s Attorney confirmed the above information regarding Alex s flight verbatim and that [s]ince you stated Friday July 6 th in your letter, this will also clarify that you indeed mean Monday, July 6 th on Southwest flight 892 Sharon Williams Letter to Harold S. Shepherd, Re: Shepherd and Finch (fka Shepherd) June 15, 2009. (William s Letter)(Attachment 4). Further, regardless of the fact that Petitioner s June 15 Letter expressly provides Anna will not be coming to Utah this summer Ms. Williams states [w]e would like clarification about whether you intend to exercise any of your second block of parenting time with Alex and/or Anna from July 21 through August 8, 2009. Please provide confirmation of the details contained herein by tomorrow, June 16, 2009. Similarly, apparently ignoring Petitioner s express written statement in his June 15 letter related to summer parenting time and the fact that Petitioner is not required by the current parenting plan to provide day-to-day details of how he plans to exercise parenting time or his personal life, the Childrens Attorney sent a letter dated June 30, 2009 to Petitioner (Fearl June 30 Letter) (Attachment 5) stating [a]s of this writing, I do not know what your plans are for your second block of summer PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 11

vacation parenting time. Then immediately after making this statement, Mr. Fearl, admits that he actually does know what Petitioner s summer plans are by acknowledging that The dates of that parenting time block have been established. Nevertheless and regardless of the fact that Mr. Fearl acknowledges that he understands what Petitioners summer parenting time consists of, remarkably, he states, However, as far as I am aware, you have not clarified what your plans are for the second block. Does this mean you will be traveling to Oregon to exercise your parenting time? In addition to the fact that Petitioner s June 15 Letter clearly indicated that Alex and not Anna would be coming to Utah for the summer parenting time, unless Mr. Fearl, somehow believes that Petitioner can be in two places at one time or would pay the costs for Alex to fly to Utah and then turn right around and travel back to Oregon to see Anna also, it should have been obvious that Petitioner had no plans to exercise his parenting time in Oregon. Based on the fact that neither Mr. Fearl nor Ms. Williams had any right to the information requested in the letters they sent to Petitioner and that Petitioner had already made it abundantly clear to all parties what his summer parenting time plans consisted of, one can only conclude that these letters were sent in an effort to harass Petitioner and drive up both Mr. Fearl s and Ms. William s attorney fees and costs. That this is indeed what Ms. Williams and Mr. Fearl intended is further illustrated by the fact that both attorneys attempted to involve the court in their alleged confusion about the summer plans. In her Response to Notice of Dismissal, for example, Respondent requested: that the court enforce the terms of the court s telephone conference held on June 11, 2009 with the undersigned judge, thereby, requiring PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 12

Petitioner to comply with the notification to Respondent of his intent to exercise his second half of summer parenting time and to specifically state the dates, times and places where the children will be with contact telephone numbers and whether he intends to exercise time with one or both children and if only one child which child that will be. p. 2-3. Moreover, Respondent again, misrepresents the Court s directive regarding the June 11 phone conference. In fact, the Court never directed Petitioner to specifically state the dates, times and places where the children will be with contact telephone numbers. Similarly, in his Response of Children s Counsel to Petitioner s Notice of Dismissal the Children s Attorney provides: Counsel does not object to dismissal, but before the court enters a judgment to that effect, petitioner should clarify and provide details regarding his intentions for exercising the second block of his summer parenting time. The date for the second block of summer parenting time will be from July 21 through 8, 2009. Father has not divulged whether he will exercies that parenting time with one child or both of them, or neither of them, and if he will exercise that time, whether it will occur in Utah, Portland, or at some other location; and what the logistics of travel for that parenting time will be. Response of Children s Counsel - Notice of Dismissal p. 1. Counsel for Respondent and the Children did not stop there, however, and even attempted to set up a conference call with the Court which, in an effort to discourage Mr. Fearl and Ms. Williams continuing efforts to drive up fees and costs and to avoid further harassment, Petitioner did not attend. Respondent claims that: Petitioner, throughout this proceeding, delayed responding and inappropriately filed correspondence and pleadings for which Respondent then had a duty to respond to. In addition, Petitioner failed to deal appropriately with Respondent with regard to scheduling pareint time which resulted in more fees and court time then was needed. Therefore, many of Respondent s fees in this case could have PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 13

been avoided had Petitioner appropriately filed said pleadings and dealt more effectively with Respondent, her counsel and the children s counsel with regard to scheduling issues. Statement p. 5. As illustrated above, however, in an effort to harass Petitioner and drive up their attorney fees, knowing that the Court will likely require Petitioner to pay all or part of such fees, Mr. Fearl and Ms. Williams have sent letters to Petitioner demanding information already provided by Petitioner, have misrepresented court directives and have specifically requested that before the court enters a judgment of dismissal, that that the court enforce the terms of the court s telephone conference held on June 11, 2009 with the undersigned judge. Rather then Petitioner, therefore, Counsel for the other parties have been the ones who have caused needless additional work for all the parties and substantially delayed these proceedings including issuance of the final judgment of dismissal. Further, Respondent states that after all the above, Petitioner is in the same position he was at the initiation of his Motion for Modification Statement at 5. Assuming that, by this statement, Respondent suggests that the Motion for Modification was meritless, this is contrary to the fact that, rather than realizing that he had no case, after filing the Motion for Modification and several phone conferences with the Court regarding these proceedings, Petitioner realized that this Court would not enforce even it s own orders and, therefore, certainly not the Childrens right to spend adequate time with their father. The most recent we example of this was the June 11, 2009 telephone conference in which the Court, not only, refused to enforce the terms of the February 13, 2008 Supplemental Judgment Re: Modification of Parenting Time [Supplemental PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 14

Judgment] but instructed Petitioner not to assist his son Alex with his school grades. This issue arose in June of 2009 when Petitioner sent a letter to Respondent s attorney stating: Please be advised that I have discussed the summer parenting time with the children and Alex has informed me, on two separate occasions, that he would like to stay with me and my wife in Moab for a six week period beginning on June 19, 2009. As you are aware, paragraph 4 on page 2 of the February 13, 2008 Supplemental Judgment Re: Modification of Parenting Time expressly provides: If the children express an interest in staying with Father for longer periods during the summer parenting time, the parties shall respect the children s wishes. The Court has confidence that Mother will honor requests by the children for longer visits if such request is made. I have therefore purchased a round-trip ticket for Alex for the period of June 19 through July 31 and Ms. Finch will need to drop him off and pick him up from the airport on those dates., Letter to S. Williams (June 9, 2009). (Attachment 6). In response to this letter, Respondent s Attorney contacted the court and scheduled a phone conference with Judge Tennyson for June 11, 2008. During the phone conference Petitioner forwarded to the Court multiple notices that he received from Alex s teachers informing Petitioner of multiple classes and homework assignments that Alex had missed and asking Petitioner to speak to his son about such missed classes and assignments. In addition, during the phone conference, Petitioner informed the Court that he had attempted to help Alex make up these missed classes and assignments via telephone but that this was not working and the only way to effectively assist Alex was to be present with him one on-one to work with him together on addressing the problem. Judge Tennyson s response to Petitioner s request, however, was to inform Petitioner that it was inappropriate to assist his son with school work during proceedings for a motion to modify parenting time. PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 15

More importantly, Petitioner filed the motion to dismiss because, he realized that, as long as these proceedings continued his relationship with his children would continue to be severely damaged. Mr. Fearl s appointment, for example, illegally terminated Petitioner s parent rights and the Children s constitutional rights to spend adequate time with their father by authorizing Mr. Fearl to directly interfere with Petitioner s ability to engage in a parent-child relationship with his children. This is illustrated by the attached of letter dated June 9, 2009 (Attachment 7) from Mr. Fearl addressed to Petitioner in which once again, without any basis in fact or conducting even a reasonable investigation of such facts, Mr. Fearl accuses Petitioner of putting substantial pressure on Alex to get him to agree to a lengthy six week visit with you in Utah. In addition, Mr. Fearl s letter demands that Petitioner not to talk to his children about travel and parenting time plans and threatening Petitioner with a potential ethical violation if he did so. Not only was this threat entirely inappropriate, it resulted in the termination of Petitioner s Parental Rights and damaged the best interest of the children by forcing Petitioner to stop discussing the importance of spending time with their father and family. 1 1 As Petitioner s June 1 letter to Mr. Fearl provides: You, however, are misinterpreting placing the children in the middle of this dispute with a parent s duty to discuss such matters with ones children. In this case, for example, due to Anna s age and the influence of her mother and the legal system, she has become confused about the importance of spending time with her father. In fact, as illustrated by the statements and recommendations in your letter, your participation in this matter has seriously hampered my ability to parent my children by making it easier for them to avoid my attempts to insure that they spend less time in shopping malls, at movies, in front of the television set, etc and more time with me involved in educational, outdoor and other pursuits important for healthy development. The conversation that you refer to as dragging the children into the middle of parenting time disagreements in actuality, therefore, are my attempts to explain to her the importance of spending time with me which is a discussion no other person involved in this dispute has seriously engaged in with either of the children. PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 16

In addition, Mr. Fearl s demands regarding discussing parenting time with his children was directly contrary to paragraph 4 on page 2 of the February 13, 2008 Supplemental Judgment which expressly states If the children express an interest in staying with Father for longer periods during the summer parenting time, the parties shall respect the children s wishes. The Court has confidence that Mother will honor requests by the children for longer visits if such request is made. As expressed, therefore, in Petitioner s June 5 letter to Respondent s attorney, and as required under the terms of the Supplemental Judgment Petitioner had merely asked Alex if he wanted to stay with Petitioner for six weeks and than had made it clear that the decision was up to Alex to which Alex replied yes. As a result, with his parent rights and the Children s constitutional rights effectively and illegally terminated and his relationship with his children held hostage by this Court and Mr. Fearl as long as the proceedings continued, Petitioner had no choice to but to dismiss his Motion to Modify so that the Court and Children s Attorney would return his parental rights and the Children s constitutional rights and he could begin to restore the damage to his relationship with his children and start making an effort to assist his son in school again. 2 2 Assuming that the same position statement could be interpreted as Respondent s attempt the request for Attorney Fees because she alleges that she is the prevailing party, contrary to such claim, however, prevailing party fees may not be awarded in a dissolution proceeding. The prevailing party fees provided for in this section may not be awarded in Proceedings under the provisions of ORS chapters 25, 107, 108, 109 and 110. ORS 20.190(6)(c). Further, there is no prevailing party in a dissolution proceeding. According to the Oregon Court of Appeals: As the Supreme Court noted in Haguewood, the varieties of relief involved often render it difficult to determine which party prevails in a dissolution action. 292 Or at 212. In that regard, it is not surprising that the statutes do not condition an award of attorney fees by a trial court in a dissolution proceeding on one party prevailing over another. ORS PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 17

Finally, Respondent claims that The children s summer was unsettled and unpredictable given the lack of clear information provided by Petitioner. Statement p. 5. Respondent, however, noticeably fails to mention that under the current parenting plan Petitioner cannot notify Respondent in a timely fashion of the dates that he will be exercising parenting time because the Plan, which places an undue pardon on Petitioner to cover all of the travel expenses, makes it impossible for Petitioner to know whether he can afford the travel costs until such time as Petitioner is able to come up with the funds which usually amounts to a significant effort that cannot be completed until the last minute. Further, it is clear that the so called lack of clear information provided by Petitioner is a misrepresentation of the actual facts since, as provided herein, that even though Petitioner made such plans abundantly clear through his June 15 letter addressed to counsel for both the Respondent and the Children, Respondent s and the Children s Attorney s attempted to harass and intimidated Petitioner and drive up attorneys fees through multiple letters sent to 107.105(1)(h).To embark on such a determination in a dissolution case would require evaluating the extent to which various combinations of child custody, visitation, property distribution, and support awards result in a more or less favorable judgment. It is, in brief, an intrinsically impossible determination. In re Saunders, 158 Or. App. 601, 606-07 (1999). The Court in Saunders relied fairly heavily on In re Haguewood, 292 Or. 197 (1981), for its discussion of attorney fees in dissolution cases. While brief, the discussion in Haguewood apparently arose from the Court s simple and straightforward observations of the statutory language of ORS 107.105(1)(h) and the obvious differences between dissolution proceedings and other civil cases: First, we observe that the statute is not intended to compensate the prevailing party. Indeed it is often difficult to determine which party prevails in a dissolution suit. If the statute were so construed, the husband, as successful petitioner, would be entitled to attorney fees and costs. He makes no such claim and the statute makes no such restriction. Haguewood, 292 Or. at 212-13. The Court recognized in Haguewood the irrationality of recognizing every petitioner who successfully sued for, and was granted, a divorce as a prevailing party. It makes no sense and has no place in dissolution proceedings. PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 18

Petitioner and attempting to involve the court in non-existent confusion and an effort to obtain irrelevant information about Petitioner s day-to-day parenting time activities. IV. Respondent s Listed Additional Factors do no Support an Award of Attorney Fees in this Matter. Respondent maintains that the Court should consider, the same factors as well as those checked below in determining a reasonable Attorney fee award the time and labor required in the proceeding. Statement at 3. V. The Court Should Consider Additional Factors in Determining whether to Award Attorneys Fees. ORS 20.310(1)(c) requires the Court to consider The extent to which an award of an attorney s fees in the case would deter others from asserting good faith claims or defenses in similar cases. Through this appeal, Father has asked for nothing more than to spend sufficient time with his children to maintain a parentchild relationship with them and the Motion to Modify was filed entirely in good faith and for legitimate reasons in the best interest of the children. however: Reply at 4. As stated in Petitioner s Reply in re: Motion for Modification, Respondent maintains that Petitioner should be responsible for paying on-half (50%) of all uninsured and uncovered medical and dental expenses on behalf of the minor children. Response at 2. This request, however, is consistent with Respondent s past attempts to retaliate against Petitioner whenever he asks the Courts to allow him to spend sufficient time with his children. The request for Petitioner to pay these expenses, therefore, is merely intended to intimidate Petitioner into withdrawing the Motion. PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 19

It is clear, therefore, that the Statement was filed, in part, to intimidate not only the Petitioner but others from filing claims to prevent the clearly harmful effects on children and the parent child relationship when lower courts make illegal decisions on parenting time. The Court, therefore, may dismiss the Statement solely on the basis that granting of the Attorney Fees requested in the Statement would prevent Petitioner s and other appeals being filed on a good faith basis. The Oregon Supreme Court, for example, provides that [a]fter considering the required factors and any objections to the petition for attorney fees, a court in a hypothetical case may conclude that no attorney fee award is appropriate because, as contemplated by ORS 20.075(1)(c), an attorney fee award in the case would deter others from asserting good faith claims McCarthy v. Oregon Freeze Dry, Inc. 327 Or 185, 188, 957 P.2d 1220 (1998). VI. Violation of Petitioner s and The Children s Rights to Equal Protection of the Law Under the 14 th Amendment to the United States Constitution. For the reasons provided, herein, including: the effective termination of Petitioner s parental rights and the failure to act in the best interest of the children by this Court and the Children s attorney; the fact that each of Petitioner s claims and motions were brought in good faith and for legitimate reasons; the attempts to harass and intimidate Petitioner and delay the issuance of the judgment by counsel for the other parties, the granting of Attorney Fees listed in the Statement would result in clear violations of Petitioner s and the Childrens rights provided by the United States and the State of Oregon Constitutions. Further, if the Attorney Fees request are approved, in addition to bias against Petitioner, such approval, can only be interpreted as the Courts clear desire to maintain the attorneys fee industry and the status quo in PETITIONER S RESPONSE TO STATEMENT FOR ATTORNEY S FEES P. 20