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Orcutt v. Fries

2026-06-17No. A188204

Summary · law.co

Holding. The supplemental judgment modifying custody and parenting time was vacated and remanded to the trial court for further proceedings because the trial court erred in denying the father's request for a stay during military deployment without appointing counsel as required by federal statute.

A father serving overseas in the military requested that the trial court stay custody proceedings under federal law while deployed to Egypt. The court granted an initial 90-day stay but later denied a second stay request, reasoning that the father could litigate from abroad and was using the law strategically. The court proceeded to hear the mother's motion to modify custody from joint to sole custody in the mother's favor without appointing counsel for the father, despite his explicit request and objection. The appellate court found that federal law requires appointment of counsel when a court denies a second stay request for a service member, and the trial court's failure to do so constituted legal error that could not be found harmless.

The court emphasized that a substantive dispute existed over whether the mother had proven a sufficient change in circumstances to warrant modifying custody, and the absence of appointed counsel during this contested proceeding created a risk that the outcome was affected by the error. Accordingly, the appellate court could not conclude that the failure to appoint an attorney had little likelihood of influencing the custody determination.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a trial court must appoint counsel to a service member when denying a request for an additional stay under the Servicemembers Civil Relief Act
  • Whether the trial court's failure to appoint counsel was harmless error in a custody modification proceeding
  • Whether a service member deployed overseas was disadvantaged in litigating custody matters without legal representation

Procedural posture

The father appealed from a supplemental judgment modifying child custody and parenting time entered by the Jackson County Circuit Court while he was deployed overseas with the military.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

616 June 17, 2026 No. 551

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Beth ORCUTT,

Petitioner-Respondent,

v.

Robert FRIES,

Respondent-Appellant.

Jackson County Circuit Court

21DR03068; A188204

David J. Orr, Judge.

Submitted April 8, 2026.

Andy Simrin and Andy Simrin PC filed the brief for

appellant.

No appearance for respondent.

Before Shorr, Presiding Judge, Powers, Judge, and

O’Connor, Judge.

SHORR, P. J.

Supplemental judgment vacated and remanded.

Cite as 350 Or App 616 (2026) 617

SHORR, P. J.

Respondent Fries (father) appeals from a supplemental judgment that modified a previous domestic relations

judgment. The supplemental judgment modified custody from

joint custody with both parents to sole custody with petitioner Orcutt (mother). It also temporarily changed the parenting

time relating to the children’s time with father’s wife, stepmother. Mother does not appear before us. Father raises three

assignments of error that challenge the court’s ruling that

modified custody and parenting time. Because we agree with

father’s first assignment of error and it results in our vacating the supplemental judgment, we need not reach the other

assignments of error. As a result, we vacate the supplemental

judgment and remand this matter to the trial court.

The facts necessary for our opinion are largely procedural. Father and mother initially agreed to joint custody

of their two children, which was reflected in a general judgment. The parties also agreed that if father, who served in

the military, was on an overseas deployment, father’s weekend parenting schedule would be assumed by stepmother.

At a later point in time, father was deployed with the military overseas to Egypt for an extended period. Suffice it to

say that there was conflict between mother and stepmother,

particularly over an incident during the time that the children were with stepmother during her assumed parenting

time. Mother moved to change custody and parenting time.

Father alerted the trial court by letter that he was

serving overseas. Pursuant to 50 USC section 3932, which

is part of the Servicemembers Civil Relief Act, he asked

the court to stay all proceedings until he returned or, if

not stayed until that point, for at least 90 days. Father participated in some hearings through the internet from his

foreign military base, but the connection was not always

reliable. After the 90 days passed, father again asked the

court to stay the proceeding until he returned from overseas military service. In his written request, he specifically contended that federal law required that, if the court were

to deny his request, it must appoint him an attorney to represent his interests and could not enter a judgment without

doing so.

618 Orcutt v. Fries

The court denied father’s second motion to stay and

did not appoint him an attorney. The court observed that it

was required to grant the initial request for a 90-day stay

but concluded that it had discretion to deny a second request. The court noted that father had been able to file his own

motions from overseas, reasoned that he was able to litigate

matters, remarked that father had been able to successfully

articulate his positions and mother had more difficulty, and

further stated that father was using the law to his strategic

advantage. Father again objected—taking the position that

he was actually disadvantaged by being overseas because

mother had access to court staff while he did not have an

attorney to help him in Oregon. Although the court denied

father’s second motion to stay, it initially did not decide on mother’s motion to change custody for other reasons.1 At the

subsequent hearing on the merits of mother’s motion, the

court modified custody in favor of mother and temporarily

changed parenting time—again over father’s objection and

request for a stay while he was deployed overseas.

Father assigns error to that decision. Under 50 USC

section 3932(b), a person in military service, such as father, may request a stay of a civil proceeding, including a child

custody proceeding, and the court “shall” grant the stay for

90 days if certain conditions relating to the person’s active

military service and their notice of the proceedings are met.

Those conditions were met in this case, and the trial court

appropriately granted the initial 90-day stay. However, a

service member may seek an additional stay under 50 USC

section 3932(d)(1) “based on continuing material affect of

military duty on the servicemember’s ability to appear.” We

need not resolve whether the court erred in applying that

section or whether that section provided the court with a

wide range of discretion to deny the stay in these circumstances. Significantly, if a court denies the request for an

additional stay, “the court shall appoint counsel to represent the servicemember in the action or proceeding.” 50 USC

§ 3932(d)(2). That did not occur here despite father’s request

1

During this time, the court noted some procedural deficiencies in mother’s motion and attempted, pending resolution of the custody issues, to get the children their own counsel, which ultimately proved unsuccessful.

Cite as 350 Or App 616 (2026) 619

for an attorney. As a result, the trial court erred.2 We also

cannot say that there was little likelihood that father was

not harmed by the court’s failure to appoint an attorney

when father then immediately lost on mother’s pending

motion to change custody. Indeed, there was a substantive

dispute about whether mother proved a change in circumstances justifying a change in custody. See ORS 107.169(5)

(stating standard for change from joint custody). We cannot

say that the error, the failure to appoint the attorney, had

little likelihood of affecting the resulting change in custody. See State v. Cole, 323 Or 30, 36, 912 P2d 907 (1996) (court’s

error in accepting the defendant’s uninformed waiver of the

right to counsel was not harmless when the court could not

determine whether competent counsel may have assisted

the defendant). As a result, we vacate the supplemental

judgment modifying custody and temporarily changing

parenting time and remand to the trial court for further

proceedings.3

Supplemental judgment vacated and remanded.

2

We note that this proceeding arose at a time when courts throughout Oregon were having difficulty securing appointed counsel even for criminal defendants who have a constitutional right to counsel. See State v. Roberts, 374 Or 821, 826-27, 584 P3d 1217 (2026) (describing the “systemic, statewide public defense crisis” in Oregon in recent years that has resulted in an inability to promptly appoint counsel for all indigent defendants). Indeed, the trial court wanted to appoint counsel for the children here but could not secure an attorney for them. Still, under section 3932, the court could have extended the stay and, if it did not, that statute required appointment of counsel. The trial court could not both deny a stay and not appoint counsel.

3

Father also argues that the trial court plainly erred in not applying ORS 107.145(3), which provides, subject to limited exception, that a court “may not set aside, alter or modify any portion of a judgment * * * that provides for the custody, parenting time, visitation, support and welfare of a minor child of a deployed parent until 90 days after the completion of the deployed parent’s deployment” unless the matter was decided by the court before the parent’s deployment. It appears that that section might have application to these facts, but we need not decide the issue on a plain-error basis. We therefore decide this appeal based on the preserved federal statutory argument.