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Ray v. Ray

November 3, 1972

RAY, RESPONDENT,
v.
RAY, APPELLANT



Appeal from Circuit Court, Clackamas County. Winston L. Bradshaw, Judge.

Patricia Watson, Law Clerk, Portland, argued the cause for appellant. With her on the brief were Jay D. Roth, Portland, and McCauley & Brown, and L. Ross Brown, Portland.

Raymond R. Bagley, Jr., Oregon City, argued the cause for respondent. With him on the brief were Jack, Goodwin & Urbigkeit, and Sidney A. Brockley, Oregon City.

Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.

Thornton

Defendant wife appeals from certain provisions of a divorce decree granted to plaintiff which terminated the marriage of the parties as of March 1, 1972. The trial court awarded the plaintiff both the custody of the minor child and all the property of the parties. Defendant does not challenge the divorce itself; however, she does contest the decree as to the award of child custody and as to the property division.*fn1

The parties married on February 2, 1968. During the marriage they had one child, Marcie Robin Ray, born November 23, 1968.

The first three years of this marriage apparently were relatively happy ones. However, during the last year the relationship of the parties deteriorated. As is not unusual in divorce cases, both parties tend to blame the other for this change. Whatever the cause, toward the end of the marriage defendant wife frequently left the home during days, evenings, and occasionally, over weekends. During this time she became involved with another man.

In May 1971 the defendant permanently left the

home and marriage. She, with the child, moved to Seattle, Washington. Plaintiff visited the child several times after the separation, each time returning her to the defendant. However, he provided no support, and the defendant and the child relied on public assistance and money from defendant's relatives for their only income.

Defendant complains of the award of custody of the minor child to plaintiff. She contends that since she is the mother, the court should have given her preference in determining custody. This preference has been abrogated by statute, ORS 107.105(1)(a), and is subordinate to the best interests of the child. See, Deardorff v. Deardorff, 2 Or App 117, 467 P2d 137 (1970).

This court reviews child custody on a de novo basis. Goode v. Goode, 4 Or App 34, 476 P2d 805 (1970).

Plaintiff, in the case at bar, challenged the defendant's fitness to care for the child, citing her marital misconduct at the end of the marriage. Defendant also attacked the plaintiff's fitness, claiming that he did not know how to care for the ...


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