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In re Marriage of Gomez

Court of Appeals of Oregon

March 19, 2014

In the Matter of the Marriage of ANGELINA GOMEZ, aka Angela Medina, Petitioner-Appellant, and JOAQUIN GOMEZ, Respondent-Respondent

Argued and Submitted: January 28, 2014.

Lane County Circuit Court. 151205649. Valeri L. Love, Judge.

George W. Kelly argued the cause and filed the briefs for appellant.

Jennifer J. Brown argued the cause for respondent. On the brief was Christopher J. Eggert.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 538

[261 Or.App. 637] TOOKEY, J.

Mother appeals a general judgment of dissolution of marriage awarding custody of the parties' children to father. She contends that the trial court improperly applied ORS 107.137(1),[1] which states that, in determining custody of a minor child, a court shall give primary consideration to the child's " best interests and welfare" and sets forth the factors that a court shall consider in making that determination.[2]

In its ruling, the trial court determined that father was the primary caregiver during the marriage and that mother was the primary caregiver since the date of separation, " but only through her actions in alienating [father.]"

[261 Or.App. 638] As we have previously stated, " [g]enerally, the primary caregiver is the party who has provided more care for the child and with whom the child has lived a majority of his or

Page 539

her recent life." Nice v. Townley, 248 Or.App. 616, 622, 274 P.3d 227 (2012). Like any other factor set forth in ORS 107.137(1), the primary caregiver factor is not dispositive. ORS 107.137(2); Maurer and Maurer, 245 Or.App. 614, 628, 262 P.3d 1175 (2011) (" No single statutory factor is dispositive." ). However, the primary caregiver is afforded a statutory preference, and that preference must be properly considered. Nice, 248 Or.App. at 623.

In this case, the trial court failed to properly consider the preference in ORS 107.137(1)(e) in favor of the primary caregiver. Although the trial court determined that each party was, at one time, the primary caregiver, it failed to determine which party was entitled to the statutory preference.[3] Having failed to make that determination, the trial court then failed to balance that preference against the other factors set forth in ORS 107.137(1) related to determining custody of the parties' children. Accordingly, we vacate the custody award as well as the child support award--which is predicated on the custody award--and remand for reconsideration.[4]

Custody and child support awards vacated and remanded; otherwise affirmed.


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