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In re Marriage of Miller

Court of Appeals of Oregon

March 4, 2015

In the Matter of the Marriage of Angela MILLER, Petitioner-Appellant, and Russell E. MILLER, Respondent-Respondent

Argued and Submitted July 21, 2014

Lane County Circuit Court 151113362. Ilisa Rooke-Ley, Judge.

Reversed and remanded with instructions to enter an award of custody to mother; otherwise affirmed.

Beth Eiva argued the cause and filed the reply brief for appellant. On the opening brief were Sarah Peterson and Metcalfe & Peterson LLC.

James A. Palmer argued the cause and filed the brief for respondent.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.


Page 473

[269 Or.App. 437] ARMSTRONG, P. J.

In this custody case, mother appeals a judgment of dissolution awarding custody of their two children to father.[1] Mother argues that the trial court legally erred in its application of the statute that governs child custody awards, ORS 107.137. We agree. We conclude that the trial court impermissibly relied on the " conduct, marital status, income, social environment or lifestyle" of mother, ORS 107.137(3) (2011), amended by Or. Laws 2013, ch 72, § 1, in its decision to grant custody to father.[2] We also conclude that the trial court legally erred in concluding that ORS 107.137(1)(f)--willingness and ability of a parent to foster a relationship between the child and the other parent--preponderated in favor of father based on mother's move to a new residence and the concomitant change in the children's school. Accordingly, we reverse and remand to the trial court with instructions to enter an award of custody to mother based on the statutory preference for the primary caregiver, ORS 107.137(1)(e), and otherwise affirm. Our conclusion obviates the need to address mother's argument under ORS 107.137(2) that the trial court erred in concluding that father had not abused her.

As a preliminary matter, we decline mother's request that we exercise our discretion to review this case de novo, ORS 19.415(3), because it is not an exceptional case that merits such review. Accordingly, we state the facts consistently with the trial court's express and implied findings, to the extent there is evidence in the record to support them, and review the trial court's legal conclusions for legal error. Nice v. Townley, 248 Or.App. 616, 618, 274 P.3d 227 (2012).

A couple of years after mother and father married, father enlisted in the Army. Mother and father then had two children together. Since her first pregnancy, mother has not worked outside of the home. Father was deployed overseas for 12 months during mother's first pregnancy and the birth [269 Or.App. 438] of that child and again for 14 months when the children were 3.5 years old and 18 months old, respectively. In mid-2008, father obtained an assignment in Eugene where mother had established a family home while father was deployed. Since 2008, father has had to leave the state about once a year for four to eight week periods for training. As a result of father's career, mother has been the primary caretaker of the children throughout their lives. Both parents are involved and appropriate with the children, and each agrees that the other is a good parent. By all accounts the children are happy, healthy, well-adjusted, " wonderful" children.

In April 2011, mother and father separated, although at first father remained in the family home. After an incident between mother and father in late April, father moved out. In June 2011, father moved in with his girlfriend. Around the same time, mother also began a relationship and became pregnant, but she and her boyfriend have not lived together. At the time of trial, mother's boyfriend was living with his mother, sister, and nephew in Lebanon, Oregon. Early on, father ran a background check on mother's boyfriend and discovered that he had prior convictions for DUII in 2003, theft in 2004,

Page 474

and methamphetamine possession in 2009, and was charged with driving while suspended in 2010. Mother testified that her boyfriend had already told her about the DUII and his suspended license and was honest about the other convictions when she asked him about them. Father also learned that the boyfriend's ex-wife had obtained a restraining order against the boyfriend during their divorce in 2006. Mother spoke to both her boyfriend and his ex-wife about that order and learned that it resulted from verbal altercations, that her boyfriend had not challenged it, and that it is no longer in effect. Mother's boyfriend has not used methamphetamine since his drug conviction. She allows the children to spend unsupervised time with her boyfriend when she runs errands, and she testified that he is appropriate with them and safe. Father does not approve of the children spending any time with the boyfriend because of his history.

Since the separation, mother has been living on financial aid she receives to attend college classes. After father moved out of the family home, the " house wasn't being [269 Or.App. 439] paid for," and father continued to come by and let himself in with his key without knocking. In September 2011, mother moved herself and the children in with a female friend in Junction City, which is 15 miles away from the family home. The Junction City residence is closer to the university where mother takes classes and somewhat closer to her boyfriend's home. In Eugene, the children had attended a Japanese immersion school located about a 10-minute drive from the family home. The move required the children to change schools to one that was open only four days a week. Mother takes the children to school in the mornings, but they ride home on the school bus, which takes an hour, because that is their preference. The children are on track in their new school, and one child's reading has improved since the move.

At the time of trial in January 2012, mother was not working but was continuing to attend school part time with the plan to finish her environmental chemistry degree in two years. She was preparing to give birth in the next month, but had not made plans with her boyfriend, who was not working, for him to contribute to her medical expenses or the child's support. Father had returned to living in the family home in Eugene with his girlfriend.

The trial court awarded custody of the children to father after a lengthy oral ruling that was incorporated into the final judgment. In making its ruling, the trial court announced findings and conclusions with regard to each factor under ORS 107.137(1). That statute provides, in part:

" (1) Except as provided in subsection (5) of this section, in determining custody of a minor child under ORS 107.105 or 107.135, the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of ...

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