In the Matter of the Marriage of Laura Diane MURRAY, Petitioner-Appellant, and Justin Colby MURRAY, Respondent-Respondent.
and submitted August 9, 2016
County Circuit Court 10C33437; Thomas M. Hart, Judge.
Saucy argued the cause and fled the brief for appellant.
Richard F. Alway argued the cause and fled the brief for
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Mother appeals a supplemental judgment awarding
legal custody of child to father. Mother raises a single
assignment of error, arguing that the trial court legally
erred in its application of the statutory factors that govern
child custody awards under ORS 107.137. Held: The
trial court did not err in its application of the statutory
factors under ORS 107.137 and its "best interests"
determination was not contrary to the evidence or reason.
child custody case, mother appeals a supplemental judgment
awarding legal custody of child to father. Mother raises a
single assignment of error, arguing that the trial court
legally erred in its application of the statutory factors
that govern child custody awards under ORS 107.137. We
disagree; the court correctly applied the statutory factors
under ORS 107.137 and its "best interests"
determination was not contrary to the evidence or reason.
Accordingly, we affirm.
party requests de novo 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 [.]" Miller and
Miller, 269 Or.App. 436, 437, 345 P.3d 472 (2015).
Mother and father have one child together, born in 2009.
During their marriage, mother and father lived in the
parties' marital home in Stayton, Oregon. Mother and
father divorced when child was 18 months old, and mother and
child moved in with mother's parents in Stayton.
Following the divorce, father moved to Salem and, eventually,
to Donald, where he resided at the time of this custody
until the present hearing, mother and father shared joint
legal custody, and the most recent parenting plan awarded
father parenting time on his days off of work. Father had
Mondays and Tuesdays off of work and child stayed with
father, father's wife, and child's younger
half-sister from 6:30 p.m. on Sunday until 10:00 a.m. on
Wednesday. Mother is a teacher who has weekends, summers, and
other public school breaks off of work. In March 2014, mother
moved from her parents' home in Stayton to Albany,
Oregon, and filed this proceeding to seek the court's
assistance in selecting child's school and to modify the
parenting plan and custody arrangement to accommodate child
custody hearing, mother argued that she "should be
awarded custody of the parties' 5 year old child *** and
be allowed to register [child] in the [Spanish immersion]
school she has chosen near her residence in Albany because
she has been [child's] primary caretaker." [287 Or.
811] Mother continued, stating that "there is no good
way to accommodate Father's current 'work
weekend' of Mondays and Tuesdays." Mother proposed
that "[f]ather should have [child] every other weekend
beginning Friday after school and ending Sunday night."
Mother also contended that "[i]t does not necessarily
make sense" for child to be with father "more of
the summer * * * to 'make up' for lost time during
the school year, " because "[m] other is
consistently available" during the summer because of her
employment as a teacher.
responded, arguing that "[m] other's choice of
school would effect a major disruption and change of the
parenting plan that has been in place for three years,
dramatically alter[ing] the balance of time between father
and mother" with child and that father "seeks
custody simply because the court cannot order the
continuation of joint custody over either party's
objection." Father asserted that he should be given
custody and the court should adopt his parenting plan because
that "allows equal access to the child" in
conformity with Oregon's policy regarding parenting to
"[a]ssure minor children frequent and continuing contact
with parents who have shown the ability to act in the best
interests of the child" and to "[e]ncourage such
parents to share in the rights and responsibilities of
raising their children after the parents have separated or
dissolved their marriage." ORS 107.101. Under
father's proposed parenting plan, "[d]uring the
school year, the child would be with father during the school
week, and with mother every weekend with a Monday morning
return" and " [t] he inequality of time during the
school year would be 'made up' during the summer with
an alternating four weeks with mother and one week with
trial court set forth its ruling in a supplemental judgment
modifying custody, parenting time, and support. In that
judgment, the court stated that it "has applied the
evidence to and taken into consideration all the relevant
factors set forth in ORS 107.137, as more fully enunciated in
the ruling from the bench on July 16, 2014, " and,
"[b]ased thereon, it is in the best interests and
welfare of [child] that legal custody be awarded to
[father]." At that July 16 custody hearing, the trial
[287 Or. 812]
"Because of school coming up, I believe there is a
substantial change that warrants a different custody
arrangement, a lot of it doing with logistics. Now, I
understand when [mother's counsel] says it was dad's
choice by moving away [from Stayton], but it could have been
just as easy for mom to move to Keizer * * *.
"You each have a right to pursue separate lives that
will forever be tied together because you mixed DNA and
created a beautiful child. It's obvious that she's
beautiful, relatively happy. And you're right; I never
heard anything about either one of you being a bad parent
"But I'm still left with the issues, you know. When
I consider all the factors, and primary caregiver is a factor
that I would give to mom, and willingness and ability of each
parent to facilitate, encourage close and continuing
relationship, I give a slight edge to dad. But does that mean
anything? No. Other than [that] the rest of them are even and
I have to find a way to go forward with this.
"Ultimately, it comes down to the best interests of the
child, and there are a lot of other factors that go into
that. Not to disregard any of them, I've paid attention
to everything that's been said, considered, and reviewed
the items that have been put before me.
"My issue is that the law does not ask that I
effectively cut one parent out of the equation and I
can't help the rigidity of either one of your schedules.
And to that end, I'm going to award custody to dad[.] ***
"*** And the downside about Mom's position was it
effectively cut dad out of the equation *** [.]
"The sibling relationship is important, and sometimes
that's hard to digest, but I suppose you know [child]
well enough to know she cares for [her ...