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In re Marriage of Murray

Court of Appeals of Oregon

September 20, 2017

In the Matter of the Marriage of Laura Diane MURRAY, Petitioner-Appellant, and Justin Colby MURRAY, Respondent-Respondent.

          Argued and submitted August 9, 2016

         Marion County Circuit Court 10C33437; Thomas M. Hart, Judge.

          Lauren Saucy argued the cause and fled the brief for appellant.

          Richard F. Alway argued the cause and fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case 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.

         [287 Or. 810]

          TOOKEY, J.

         In this 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.

         Neither 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 hearing.

         Up 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 starting kindergarten.

         At the 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.

         Father 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 father."

         The 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 court stated:

[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 ...

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