Nice v. Townley

• Decision Date: 14 March 2012
• Docket Number: 150900294,A144262.
• Citation: 248 Or.App. 616,274 P.3d 227
• Parties: In the Matter of the Minor Child of Brett Anthony NICE, Petitioner–Respondent, v. Sarah Marie TOWNLEY, Respondent–Appellant.
• Court: Oregon Court of Appeals

248 Or.App. 616

274 P.3d 227

In the Matter of the Minor Child of Brett Anthony NICE, Petitioner–Respondent,

v.

Sarah Marie TOWNLEY, Respondent–Appellant.

150900294

A144262.

Court of Appeals of Oregon.

Argued and Submitted May 26, 2011.Decided March 14, 2012.

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

Jeffrey E. Potter, Eugene, argued the cause for respondent. With him on the brief was Gardner, Honsowetz, Potter, Budge & Ford.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

ARMSTRONG, J.

Mother appeals a general judgment awarding custody of the parties' son, M., to father. She assigns error to (1) the court's award of custody to father, (2) a provision of the parenting plan that provides for an automatic revision of the plan to accommodate changes in father's work schedule, and (3) the court's determination that father is entitled to claim M. as a dependent for tax purposes. We write to address the first assignment of error and, as amplified below, vacate and remand the court's award of custody, which obviates the need to consider mother's other assignments of error.

We have the discretion in domestic relations cases to “try the cause anew upon the record or make one or more factual findings anew upon the record.” ORS 19.415(3); see Turner and Muller, 237 Or.App. 192, 194–96, 238 P.3d 1003 (2010), rev. den., 350 Or. 231, 253 P.3d 1080 (2011). Mother has requested that we review this case de novo, but we are not persuaded that this is an appropriate case for us to do that. See ORAP 5.40(8)(c); Turner, 237 Or.App. at 196, 238 P.3d 1003 (noting that we conduct de novo review only in exceptional cases). Hence, we review this case for legal error and state the facts consistently with those found by the trial court to the extent that there is evidence to support them.

Father and mother were in a dating relationship when mother gave birth to M. in September 2007, but they never married. Mother has lived her entire life with her parents, and, approximately a month or two before M.'s birth, father moved out of his parents' home and into mother's grandmother's home, which was on the same property as mother's parents' home. During the first five months of M.'s life, father spent approximately three to four hours each day with him.

Father moved back into his parents' home in February 2008 before moving into an apartment in a nearby town. Despite those moves, father continued to see M. three or four times a week for several hours at a time. In June, the parties ended their dating relationship but agreed to meet at church on Sundays so that father could see M. In the first week of July, father took a job and moved farther away from mother and M. Approximately one week later, father's work schedule changed, requiring him to work on weekends. As a result, the parties stopped meeting on Sunday and instead met every other week for a couple of hours.

After the parties broke up, father's efforts to contact mother and have more contact with M. were unsuccessful. He called mother once a week to arrange meetings and request parenting time. However, mother did not reliably return his calls and messages, and she denied his repeated requests to have M. stay with him overnight.

Father's mother planned a September party for M.'s first birthday. Mother asked that father not attend the party, and father's mother understood that a condition of mother bringing M. to the party was that father not be invited. Despite not being invited, father came to the party. In response, mother told father's mother that she needed to tell father to leave or mother would leave the party with M. Within a few minutes of father's arrival, mother took M. and left the party.

Father eventually moved back to his parents' home, but he did not see M. in October and was able to arrange a time to see him only once in November. Father asked to see M. on Christmas, but mother denied that request. She did allow father to see M. on New Year's Day.

In January 2009, father filed a petition seeking joint custody of M. with mother, if she agreed to that arrangement, or sole custody. After mother was served with father's custody petition, she and her father met with father and his parents. Mother asked that father and his family have no contact with her or M. until the petition was resolved.

Father thereafter moved the court to grant him temporary parenting time with M. pending resolution of father's custody petition. The court granted the motion after a hearing. The court's order gave father a progressively greater amount of parenting time with M. each month, culminating with father having seven days of parenting time each month with M.

The court held a hearing on father's custody petition in July. After hearing testimony, the court concluded that, before it made a final decision on custody, father “should have more parenting time with [M.] * * * so that the Court has more information [on which] to make [its] decision.” To that end, it increased father's parenting time so that M. would spend three days each week with father and four days with mother.

The court reconvened the custody hearing in October. At that hearing, father testified that M. had always lived with mother and that mother had probably been more available to M. throughout M.'s life than father had. Father also testified that mother is the parent who takes M. to the doctor, and mother testified that father has never taken M. to the doctor or the dentist.

At the conclusion of the hearing, the court stated its intention to award custody of M. to father. Over the course of the custody hearings and as reflected in the court's custody award, the court concluded that awarding custody of M. to father was in M.'s best interest. The court determined that each of the factors in ORS 107.137(1) weighed equally in each parent's favor except ORS 107.137(1)(f), i.e., “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” ¹ The court concluded that, if mother were awarded custody, she would continue to marginalize father's role in M.'s life, and, as a result, it awarded custody to father. Although the court did not explicitly determine which parent was M.'s primary caregiver, it did state that, before M.'s first birthday, mother had been M.'s primary parent.

Mother appeals, contending that the trial court erred in awarding custody of M. to father. Mother's challenge to the court's custody award reduces to an argument that the court erred in its application of ORS 107.137. ORS 107.137(1) provides that, “in determining custody of a minor child * * *, the court shall give primary consideration to the best interests and welfare of the child.” A trial court exercises discretion in making a custody award and is in a better position than an appellate court to weigh the factors that enter into that determination. Cooksey and Cooksey, 203 Or.App. 157, 168–69, 125 P.3d 57 (2005) (discussing the holding of Meier and Meier, 286 Or. 437, 446, 595 P.2d 474 (1979)).

ORS 107.137 provides the framework under which a court is to determine the custody of a child. It provides:

“(1) * * * [I]n determining the best interests and welfare of the child, the court shall consider the following relevant factors:

“(a) The emotional ties between the child and other family members;

“(b) The interest of the parties in and attitude toward the child;

“(c) The desirability of continuing an existing relationship;

“(d) The abuse of one parent by the other;

“(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and

“(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. * * *

“(2) The best interests and welfare of the child in a custody matter shall not be determined by isolating any one of the relevant factors referred to in subsection (1) of this section, or any other relevant factor, and relying on it to the exclusion of other factors.”

Thus, in making a custody determination, a court must consider each of the factors listed in ORS 107.137(1) and may not rely on any one factor to the exclusion of any other factor.

Mother contends that the court erred in its treatment of the factors in ORS 107.137(1). She specifically contends that the evidence in the record compels a finding that she was M.'s primary caregiver and that the court therefore erred in failing to properly consider the preference in ORS 107.137(1)(e) in favor of granting custody to M.'s primary caregiver. We agree with mother.

ORS 107.137(1)(e) requires a court making a custody determination to consider “[t]he preference for the primary caregiver of the child, if the caregiver is deemed fit by the court.” The court did not directly address that factor. However, its conclusion that all factors other than ORS 107.137(1)(f)—the willingness and ability of each parent to encourage a relationship between the child and the other parent—applied equally to both parents reflects an implicit finding that M. did not have a primary caregiver. We...