Wanting and Wanting ( 2020 )

480
Argued and submitted August 11; custody award vacated and remanded,
otherwise affirmed September 16, 2020
In the Matter of the Marriage of
Carmen Yvonne WANTING,
Petitioner-Appellant,
and
Derek Jones WANTING,
Respondent-Respondent.
Marion County Circuit Court
18DR20756; A171398
475 P3d 127
At mother’s Informal Domestic Relations Trial, she presented evidence that
she was the primary caregiver of her children. The trial court awarded custody to
father and, in doing so, did not account for the statutory primary-caregiver pref-
erence under ORS 107.137(1)(e). Mother appeals, assigning error to the court’s
award of custody to father. She contends that the court failed to properly account
for the statutory preference afforded to a primary caregiver. Held: The trial court
erred in failing to account for the statutory primary-caregiver preference under
ORS 107.137(1)(e) as required by Nice v. Townley, 248 Or App 616, 274 P3d 227
(2012).
Custody award vacated and remanded; otherwise affirmed.
Mary Mertens James, Judge.
Daemie M. Kim argued the cause for appellant. Also on
the brief was Law Office of Daemie M. Kim.
No appearance for respondent.
Before Lagesen, Presiding Judge, and Kamins, Judge, and
Kistler, Senior Judge.
LAGESEN, P. J.
Custody award vacated and remanded; otherwise affirmed.
Cite as 306 Or App 480 (2020) 481
LAGESEN, P. J.
Mother appeals a general judgment of dissolution
entered following an Informal Domestic Relations Trial
under Uniform Trial Court Rule (UTCR) 8.120. She assigns
error to the trial court’s decision to award custody of the
couple’s two children to father. She argues that the court
misapplied ORS 107.137 in making that custody determi-
nation and, in particular, failed to properly account for the
statutory preference afforded to a primary caregiver in the
manner required by our decision in Nice v. Townley, 248
Or App 616, 274 P3d 227 (2012). We agree and reverse and
remand.
The parties were married in April 2010; mother
initiated this dissolution proceeding in September 2018. In
the interim, mother gave birth to the couple’s two sons, who
were seven and three at the time she filed for divorce.
The parties attempted without success to mediate
their case. Thereafter, they both agreed to proceed with an
“Informal Domestic Relations Trial” under UTCR 8.120.
That provision, which was added to the UTCRs in 2017 fol-
lowing a pilot program in Deschutes County,1 provides for
a procedurally relaxed and summary dissolution trial if
the parties agree to it by filing a “Trial Process Selection
and Waiver for Informal Domestic Relations Trial.” UTCR
8.120(2).
Because of the relaxed procedures, a UTCR 8.120
trial differs in some significant ways from the usual trial.
For example, only the parties and any expert may testify. See
generally UTCR 8.120(3). The parties are not subject to cross-
examination. UTCR 8.120(3)(d). The court does all question-
ing even if the parties are represented by counsel: “The party
is not questioned by counsel, but may be questioned by the
Court to develop evidence required by any statute or rule.”
UTCR 8.120(3)(c). Only “brief legal argument” is permitted.
UTCR 8.120(3)(i). The court must make “best efforts * * * to
issue prompt judgments,” although taking a matter under
advisement is allowed if needed. UTCR 8.120(3)(j).
1
See William J. Howe III & Jeffrey E. Hall, Oregon’s Informal Domestic
Relations Trial: A New Tool to Efficiently and Fairly Manage Family Court Trials,
55 Fam Ct Rev 70 (2017).
482 Wanting and Wanting
In connection with those requirements, both par-
ties signed UTCR Form 8.120.1. In those signed forms, they
acknowledged, among other things, that they were waiving
the application of the rules of evidence and agreeing that
the court could “determine what weight will be given to doc-
uments, physical evidence, and testimony that is entered as
evidence during the Informal Domestic Relations Trial pro-
cess.” See UTCR Form 8.120.1.
The parties then proceeded to the contemplated
informal trial, at which each party sought custody of the
couple’s children. Inquiring into that issue with mother, the
court elicited the following information about the allocation
of parenting responsibilities between the two parties:
• Mother had “been a stay-home mom for * * * almost
the entire time of [the] marriage.”
• In September 2017, a year before she filed for
divorce, mother started a part-time job in childcare
for the YMCA to which she had been permitted to
take her own children, something she did most of
the time.
• For the past three weeks, the children had been in
daycare while mother worked at her new job as a
legal assistant.
• Father had watched the children when she had
errands to run.
• For the past three months, the couple had been
coparenting but, before that, mother “was exclu-
sively the primary caretaker of these children,”
because father had been employed full time at first,
and then became a full-time student, all the while
maintaining a side business working on cars.
• While father was enrolled as a student, he did not
take care of the children, sometimes leaving before
they were up, and returning “to put a blanket over
them at night.”
• Mother did not question father’s ability to coparent
their children.
Cite as 306 Or App 480 (2020) 483
The court also explored the issue of parenting with
father, eliciting from him the following information:
• He wanted them to grow up to be good men, with
good relationships with their families, including
with their mother.
• He had had “to learn how to deal with discipline,” in
view of his own upbringing.
• He thought he and mother should share parenting
time 50-50.
• He disagreed with mother’s characterization of his
degree of involvement, explaining that he had lots
of photographs of the kids, and that, “as of the last
year and a half,” he had “made it a point to be there
when they wake up, and get them out of bed, and
make sure they’re at the table and eat cereal.”
• He also played with them in the evenings and read
books to them.
After hearing from both parents, the court said
that one concern that it had was that the children remain
in the community. Both parents said they did not intend to
displace the children from the community. At the close of
the hearing, the court determined that it would award cus-
tody to father. Although mother had argued in her brief and
closing argument that she was entitled to the statutory pri-
mary caregiver preference, the court did not address that.
Instead, the court explained:
“With respect to custody of the children, the Court
finds, based on the testimony, that Father is the more suit-
able parent for custody. The Court finds that, in part, based
on the statutory construct for custody. The Court finds that
the Father has a more positive approach towards encourag-
ing a relationship between the children and their mother,
that he has the children’s best interests in mind and has
articulated how he will continue to parent them and to
encourage a loving relationship with both parents.
“And I’m not saying at all that Mother doesn’t have a
loving relationship with her children. That’s not what the
Court is concluding, but the Court does find that these are
difficult cases, but I find that based on all of the evidence
484 Wanting and Wanting
before the Court, that Father has in mind a means and a
method and an intent to continue to have a healthy rela-
tionship between these boys and both parents. And I find
that that provides the Court with a ground—grounds to
award custody to Father.”
Mother appealed. Pointing to our decision in Nice,
she contends that the trial court erred when it did not find
that she was the primary caregiver and did not account
for the statutory primary-caregiver preference under ORS
107.137(1)(e). Father did not appear on appeal.
Before turning to the merits of mother’s arguments,
we make two observations about the UTCR 8.120 trial pro-
cess. The first is that, by agreeing to that process, neither
party waived the right to appeal. See generally UTCR 8.120;
see also William J. Howe III & Jeffrey E. Hall, Oregon’s
Informal Domestic Relations Trial: A New Tool to Efficiently
and Fairly Manage Family Court Trials, 55 Fam Ct Rev 70,
74 (2017). The second is that, by agreeing to the process,
neither party waived the right to have the court apply the
correct legal standards in deciding the issues presented to
it or to have the court make factual findings supported by
the evidence presented to it.2 See generally UTCR 8.120.
That means that, if a party has preserved a particular legal
issue for appeal in the context of an informal dissolution
proceeding, we will review the trial court’s application of the
law just as we would on a review of a judgment resulting
from a formal domestic relations trial. Said another way, the
statutory constructs governing custody and other necessary
decisions that must be made in the course of dissolving a
marriage necessarily apply with full force in trials under
UTCR 8.120 (unless, of course, the parties agree to some
other arrangement).
As for the merits, this case is right in line with
Nice. There, on a record that, as described in the opinion,
is similar to (although more developed than) this one, we
vacated and remanded the court’s decision to award custody
2
This is not to suggest that ordinary preservation-of-error principles could
not result in a party losing the ability to raise a particular legal issue on appeal;
it is just to point out that, by agreeing to the informal process, the parties do not
by virtue of that fact agree that the court is not bound to follow the law.
Cite as 306 Or App 480 (2020) 485
to the father where the evidence compelled a finding that
the mother had been the parent who took care of the child’s
basic needs for the majority of his life, up until the begin-
ning of the dissolution proceeding, and where the court’s
analysis did not take into account the statutory preference
for the primary caregiver. Nice, 248 Or App at 622-23.
Similar too is Gomez and Gomez, 261 Or App 636,
323 P3d 537 (2014). There, we reversed and remanded for
reconsideration a decision to award custody to the father
where the trial court did not determine which party was
entitled to the statutory preference for the primary care-
giver and then did not account for that preference in its cus-
tody determination. Id. at 638. Instead, the court had deter-
mined that, at one point or another, each party had been a
primary caregiver but it never determined who was entitled
to the preference. Id. Relying on Nice, we held that “the pri-
mary caregiver is afforded a statutory preference, and that
preference must be properly considered.” Id.Here, as in Nice, what evidence the court elicited
about the parties’ caretaking roles compels the finding
that mother was the parent who, prior to initiating disso-
lution proceedings, was responsible for meeting the chil-
dren’s basic needs on a day-to-day basis. Although father’s
testimony would support a finding that he was much more
engaged in the children’s lives than mother let on, it would
not support a finding that he had been their caregiver before
the start of the dissolution proceedings. And, as in Gomez,
the court never determined which party was entitled to the
statutory preference, and never accounted for that prefer-
ence in its decision. Instead, perhaps because of the infor-
mal nature of the proceedings, the court’s statements on the
record suggest that it did not view the ordinary statutory
framework for deciding custody issues as wholly controlling.
The court stated that its decision was, “in part, based on the
statutory construct for custody.” (Emphasis added.) But the
statutory construct for custody, including the preference for
the primary caregiver, fully applied and required the court
to account for the statutory preference. Gomez, 261 Or App
at 638. For that reason, as we did in Nice and in Gomez, we
vacate the custody award. It is not clear to us the extent
to which the court’s child support determination may have
486 Wanting and Wanting
been based on the custody determination. To the extent
the court’s decision on remand requires it, the court should
reconsider any previous decisions that were based on the
prior custody decision.
Custody award vacated and remanded; otherwise
affirmed.