Cummings and Cummings ( 2023 )

633
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted November 30, 2022, affirmed March 15, 2023
In the Matter of the Marriage of
Clifford Earl CUMMINGS,
Petitioner-Appellant,
and
Mary Ester CUMMINGS,
Respondent-Respondent.
Klamath County Circuit Court
20DR14972; A176844
Kelly N. Kritzer, Judge.
George W. Kelly argued the cause and filed the briefs for
appellant.
Nathan J. Ratliff filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
634 Cummings and Cummings
ORTEGA, P. J.
Father appeals a judgment of dissolution of his
marriage with mother. He assigns three errors to the court’s
determination awarding custody of their child, N, to mother
while allowing him parenting time. Father mainly argues
that the trial court was required but failed to make find-
ings indicating how it applied the applicable statute, ORS
107.137, to determine N’s best interest, and that the evi-
dence weighed in favor of giving custody to him. As we will
briefly explain, we find no error by the trial court and affirm
its judgment.
Father requests that we exercise our discretion to
review this case de novo, as we are authorized to do under
ORS 19.415(3)(b), or that we alternatively remand for the
trial court to explain its decisions in light of the ORS 107.137
requirements. We are not persuaded by father’s arguments
that his case is “exceptional” and, accordingly, we decline
his first request. See ORAP 5.40(8)(c) (limiting our de novo
review to “exceptional cases”). Hence, we review the trial
court’s conclusions for legal error, and determine if evi-
dence supports the trial court’s view of the facts. See Nice
v. Townley, 248 Or App 616, 618, 274 P3d 227 (2012). The
following background facts are undisputed.
Toward the end of the marriage, mother relocated
from Klamath Falls to Albany, taking N without father’s
knowledge. Father petitioned for dissolution of marriage
and moved for an order requiring mother to show cause as
to why she should not be required to return N to Klamath
Falls. Upon mother’s request, the trial court held a hear-
ing on father’s motion and declined to order mother to move
back to Klamath Falls, gave mother temporary custody of
N, and allowed father to have parenting time until a differ-
ent agreement could be reached. The parties went through
mediation but reached no agreement. At the dissolution trial
seven months after the show cause hearing, father renewed
his custody request, arguing that mother should have 50/50
parenting time only if she returned to Klamath Falls;
otherwise—if mother decided to remain in Albany—
he requested that she be awarded the Klamath County
Standard Long Distance Parenting Time plan. The court
Nonprecedential Memo Op: 324 Or App 633 (2023) 635
again awarded custody to mother and allowed father long
distance parenting time.
In his first assignment of error, father argues that
the trial court erred in awarding custody to mother with-
out explaining how it balanced the ORS 107.137(1) factors
to determine N’s best interest. However, the statute does
not require the court to provide such an explanation, and
father did not make a request for findings. See ORS 107.137
(containing no requirement of express findings); see also
ORCP 62 (allowing a court discretion to make findings in
the absence of such a demand); Underwood v. Mallory, 255
Or App 183, 186, 297 P3d 508 (2013) (“where the trial court
did not make specific factual findings but there is evidence
to support more than one legal conclusion, we presume the
court found the facts in a manner consistent with its ulti-
mate conclusion”). Here, at no point did father ask the trial
court to make findings, including after the court indicated
that it declined to do so.
Moreover, the record contains abundant testimo-
nial evidence concerning the parties’ dispute, and counsel
for both parties presented that evidence by reference to the
ORS 107.137(1) factors during their closing arguments before
the trial judge. Because the record suggests no reason for us
to believe that the trial judge acted in a manner contrary
to ORS 107.137, we reject father’s first assignment of error.
The cases father has cited requiring a remand involved sit-
uations in which there were reasons to question whether the
trial court understood what it was required to do;1 no such
reasons appear on this record.
We turn to father’s combined second and third
assignments, in which father essentially argues that the
trial court erred during both the temporary custody hear-
ing and the dissolution trial by awarding custody to mother
1
See Gomez and Gomez, 261 Or App 636, 638, 323 P3d 537 (2014) (remand-
ing where, after determining “that each party was, at one time, the primary
caregiver,” the trial court “failed to determine which party was entitled to the
statutory preference”); Nice, 248 Or App at 622-23 (remanding where an implied
finding that there was no primary caregiver was not supported by the record);
Henretty v. Lewis, 319 Or App 345, 350, 509 P3d 701 (2022) (remanding where the
trial court expressly refused to designate the primary caregiver where the record
supported a conclusion in mother’s favor).
636 Cummings and Cummings
while allowing her to remain in Albany. Father’s arguments
are not well taken for at least two reasons. First, the tempo-
rary custody order, which was entered seven months before
the judgment father appealed, is not before us. Second, the
trial court’s ruling was within its discretion and is supported
by evidence in the record. We note also that father’s citation
to a case governing when a parent is allowed to move after
custodial arrangements have been fixed is not well taken;2
at the time of the dissolution hearing, mother had already
relocated to Albany. Accordingly, we reject father’s combined
second and third assignments of error.
Affirmed.
2
Father cites to Sjomeling v. Lasser, 251 Or App 172, 285 P3d 1116 (2012),
which reviewed a trial court decision modifying a parenting plan to allow the
mother to move with the children.