Quigley and Quigley ( 2023 )

820
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted May 5, parenting time determination in judgment of
dissolution vacated and remanded, otherwise affirmed July 6, 2023
In the Matter of the Marriage of
Katie Annette QUIGLEY,
Petitioner-Respondent,
and
John Michael QUIGLEY,
Respondent-Appellant.
Lane County Circuit Court
20DR05220; A176431
Charles D. Carlson, Judge.
Michael Vergamini filed the briefs for appellant.
Katie Annette Quigley filed the answering brief pro se.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Parenting time determination in judgment of dissolution
vacated and remanded; otherwise affirmed.
Nonprecedential Memo Op: 326 Or App 820 (2023) 821
TOOKEY, P. J.
Husband appeals a judgment of dissolution, raising
four assignments of error. He argues that the trial court
erred by (1) awarding wife retroactive child support in the
absence of a prior order or limited judgment awarding tem-
porary child support; (2) failing to equitably determine
the spousal support award to wife; (3) authorizing a “non-
judicial referee” to modify parenting time; and (4) failing to
make best-interest findings in determining parenting time.
For the reasons explained below, we reverse and remand.
First through Third Assignments of Error. We reject
husband’s first through third assignments of error, because
they were not preserved in the trial court and do not involve
“plain error.” ORAP 5.45(1) (“No matter claimed as error
will be considered on appeal unless the claim of error was
preserved in the lower court[.]”); Hickam and Hickam, 223
Or App 302, 305, 196 P3d 63 (2008) (“An error is ‘plain’ if
it is one of law, is not reasonably in dispute, and does not
require an examination of matters outside of the record.”).
Fourth Assignment of Error. Husband challenges
the trial court’s parenting time determination, contending
that the trial court plainly erred by “fail[ing] to apply the
statutory factors in determining the best interest of the
children with respect to parenting time as required by ORS
107.105(1) and ORS 107.137.” As explained below, we agree
with husband that the trial court plainly erred, and we
exercise our discretion to correct the error.
Because husband does not request de novo review,
“we review [the] trial court’s decision relating to parenting
time first for legal error to determine whether the trial court
applied the correct legal standard in making the challenged
best[-]interests determination,” and “[w]e review the court’s
best-interests determination itself for an abuse of discre-
tion.” Davison and Schafer, 308 Or App 513, 518, 479 P3d
1108 (2021) (internal quotation marks omitted).
“A court determines parenting time by evaluat-
ing what is in the best interests of the child[.]” Id. “The
best-interests analysis, in turn, requires the trial court to
822 Quigley and Quigley
consider the statutory factors in ORS 107.137(1).” Id. ORS
107.137(1) provides that the trial court “shall” consider:
“(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 facil-
itate and encourage a close and continuing relationship
between the other parent and the child.”
ORS 107.137(1). “We have repeatedly noted that no one factor
under ORS 107.137(1) prevails,” and “a court must assess all
the required statutory considerations in determining what
serves the children’s best interests.” Stancliff and Stancliff,
320 Or App 369, 379, 513 P3d 20 (2022) (emphasis added).
Here, in its written decision as to parenting time,
the trial court focused on charges against husband in a sep-
arate case and the effect that husband’s personal disputes
with wife had on the children; however, the trial court’s deci-
sion does not reflect a best-interests determination based on
consideration of all the statutorily prescribed factors in ORS
107.137(1). We agree that that is plain error, and—in light
of the interests of the parties and the gravity of the error—
we conclude that it is appropriate to exercise our discretion
to correct it. See Hickam, 223 Or App at 306 (concluding
that “the trial court plainly erred in denying husband par-
enting time without making [the statutorily required] find-
ings” and that “it is appropriate to exercise our discretion to
review the error” given that “the interests of the parties and
the gravity of the error are significant * * * and the ends of
justice would be served by remanding for further proceed-
ings”); see also McArthur and Paradis, 201 Or App 530, 535,
120 P3d 904, rev den, 339 Or 609 (2005) (parenting time
Nonprecedential Memo Op: 326 Or App 820 (2023) 823
decisions potentially implicate constitutional interests).
Accordingly, we vacate and remand. See Weems v. Winn, 272
Or App 758, 760, 358 P3d 322 (2015) (vacating and remand-
ing where “the trial court’s written decision indicates that
the court did not follow the methodology for making custody
decisions set out in ORS 107.137”).
Parenting time determination in judgment of disso-
lution vacated and remanded; otherwise affirmed.