Matter of Marriage of Jewell

BUTTLER, J.

Wife appeals from a decree dissolving the marriage of the parties, contending that she should have been granted custody of the minor children of the parties, a girl, age twelve, and a boy, age nine, and also contending that the division of the marital assets was not just and equitable. We affirm the award of custody of the children, but modify the property distribution.

In awarding custody of the children to father, wife contends that the trial judge overreacted to wife’s extramarital affairs going back to 1970, including an extended affair with her sister’s husband, now former husband. Wife contends that there is no evidence that the affairs were shown to have adversely affected the children, and therefore did not justify taking custody of the children from her. See Niedert and Niedert, 28 Or App 309, 559 P2d 515, rev den (1977).

Our review of this lengthy record lends support to wife’s contention with respect to the trial judge’s reactions to wife, but taking the record as a whole we cannot say that the trial judge was clearly wrong in awarding custody of the children to father. Without detailing the evidence, it appears from the record that mother’s four year relationship with her sister’s husband has had an adverse affect on the two children, not because wife and her paramour engaged in sexual activity in the presence of the children, but because that affair has, apparently, caused a total breakdown in family relations between wife, her two sisters and brother, her parents, and the children’s cousins. Wife has been blamed for the dissolution of her sister’s marriage because of that extended affair, although wife denies that she was the cause of that dissolution. Further, the evidence indicates that mother has "excommunicated” herself from her family and that she has refused to allow the children to visit with mother’s parents or the children’s cousins.

On the other hand, father has maintained a close relationship with the children’s grandparents and their cousins. He indicates that it is his intention to continue the family relationships, both with his family and mother’s family. The evidence indicates that the children enjoyed being with their cousins and other relatives, and that it is unlikely that they would be able to do that successfully if custody were granted mother.

Accordingly, we affirm the trial court’s award of custody of the two minor children to father.

With respect to the property division, it appears that wife was awarded approximately $95,811 of the net assets having a total value of approximately $271,732. Although it is true that most of the property acquired by the parties was acquired as a result of husband’s exceptional ability to invest in, and manage, a substantial number of properties, in addition to carrying on his regular vocation, it is also true that wife has contributed her share to the marital estate as a homemaker and mother for over 12 years, and as a helper in cleaning and maintaining the properties. The parties were married while mother was still in high school, and mother had her first child when she was eighteen.

On the other hand, the trial court did not award child support to husband and neither do we; accordingly, there is some justification for giving husband the "long-half” of the marital assets. Kilpatrick and Kilpatrick, 38 Or App 159, 589 P2d 1153 (1979); Bainer and Bainer, 27 Or App 703, 556 P2d 1377 (1976). We conclude, however, that wife should be awarded more than the trial court awarded her, and that this increase should be accomplished by modifying the decree to award wife a judgment against husband for $65,000 (instead of the $50,000 judgment awarded by the trial court), payable over a period of 119 months. To accomplish this modification, paragraph 8 of the decree is modified as follows:

Respondent is awarded a judgment against petitioner in the sum of sixty-five thousand dollars ($65,000), which sum shall be paid at the rate of five hundred dollars ($500) per month, beginning September 1, 1979, until August 1, 1989, at which time the unpaid balance shall be due and payable. Interest shall accrue on the unpaid principal at the legal rate, beginning September 1, 1979.

Affirmed as modified.