In re the Marriage of Dominguez

961 P.2d 906, 154 Or. App. 430, 1998 Ore. App. LEXIS 922
CourtCourt of Appeals of Oregon
DecidedJune 10, 1998
Docket15-95-03733; CA A96328
StatusPublished
Cited by4 cases

This text of 961 P.2d 906 (In re the Marriage of Dominguez) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Dominguez, 961 P.2d 906, 154 Or. App. 430, 1998 Ore. App. LEXIS 922 (Or. Ct. App. 1998).

Opinion

LINDER, J.

Father appeals a modification of a dissolution judgment giving mother judgment against father for the amount of the debt on her van, awarding custody of the parties’ two children to mother, granting father visitation 35 percent of the time, and ordering father to pay child support based on his potential income. On de novo review, ORS 19.415(3), we modify the judgment.

The marriage was dissolved in November 1995. The parties agreed to joint custody of their two children, ages six and four years at the time. Before the dissolution, thé parties had voluntarily worked out a 50-50 visitation schedule. Upon agreeing to joint custody as part of the dissolution, they essentially continued the same evenly divided visitation schedule, one that required the children to make frequent transitions (often several times a week) between the parents’ homes. In February 1996, father filed a Motion and Order to Show Cause seeking to have custody awarded to him and to have a visitation schedule set for mother.

At the hearing in October, Carl Peterson, a psychologist who had performed a custody evaluation, initially recommended that joint legal custody continue, with an arbitrator to settle disputes. Peterson altered his recommendation and supported awarding custody to mother when he learned that joint custody was not an option and that father was considering moving to Yelm, Washington. Peterson supported giving custody to mother under those circumstances because he thought that moving the children to Washington would be detrimental to them, and he believed that mother would be least resistant to cooperation between the parties. He seemed to support an evenly divided visitation schedule of one week on and one week off for each parent, eventually moving to two weeks on and two weeks off. Mother testified that if she were given custody, an award of 50 percent visitation to father would be appropriate, although she expressed dissatisfaction with the then current schedule of almost daily transitions.1

[433]*433In a November 15th letter opinion, the trial court awarded custody to mother and asked the parties to work out a mutually acceptable visitation schedule within 14 days. Failing that, each party was to submit a proposal to the trial court. As it happened, the parties did not agree, and each side submitted a letter proposal to the court. At that point, mother proposed a visitation schedule giving father visitation approximately 35 percent of the time. Father proposed a 50 percent visitation schedule. Both parties also addressed the proper amount of child support to award. In that regard, father informed the court for the first time that he had been laid off his job, was then unemployed, and was planning to attend the University of Oregon, beginning in January 1997.

The trial court adopted mother’s proposal and asked her attorney to prepare a judgment in accordance with it. That judgment was signed January 15,1997. Father appeals, raising four assignments of error.

In his first assignment of error, father claims that the trial court erred in giving mother a judgment for the amount of the debt on her van without eliminating father’s obligation under the original judgment to also pay the creditor for that same debt. Mother implicitly acknowledges that twice obligating father to pay the debt is impermissible, but she urges that there is no double obligation in fact because mother no longer can enforce the original obligation. Mother does not explain how the current judgment eliminates the obligation under the original dissolution judgment. The requirement under that judgment that father “protect, indemnity and hold [mother] harmless” from the $3,700 debt owed to the creditor on mother’s van is an aspect of the property division award. As such, it cannot be modified or eliminated. Spady v. Graves, 307 Or 483, 488, 770 P2d 53 (1989). By giving mother a judgment against father for $3,042.47, the trial court necessarily twice obligated father for the same debt or modified the earlier property division, either of which is error. See Murray and Murray, 88 Or App 143, 744 P2d 1005 (1987) (clarification of judgment ordering husband to [434]*434pay balance due on credit card accounts by awarding a money judgment was impermissible modification of property division). We agree with father that the judgment for that amount must be vacated.

Father’s second assignment of error challenges the trial court’s award of custody to mother. We do not discuss our resolution of that issue, except to observe that on de novo review, we find no persuasive reason to disturb the trial court’s decision. See Meier and Meier, 286 Or 437, 446, 595 P2d 474 (1979) (“[I]n making the determination of the best interests of the child, the trial judge is in a far better position to weigh the various factors which enter into the problem, and his decision should not lightly be disturbed by a court on appeal.”).

In his third assignment, father claims that the trial court erred in granting him too little visitation. Father argues that the evaluating psychologist, Peterson, recommended a 50 percent visitation schedule for father, as did mother, both in her UTCR 8.010 statement and in her trial testimony. He points out that mother asked for reduced visitation for father only after she learned that she would receive custody of the children. Father argues that mother should be held to her original position, citing Reich and Reich, 150 Or App 311, 946 P2d 319 (1997), as a case presenting a similar situation.

„ In Reich, this court increased the father’s visitation where the mother had proposed before trial that father receive more visitation than the court awarded, an independent custody evaluator recommended such a schedule, and the mother opposed the greater visitation for the first time on appeal. Id. at 315. Mother attempts to distinguish Reich, arguing that the father’s status as the primary care giver in that case was the deciding factor in our adjustment of the visitation. However, nothing in the opinion reflects that. At most, the father’s status in that case may have been one of several factors the court considered. In our view, Reich turned on its particular facts and does not dictate a result one way or the other in this case.

Based on our review of the record in this case, we conclude that father should have a 50 percent visitation [435]*435schedule. In her trial testimony, mother unequivocally supported that level of visitation because she thought it was in the children’s interests for father to remain as involved with them as he had been under the parties’ prior agreement. Her only dissatisfaction with the schedule they had followed was with the excessive number of transitions; she therefore supported a schedule that would reduce transitions to and from each parent. The evaluating psychologist essentially made the same recommendation, emphasizing in his testimony the important part father had taken and should continue to take in the day-to-day aspects of the children’s lives.2 On appeal, mother provides no persuasive argument for why father’s visitation should be less than the originally agreed to 50 percent. Nor did the trial court, in ordering a schedule of less than 50 percent, explain why reduced visitation was in the children’s interests.

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961 P.2d 906, 154 Or. App. 430, 1998 Ore. App. LEXIS 922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-dominguez-orctapp-1998.