In re the Marriage of Morales

159 P.3d 1183, 213 Or. App. 91, 2007 Ore. App. LEXIS 739
CourtCourt of Appeals of Oregon
DecidedMay 23, 2007
DocketC 04-1902 DRB; A127614
StatusPublished

This text of 159 P.3d 1183 (In re the Marriage of Morales) 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 Morales, 159 P.3d 1183, 213 Or. App. 91, 2007 Ore. App. LEXIS 739 (Or. Ct. App. 2007).

Opinion

ORTEGA, J.

This appeal from a general judgment of marital dissolution involves only the question of who should have custody of E, the youngest of the parties’ two sons. The parties agreed that mother would have custody of the parties’ older son, J, but father now challenges the trial court’s decision that mother should also have custody of E. We review de novo, ORS 19.415(3), and, having given due consideration to the trial court’s ability to assess the parties’ credibility and demeanor, Cooksey and Cooksey, 203 Or App 157, 172, 125 P3d 57 (2005), we nevertheless reverse.

We begin with a brief overview of the record before turning to a more detailed examination. Father and mother were married in August 1986. J was born in 1988, and E was born in 1994. The family initially lived near Hood River, where mother’s family lives, but moved to the Beaverton area around 1998. Father had first moved to the United States as a young adult, and his family lives in Mexico. Mother was born in Mexico but has lived in the United States most of her life.

Mother alleged, and father denied, that he was abusive to mother and the children during the marriage. The parties separated in March 2004, after father and J had an altercation during which father hit J. Trial was held in November 2004. For most of the time between the separation and the trial, mother and J lived in Hood River with mother’s brother’s family, and father and E lived in the family home in Beaverton. E has special health and education needs and was making good progress in addressing those needs during that period.

Before trial, the parties agreed that mother would have custody of J and stipulated to the resolution of all issues except for the custody of E. The parties farther stipulated to a custody evaluation by Billie Bell, who ultimately recommended that father have custody of E. Despite that recommendation and E’s expressed preference to live with father, the trial court decided that mother should have custody of E, apparently based on the undisputed incident in which father struck J and on a desire not to separate E and J. Although the [94]*94parties offered conflicting testimony, the trial court made no credibility findings. The trial court also made no findings regarding E’s particular health and education needs, factors that are extremely significant to E’s best interests and welfare, or regarding E’s express desire to remain in father’s custody. Giving “primary consideration to the best interests and welfare of the child,” ORS 107.137(1), we reverse and remand.

Turning to a more detailed examination of the record, we begin with mother’s allegations that father abused her. Mother testified, and father denied, that he was verbally, physically, and sexually abusive to her. Mother described a handful of such incidents, but acknowledged that she had never called the police. Both boys frequently heard their parents arguing in Spanish, which they do not understand, but denied seeing any physical abuse, according to Bell, although J reportedly believed mother’s accounts that father verbally abused her. Although Bell, who has experience and training in dealing with domestic violence, acknowledged a possibility that more abuse had occurred than mother had reported, her assessment was that mother had not been hiding abuse and did not appear to be frightened of father. It is undisputed that father hit J on one occasion, and it appears that father and mother had loud verbal disagreements. However, having reviewed the entire record de novo, we do not find mother’s other allegations of abuse to be credible. To elaborate further on the details of the record and our analysis would not benefit the parties or serve any public interest. Jackson and Jackson, 147 Or App 500, 505, 936 P2d 1043 (1997).

Mother also testified that father drank excessively, and her brother Julio echoed that concern. Father acknowledged drinking 10 beers per week before the parties’ separation, but testified that he had dramatically reduced his drinking after the separation and that he had stopped drinking in the three months before trial and was attending programs supporting abstinence from alcohol. Bell received reports from several of father’s neighbors, coworkers, and friends, none of whom expressed concerns about his drinking. Although she had not been asked to perform an alcohol [95]*95assessment, Bell indicated that she did not see signs that father is an alcoholic and that she believed he was on his way to resolving any problem with alcohol.

In addition to receiving written reports from neighbors, coworkers, and friends of both parents, Bell conducted interviews of both parents and both boys. The boys reported hearing loud arguments between the parties in Spanish, and both reported that both parents looked angry, that neither looked angrier than the other, and that each occasionally backed down. Bell suspected that both parties had anger management problems: “By both kids’ report they would scream at each other in Spanish.” Consistently with that account, father acknowledged that he and mother yelled at each other during arguments but denied any verbal abuse.

J reported to Bell that mother had told him that father was verbally abusive. Mother denied talking to J about verbal abuse, claiming instead that J would ask her questions and that she would say only that she and father had had an argument. Mother acknowledged that her account was inconsistent with J’s account as described in Bell’s report and could not explain that inconsistency.

Bell opined that J is very close to and “bordering on * * * enmeshed” with mother. J told Bell that he was angry with father and felt that he needed to protect mother, although J also reported that father did not physically abuse mother. He indicated a number of grievances against father, including a desire that father should not “talk back” to mother when they argue and that he didn’t want father to “challenge” him. In Bell’s view, J “knows too much about what’s going on for a 16-year-old boy. He knows what dad is saying!;] he knows what mom wants. He talks to his brother about it. He’s here today outside [the courtroom].”

Mother also testified — and father denied — that father hit the boys regularly (though some of her testimony actually contradicts that allegation). Neither mother’s brother Julio nor his wife, Nancy, ever saw father hit the boys, although Julio opined that father spoke harshly to the boys to discipline them. In her custody evaluation report, Bell noted that the children denied mother’s allegations that they [96]*96were abused. Mother acknowledged that portion of the report, but could not explain why both children would falsely deny the abuse that she alleged.

It is undisputed that, in March 2004, eight months before trial, father struck J. Father had drunk two or three beers that evening. According to father’s testimony and J’s report to Bell, mother told the children that the parties were going to divorce because of father’s conduct, and father objected to her statements (according to father, to keep the children out of it; according to mother, to defend himself).

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Related

Matter of Marriage of Tuttle
660 P.2d 196 (Court of Appeals of Oregon, 1983)
McBrayer v. Randolph
83 P.3d 936 (Court of Appeals of Oregon, 2004)
In re the Marriage of Jackson
936 P.2d 1043 (Court of Appeals of Oregon, 1997)
In re the Marriage of Cooksey
125 P.3d 57 (Court of Appeals of Oregon, 2005)

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Bluebook (online)
159 P.3d 1183, 213 Or. App. 91, 2007 Ore. App. LEXIS 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-morales-orctapp-2007.