Matter of Marriage of Taraghi

977 P.2d 453, 159 Or. App. 480, 1999 Ore. App. LEXIS 514
CourtCourt of Appeals of Oregon
DecidedApril 14, 1999
DocketC94-3539DR; CA A93569
StatusPublished
Cited by5 cases

This text of 977 P.2d 453 (Matter of Marriage of Taraghi) 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
Matter of Marriage of Taraghi, 977 P.2d 453, 159 Or. App. 480, 1999 Ore. App. LEXIS 514 (Or. Ct. App. 1999).

Opinion

*482 DEITS, C. J.

Wife appeals from a dissolution judgment, challenging the trial court’s grant of custody of the parties’ children to husband with limited parenting time to wife, its distribution of certain assets and liabilities and the amount and duration of its spousal support award. We review de novo, ORS 107.405, ORS 19.415(3), and remand for modification of the judgment.

The parties were married in 1982, and they separated in September of 1994. Husband filed for a dissolution in October 1994. The trial was held in January 1996, and judgment was entered in May 1996. At the time of trial, wife was 39, and husband was 35. They have two children who were 10 and 8 at the time of trial. Husband has a college degree and has worked full time at Intel since 1991. Wife has a college degree and holds an Oregon real estate broker’s license. She has also worked as a legal secretary. Wife was diagnosed with a bipolar disorder in 1988, and she has been under the care of various health professionals since that time.

The trial court awarded sole custody of the children to husband and gave wife parenting time every other weekend, one week during Christmas break, spring break in alternating years, alternating major holidays, Mother’s Day and the children’s birthdays in alternate years. Wife’s parenting time totaled 68 days per year. Wife was awarded spousal support in the amount of $1,000 per month for 24 months beginning January 1996, then decreasing to $500 per month for an additional 36 months. The trial court ordered the parties to sell their real property and to divide the net proceeds equally between them. The judgment also provided that each party should be responsible for any debts or obligations incurred by that party since the time of the separation. The court used the “time rule” to divide Intel stock options held by husband. The court ordered that when the options are exercised, husband can deduct 45 percent of the proceeds for state and federal taxes, with adjustments for actual taxes due to be made within one week of filing the tax return.

Wife first assigns error to the trial court’s award of sole custody to husband with limited parenting time to her. *483 She argues that she should be awarded custody of the children. She contends that she has been the primary parent of the children and that she is fit to serve as the custodial parent. Wife asserts that the evidence shows that her medical problems are completely under control and that they have not been detrimental to the children in any way. Wife argues alternatively, that even if we determine that husband should retain custody, there is no justification for awarding wife such limited parenting time.

In deciding child custody cases, we give primary consideration to the best interests and welfare of the children. ORS 107.137(1). In determining the best interests of the children, this 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; and
“(e) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.” ORS 107.137(1).

While the trial court’s decision with regard to custody does not bind us, we do regard it as persuasive. Holcomb and Holcomb, 132 Or App 498, 502, 888 P2d 1046, rev den 321 Or 94 (1995). This is particularly true with respect to credibility determinations. Sleeper and Sleeper, 145 Or App 165, 173, 929 P2d 1028 (1996), rev allowed 325 Or 367 (1997). Nonetheless, ultimately it is our responsibility to “examine the evidence in the record and reach our own conclusions as to what is in the best interests of the child.” Holcomb, 132 Or App at *484 502 (quoting Sleight and Cazone, 100 Or App 328, 786 P2d 202 (1990)).

In assessing the first factor under the statute, the emotional ties of the children, it is appropriate to “consider evidence that one parent has been the primary caretaker or is the more nurturing parent.” Boldt and Boldt, 104 Or App 379, 382, 801 P2d 874 (1990). Wife contends that she has been the primary caretaker of the children throughout the marriage and that husband has devoted little time to parenting because of the demands of his job. Husband argues that wife “has only sporadically been able to serve” as primary caretaker, mostly due to her periodic mental problems, and that he has been devoted to his children and has placed a “higher priority upon them than upon his job * * The evidence in the record indicates that the truth is somewhere in between. Wife served as the primary caretaker of the children during a large portion of the marriage. However, husband has also assumed a significant parenting role when necessary because of wife’s problems and, over time, appears to have increased his involvement with the children. The evidence demonstrates that, from the time of their separation in 1994 until the dissolution judgment was entered in 1996, the parties shared custody equally.

The second factor that we consider in determining custody is the parties’ interest in and attitude toward the children. ORS 107.137(l)(b). The evidence at trial indicates that both parties love their children, are involved in their lives and have their best interest at heart, most of the time. The trial court noted that “[bjoth parents have at times in the past been excellent parents for their children.” The parties jointly retained a psychologist, Dr. Catherine Bolstad, to do a custody evaluation. Dr. Bolstad spent a significant amount of time assessing the parties and preparing her recommendation to the court. She met with each parent and each child individually, she observed the children interacting with each of their parents and she evaluated reports and statements from the parties’ doctors, family and friends. She commented on both parents’ interactions with the children. With regard to wife and the children she said:

*485 “I felt it was somewhat flat and there was a real lack of interaction.

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Related

In the Matter of Deming
246 P.3d 513 (Court of Appeals of Oregon, 2011)
In Re the Marriage of Deming
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14 P.3d 657 (Court of Appeals of Oregon, 2000)
In re the Marriage of Bidwell
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In re the Marriage of Kroker
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Bluebook (online)
977 P.2d 453, 159 Or. App. 480, 1999 Ore. App. LEXIS 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-marriage-of-taraghi-orctapp-1999.