As a Portland Oregon divorce law firm, Stephens Margolin P.C. is dedicated to keeping up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On February 18, 2009, the Oregon Court of Appeals published an opinion in Talik and Talik. The case is an appeal from a divorce judgment. Husband objected to the trial court ruling on three issues: 1. That the court erred in calculating child support; 2. That the court erred in not awarding him compensatory spousal support; and 3. That the court erred in limiting his parenting time.

The parties were married for 16 years. During the marriage, Husband worked for a period of time while Wife attended medical school. The parties moved around in order to meet Wife’s needs. The parties had three children.

With regard to the limitations on Husband’s parenting time, the court of appeals agreed with the trial court. There was evidence at trial that husband hit and kicked two of the children. The trial court found that Husband’s behavior negatively affected the children. In addition, a custody evaluator made recommendations regarding parenting time that the court agreed with. Husband provided no compelling argument to the court of appeals to deviate from the court’s decision.

With regard to Husband’s argument that he should have been awarded compensatory child support, the court of appeals disagreed with Husband and agreed with the trial court. The court explained that compensatory spousal support is available where the party requesting the support shows that they made a “significant financial or other contribution” to the factors set forth in ORS 107.105(1)(d)(B)(i) to (vi). The significant contribution is not limited to enhancing the earning capacity of the other party because that is only one of the “areas to which a spouse may contribute in order to meet the threshold requirement for compensatory spousal support.” A contribution to the education, training, or career of the other party is sufficient. If a party meets the initial threshold, then the court must determine whether a compensatory spousal support award is “otherwise just and equitable in all of the circumstances.” Here, the court of appeals found that while Husband had met the threshold requirement of a significant contribution that such and award would not be just and equitable in the circumstances of this case.

With regard to Husband’s claim that the court erred in calculating child support, the court of appeals disagreed. The trial court had the opportunity to hear witnesses and obtain a clear understanding of the parties’ finances.

The entire opinion can be found at http://www.publications.ojd.state.or.us/A134376.htm

The case teaches us that trial court factual findings are key in any appellate case. While the court of appeals does review these cases de novo, it relies on the court’s factual findings.

The lawyers, including Daniel Margolin, who focuses part of his pratice on family law appeals, at Stephens Margolin P.C. can assist parties going through a divorce or appeal from a divorce judgment. As this case shows, it is crucial to have a competent attorney at the trial court level. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

As a divorce lawyer, I am constantly discussing child custody issues with clients.  One of the first questions that I often receive is “what does joint custody mean and how can I get it?”  ORS 107.169 is the Oregon statute that defines joint custody.  “[J]oint custody” means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child’s residence, education, health care and religious training.”  Basically, the idea is that the parents will work together to make all decisions regarding the child even though they are divorced or are having a court decision made regarding their child.

A court cannot order joint custody.  The parties have to agree to it.  The legislature figures that if people have to have a court make a decision regarding the children then they will not be able to work together regarding their child. 

The parties have the right to define the scope of joint custody.  Under the statute, “An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions.”  This means that if a parent has a strong concern about the other parent’s ability to make a decision for the child regarding a specific issue (i.e. a difference of opinion regarding private vs. public school) then the parties can agree to have only one parent have decision making on that issue. 

Joint custody has no effect on parenting time or child support.  An agreement to share custody does, however, usually lead to the parties being able to reach a settlement regarding the other issues as well.

Joint custody is subject to modification by either parent.  The statute provides:  “Modification of a joint custody order shall require showing of changed circumstances and a showing that the modification is in the best interests of the child such as would support modification of a sole custody order. Inability or unwillingness to continue to cooperate shall constitute a change of circumstances sufficient to modify a joint custody order.”  The parties must clearly demonstrate these requirements to the court. In a recent trial of mine where I represented the children, both parties asked for a modification from joint to sole custody.  The court refused to grant the modification because neither party actually testified to any difficulty in making decisions jointly.

At the end of the day, joint custody is an important emotional decision.  It is important for children to have a united parental front even if the parents are not together.  It is important for both parents to believe that they have input into their child’s life.  

Before making a decision regarding custody, I suggest that a parent have a consultation with an attorney to fully understand the issues at play.