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CASE CITATION

OF SUPPORT COMMENTS

Prepared by: Thomas A. Bittner, OSB #901785 and William F. Schulte, OSB #661077 Schulte, Anderson, Downes, Aronson & Bittner, P.C.

Waid and Waid

$250 indefinite at trial.

Affirmed.

Trial court properly applied statutory factors, but Wife had not taken Social Security and court said her retirement will be a change of circumstances to

allow modification. to Social Security.

Unable to go to transitional; then $1,000 x

24 months Court of Appeals Remanded to consider

maintenance support

Cannot order transitional where no plan for school or training. Record

mandated consideration of maintenance support. Wife wanted

indefinite. - Began solo practice

after being atty for 10 years - Five years before

trial, income averaged $8,700 per month and was down

- Married while in potential. – Sought

Trial Court - Found that Husband had

capacity to earn $8,000 per month - Child support of $1,162

and $220 cash medical - $2,500 transitional x 34

months

- Compensatory of $1,000 x 10 years Court of Appeals

Remanded

- As to compensatory, it was appropriate to award that since Wife made substantial contribution that was

meaningful.

- Amounts of support inappropriate because no evidence of income. Must

have evidence of present ability to earn.

- Evidence of income was speculative and reliance alone on history is

insufficient.

CASE CITATION

OF SUPPORT COMMENTS

Prepared by: Thomas A. Bittner, OSB #901785 and William F. Schulte, OSB #661077 Schulte, Anderson, Downes, Aronson & Bittner, P.C.

to $2,300 per month

Remanded to consider maintenance because transitional only appropriate if

getting training or education.

Cortese and Cortese 260 Or App 291 (2013) (Ortega)

16 years - College graduate - Owned business - $12,000 per month but that ceased three months after Wife

filed - On unemployment

at trial - Business continued to pay insurance, cell phone, credit card, maintenance for 7 years

Case differs from Anderson (low income lawyer case) because Husband

did not put on evidence of unavailability of jobs or constrained economic circumstances. Court could

use income history. In addition, Husband here manipulated his income

trying to avoid support and had his parents sue for debts and personal

property.

CASE CITATION

LENGTH OF MARRIAGE

HUSBAND'S AGE/INCOME

WIFE'S AGE/INCOME

AMOUNT/DURATION

OF SUPPORT COMMENTS

Prepared by: Thomas A. Bittner, OSB #901785 and William F. Schulte, OSB #661077 Schulte, Anderson, Downes, Aronson & Bittner, P.C.

and personal expenses - Trial court imputed

potential income of

$8,000 per month

1 Sanctions for Discovery and Attorney Fees

Uhde and Uhde

260 Or App 284 (2013)

(Ortega and Sercombe, Hadlock) Facts

Wife appealed the supplemental judgment terminating Husband’s spousal support obligation to Wife, setting Wife’s child support obligation to Husband, and awarding Husband attorney fees.

In the underlying proceedings, Husband obtained an order to compel discovery of Wife’s financial records. Wife failed to comply and Husband sought a sanction under ORCP 46B to strike her motion seeking spousal support. The court held a prima facie hearing and did not allow Wife to participate, as the court had entered an order of default against her. At that hearing the court set Wife’s child support obligation, eliminated Husband’s spousal support obligation, and awarded him attorney fees of approximately $25,000.

Decision

On appeal, Wife assigned as error that there was a lack of an evidentiary basis for concluding that she failed to provide the requested discovery. The court reviewed the records and found that the trial court had evidence in the record to support its factual finding that Wife had failed to comply with the discovery order.

The court concluded that the sanction imposed -- striking her pleadings and holding her in default -- was within the sound discretion of the trial court.

Regarding the court’s attorney fee award, Wife claimed that Husband did not follow ORCP 68 by serving a petition for attorney fees upon her and allowing her an opportunity to file objections. The Court of Appeals held that because Wife was in default, Husband was not required to serve a petition for his fees upon her.

The judgment of trial court was affirmed.

2 Termination of Spousal Support Upon Remarriage

Tilson and Tilson 260 Or App 427 (2013)

(Lagesen and Schuman, Duncan)

The issue in this case is whether Wife’s remarriage, approximately five months after the dissolution of her marriage to Husband, resulted in a substantial change in economic

circumstances sufficient to permit the trial court to reconsider its spousal support award to Wife, and if so, whether the trial court abused its discretion when it continued Husband’s $1,000 monthly maintenance support obligation after terminating Husband’s $500 monthly transitional support obligation.

Facts

At the time of dissolution Husband earned $5,400 per month as a Tri Met light rail operator. Wife earned $726 per month as a self-employed nail technician. In the underlying divorce case the trial court ordered indefinite support as follows: $2,000 for three months;

$1,500 per month for two years; and $1,000 per month maintenance support for an indefinite period.

Approximately five months after the divorce Wife remarried. Upon learning of Wife’s remarriage (she had been cohabiting with her new spouse at the time of divorce, but neither party anticipated that she would remarry) Husband filed to terminate support. At the modification hearing, the court found that Husband was earning $400 per month less than he had been at the time of dissolution because of a reduction in his shift length. Wife had become employed as a cashier and was earning approximately $1,668 per month. Her new spouse was earning approximately $3,800 per month. Wife acknowledged at the modification hearing that she no longer needed the $500 per month transitional support that was to run for another 17 months, but that she felt she still needed the $1,000 per month indefinite maintenance support.

Trial Court Decision

The trial court found that Wife’s remarriage resulted in a substantial and unanticipated change in her economic circumstances for the purposes of ORS 107.135. The court agreed with Wife’s contention that she no longer needed transitional support, but that her change was not so substantial as to warrant a modification of the maintenance support.

3 Court of Appeals Decision

On appeal, the court found that Wife’s remarriage was an unanticipated change in her circumstances. It then addressed the question of the extent to which Wife’s new husband’s income was available to the new marital household. The appellate court rejected Wife’s contention that her new husband’s income was not available to her, even though the parties maintained separate finances. The Court of Appeals relied upon new husband’s testimony that it was his intent to take care of his new wife the rest of his life, and Wife’s admission that it would be fair to eliminate the $500 per month transitional support award. Those facts provided an inference that some portion of her new husband’s income was available to Wife.

The next question is whether the trial court acted within its discretion by eliminating the

$500 per month monthly transitional support while maintaining the $1,000 monthly maintenance support. The key inquiry in remarriage cases is the extent to which the remarriage satisfies the purposes behind the original award.

The trial court permissibly concluded that most of the original purpose behind the

original maintenance award was not satisfied by her remarriage. The dissolution judgment stated that the purposes of the award were to support Wife because of the length of the marriage,

because she had sacrificed her own career to advance Husband’s career, and to care for Husband’s son, the difference in the parties’ incomes and because Wife did not have the same benefits from employment that Husband did. Wife’s remarriage did not satisfy most of those purposes.

Furthermore, the dissolution judgment stated that Husband could seek to modify spousal support if Wife consistently earned $3,600 per month with full benefits. The Court of Appeals saw that as an indication that one of the primary purposes of the support award was to assist Wife until she was earning $3,600 per month, with full benefits. Wife’s remarriage did not cause her income to reach that level even assuming that some portion of her new husband’s income was available to her.

Affirmed.

4 Spousal Support Modification/Life Insurance

McKinnon and McKinnon 256 Or App 184 (2013)

(Schuman and Wollheim, Hadlock)

Wife appealed a supplemental judgment modifying her spousal support and relieving Husband of the obligation to submit to a physical examination for life insurance under ORS 107.820(3).

Facts

At the time of dissolution the parties had been married 29 years. At the time of trial Husband was 56 years old and disabled. Wife was 49 years old and generally in good health.

The parties settled their underlying divorce and the judgment indicated Husband’s total monthly income was $4,110 comprised of veterans’ disability benefits and Social Security disability.

Wife’s monthly income was $1,325 from self-employment, as well as rental income of $450 per month. Wife was awarded $900 per month indefinite spousal support. The underlying judgment further provided that Wife had an insurable interest in Husband’s life and that under ORS

107.810, Husband was required to fully and promptly cooperate with any requests made by Wife in her effort to purchase life insurance on Husband’s life.

Five years after divorce, Husband filed a motion to terminate or reduce spousal support contending there had been a substantial change in circumstances. He claimed Wife’s income had increased since the time of divorce. The trial court agreed with Husband finding that her income had almost doubled since the time of the divorce. Accordingly, the trial court reduced her support to $500 per month and ordered that Husband was not required to submit to a physical examination for the purposes of allowing Wife to obtain insurance.

Wife appealed and argued that the trial court erred in reducing her spousal support, claiming that her income was essentially the same that it was at the time of the divorce. The court concluded that Wife’s income had increased by approximately $277 per month from the time of the dissolution. Note that Husband’s income had also increased by approximately $600 per month due to cost of living adjustments to his disability income.

The court held that Wife’s slight increase in income does not constitute a substantial change in circumstances. Accordingly, the trial court’s order was reversed.

5 The Court of Appeals agreed that it was error to relieve Husband of his obligation to submit to a physical examination, holding that ORS 107.820(3) does not give the trial court authority to relieve Husband of the duty to submit to a physical examination.

6 Spousal Support Modification

Dow and Dow

256 Or App 454 (2013)

(Hadlock and Ortega, Sercombe)

Wife appealed the supplemental judgment modifying the terms of her 2004 stipulated judgment of dissolution of marriage. She challenges the trial court’s modification of his spousal support award and the court’s decision to award Husband a share of her Oregon Savings Growth Plan. The Court of Appeals only addressed the spousal support modification issue.

Facts

This was a 20+ year marriage. Husband was a physician and Wife was a CPA. At the time of divorce Husband was earning $12,000 per month and Wife $6,868. The parties’

stipulated divorce judgment provided that Husband would pay maintenance spousal support as well as compensatory spousal support. The amounts for each were not individually segregated.

Rather, Wife was awarded $1,000 per month beginning October 2004 until she reached the age of 67. The parties’ dissolution judgment also contained an unusual provision that they referred to as the “overage provision.” This provision provided that if Husband’s income exceeded

$160,000 in any given year, then in the following year 50% of the amount earned in excess of

$160,000 would be paid to Wife in spousal support. Similarly, in the event that Wife were to exceed $120,000 per year, 50% of the net amount earned in excess of $120,000 would be deducted from Husband’s support.

In 2004, the parties’ divorce judgment also provided that they were to place the marital home for sale in the fall of 2007. Wife was allowed to retain possession of the home until it sold.

Apparently the home did not have a mortgage and she did not have to pay rent to Husband.

What happened next was a confusing series of motions and counter motions to increase support, reduce support, or terminate support, as well as a motion for the division of a missed asset at the time of the divorce. After five days of trial, the trial court made the following findings:

A. Husband was now earning approximately $220,000 per year;

B. Wife was self-employed and had lost her steady source of income from employment.

It appeared that she was making approximately $2,300 per month before expenses, but that her monthly business expenses reduced her income to approximately $130 per month. She was receiving unemployment benefits;

C. Wife did not cooperate in good faith to cause the house to be sold, but instead lived rent and mortgage free while she was receiving support from Husband, including years in which she earned virtually the same amount as Husband;

7 D. Husband was forced to spend retirement accounts because his equity was tied up on

the house that had not been sold;

E. Wife had diverted income into the hidden OSGP account;

F. Had Wife been honest, Husband would have been entitled to move for a reduction or termination of support several years earlier;

The trial court divided Wife’s OSGP equally. The court eliminated the overage

provision. The court found that Wife had established a substantial and unanticipated change in circumstances. Accordingly, the trial court decided to order the house sold, divide the OSGP account, and ordered Husband to continue paying $1,000 per month until Wife reached age 67 (she was age 62 at the time of the hearing).

Wife appealed, making several contentions:

1. Eliminating the overage provision violated ORS 107.104(1)(b);

2. Husband had failed to prove a substantial change in circumstances to eliminate the compensatory support (overage provision); and

3. Husband failed to state a claim for relief when he alleged support should be terminated because of Wife providing misleading information.

The Court of Appeals addressed each assignment.

First, Wife argued that the overage provision in the 2004 stipulated judgment did not violate the law or contravene public policy that the trial court lacked authority to eliminate that portion of the support obligation. The Court of Appeals rejected that argument, noting that under ORS 107.135 there is no limitation on the court’s authority to modify stipulated dissolution judgments. Furthermore, there is nothing in ORS 107.104 limiting a party’s ability to file a motion to set aside, alter, or modify a judgment under ORS 107.135.

Wife’s second and third arguments relate to the adequacy of Husband’s pleadings and the trial court’s authority to modify spousal support provisions. Wife contends that Husband failed to prove a substantial change in circumstances. Husband answered that Wife was the one who originally filed the motion to modify support and that she alleged a substantial change in

circumstances. The court noted that even though Husband had filed a cross motion to modify his support, a finding that there was a substantial change in circumstances permits the court to address support regardless of who alleged it or who proved it.

Wife next complained that Husband’s pleadings did not state a claim. Husband had alleged that his support obligation should be terminated based on misleading information that Wife had provided following the divorce. The court noted that Husband’s answer to Wife’s

8 motion to modify support with a request that the court eliminate the overage portion. So even if Husband’s cross-motion was inadequate, his answer to Wife’s motion supported the claim.

Mostly, the court found that once there was a change in circumstances, the trial court had broad powers to do what is just and equitable under the totality of the circumstances.

Wife’s last argument that the trial court’s elimination of the overage provision was based on a punishment to her for failing to disclose the OSGP. The court reviewed the entirety of the trial court’s decision and concluded that its decision was just and equitable and not intended to punish Wife.

Trial court decision affirmed.

9 Parenting Time – Findings Sufficient to Deny All Parenting Time

Stewart and Stewart 256 OR App 694 (2013) Per curiam

Facts

This was a dissolution case where the mother was in prison serving a lengthy sentence at the time of trial. The court denied the mother all parenting time based on a finding that the mother is serving a Measure 11 prison sentence and will be incarcerated for the next 14 years.

Both parties were probably self-represented at trial because the court used a form judgment which included a finding to the effect that wife would have no parenting time because “this would endanger the health and safety of the children.” The court crossed out that phrase and inserted its own language regarding the Measure 11 prison sentence.

Mother appealed and the Court of Appeals reversed. ORS 107.105(1)(b) states that the court may deny parenting time to the non-custodial parent “only if the court finds that parenting time would endanger the health or safety of the child.” The Court of Appeals also pointed out that the mere fact of a parent’s incarceration does not invariably require that parenting time be denied.

10 Child Support Arrears – Interest on Accrued Interest?

Chase and Chase

354 Or ____ (February 13, 2014) (Brewer)

This unanimous decision from the Supreme Court addresses whether a judgment that establishes child support arrears and accrued interest itself bears interest. In other words, does the accrued interest become part of the principle of the arrears judgment, so that it then accrues statutory interest at 9%, or does the accrued interest component of the arrears judgment not become part of the principle?

The Supreme Court held that the portion of a judgment for child support arrears that represents the interest that had accrued on the unpaid installments does not itself bear interest.

This decision specifically overrules the Court of Appeals decision in Mannix and Mannix, 146 Or App 36 (1997). In Mannix, the Court of Appeals had decided that in a child support arrears context, the principle of the arrears judgment included both the unpaid child support

installments, plus the interest that accrued on those unpaid installments, and that total sum became the principle amount of the arrears judgment, and that entire amount would accrue interest going forward. The Supreme Court, in a lengthy and detailed statutory construction analysis, overruled Mannix, and held that interest that accrues on unpaid child support

installments is simple interest, and that in an arrears proceeding, that accumulated simple interest does not itself bear interest.

11 Family Abuse Prevention Act (FAPA) Case/Stalking Protective Order (SPO)

N.R.J. vs. P.K.

256 Or App 514 (2013)

(Armstrong and Nakamoto, Egan) Facts

Petitioner obtained a FAPA and at the hearing on the FAPA, the trial court found that she did not meet her burden of proof and dismissed the FAPA. However, the trial court then, on its own motion, entered a permanent stalking protective order (SPO) against Respondent, under a new case number. Petitioner had not requested the SPO, and the Respondent had no opportunity

Petitioner obtained a FAPA and at the hearing on the FAPA, the trial court found that she did not meet her burden of proof and dismissed the FAPA. However, the trial court then, on its own motion, entered a permanent stalking protective order (SPO) against Respondent, under a new case number. Petitioner had not requested the SPO, and the Respondent had no opportunity

In document TESIS DOCTORAL (página 44-0)