New Case Law – Substantial Change of Circumstances Since the Last Custody Order

Posted on March 30, 2012 by Meg Clark-Kilcoyne

On March 28, 2012, the Oregon Court of Appeals decided Sconce and Sweet. In this case, the trial court granted the father’s 2010 motion for a change in custody, granting him sole custody of the parties’ child. The trial court found that there had been a substantial change in circumstances since the parties’ general judgment entered in 2001, which granted sole custody to the mother. The Court of Appeals, however, stated that whether or not there had been a substantial change of circumstances should be measured from the “last custody order,” or “most recent” custody order. In this case, there had been a 2004 supplemental judgment denying the father’s request for sole custody. The Court of Appeals stated that the last or most recent custody order is not limited to an order which modifies custody, but rather means any order relating to custody, including orders denying a change in custody. The court further stated that to look back further than the most recent order related to custody – whether that order modified custody or not – would undermine the preclusive effect of that order. The Court of Appeals found that there was no substantial change of circumstances since the 2004 judgment and reversed the trial court’s award of custody to the father.

The entire opinion can be found here.

Posted in Child Custody, Modification, News | 1 Comment

New Case Law – Modifications of Spousal Support

Posted on March 29, 2012 by Meg Clark-Kilcoyne

On March 28, 2012, the Oregon Court of Appeals decided Spillane and Spillane. In this case, the trial court had terminated the husband’s obligation to pay spousal support based on his declining health, and the wife appealed that decision. The court of appeals considered the evidence related to the husband’s declining health and determined that there was not a current change in circumstances related to the husband’s ability to pay, since his health problems had not yet prevented him from working full time, although he anticipated that they may do so at some point in the future. The court further found that both the husband’s COPD and hearing loss predated the parties’ divorce and that although they may have gotten worse since then, that was anticipated by the court at the time of the divorce and the court ordered indefinite spousal support in spite of it. The court also found that the husband had not proved a substantial decline in his income, and that he was enjoying a standard of living similar to that enjoyed during the marriage. The court stated that the husband had not met his burden of proof and reversed the trial court’s decision.

The entire opinion can be found here.

Posted in Modification, News, Spousal Support | 1 Comment

New Case Law – Importance of the “Primary Caregiver” in Custody Determinations

Posted on March 29, 2012 by Meg Clark-Kilcoyne

On March 14, 2012, the Oregon Court of Appeals decided Nice v. Townley. In this case, the trial court awarded custody of the parties’ young son to the father. The trial court weighed a number of factors under ORS 107.137 to determine whether custody should be awarded to the mother or the father, and found that most factors weighed equally in both parties’ favor. However, it found that the mother’s unwillingness to foster a strong relationship between the child and the father weighed against awarding her sole custody. The mother appealed, based on her history of being the child’s primary caregiver.

To determine who is the primary caregiver, the court looks at who has met the child’s basic needs, including feeding the child, caring for the child when he is sick, taking the child to the doctor, disciplining the child, and many other types of interactions. The court of appeals found that the trial court had not properly considered the evidence showing that the mother had been the child’s primary caregiver for the majority of his life, and remanded the case to the trial court for a new custody determination.

The entire opinion can be found here.

Posted in Child Custody, News | 1 Comment

New Case Law – “Just and Proper” Division of Separate Assets

Posted on March 22, 2012 by Meg Clark-Kilcoyne

On March 14, 2012, the Oregon Court of Appeals decided Wolfe and Wolfe. In this case, the wife appealed the trial court’s assignment of certain investment accounts to the husband as his separate property. The wife also appealed the duration and amount of spousal support awarded by the trial court, but the Court of Appeals affirmed the trial court’s award after modifying the distribution of property.

The parties accumulated significant property and investments during the marriage. The husband also owned two investment accounts and an interest in a trust. The trial court awarded these assets to the husband as his separate property. The Court of Appeals, however, found that although the husband had rebutted the presumption of equal contribution as to those assets, the fact that he had used those assets to pay for family expenses, that he intended those assets to benefit the family long term, and that he and the wife had relied on those assets in their joint financial planning, made it just and proper to award the wife a portion of those assets. The court awarded the wife an additional $2 million of the husband’s $10 million in separate assets.

The entire opinion can be found here.

Posted in Divorce, News, Property Division | 1 Comment

New Case Law – Attorney Fee Awards in Family Law Cases

Posted on March 21, 2012 by Meg Clark-Kilcoyne

On January 25, 2012, the Oregon Court of Appeals decided Berry and Huffman. In this case, the former husband tried to modify his obligation to make payments under a stipulated judgment, and the former wife wished to enforce the terms of that judgment. The trial court awarded the wife her attorney fees incurred enforcing the judgment, justifying the award based on ORS 107.135(15) and ORS 107.135(8). The Court of Appeals stated that these statutes were not appropriate to support an award of attorney fees in this case. The court went on to state that ORS 107.135(8) may sometimes justify an award of attorney fees where the prevailing party was enforcing a judgment under 107.104 in the context of a modification under 107.135, “if the enforcement efforts are reasonably and materially related to the resolution of the modification dispute.” The court required a nexus between the enforcement issues and the modification issues which it did not find in this case. The court also found that ORS 107.105(1)(j), which allows attorney fees in judgments of dissolution, did not provide a basis for awarding attorney fees in an enforcement action.

The entire opinion can be found here.

Posted in Attorney Fees, Divorce, News | 1 Comment