ORS 107.093 provides that when a petition for marital annulment, separation or dissolution is filed and upon service of summons and petition upon the respondent, a restraining order is in effect against the parties.  Violation of the statute is punishable via contempt proceedings.

On April 14, 2010, the Oregon Court of Appeals filed an opinion in Frazier and Frazier. The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A137220.htm

The case dealt with how to address a party’s violation of the statutory asset restraining order.  After filing for divorce, wife completed a refinance of the marital home.  The refinance violated the statutory asset restraining order.  The trial court valued her withdrawal of equity as $60,000, based upon husband’s testimony.  The trial court decided that the full amount of her benefit from the refinance should be awarded to husband out of the division of assets as an equalizing judgment.

The court of appeals held that the actual benefit to wife was only $47,000, but the trial court’s ultimate determination as to what property division is just and proper in all circumstances is a matter of discretion that the court of appeals will not disturb unless the trial court misapplied the statutory and equitable considerations that ORS 107.105 requires.  The court of appeals held that husband should receive a benefit of $47,000 out of the division of sale proceeds from the house.

The order provides for certain exceptions.  It is important to consult a lawyer when initiating a divorce proceeding or being served with divorce paperwork with regard to how the asset restraining order affects you.  Failure to consult an attorney and properly abide by the order can have harmful effects.  Also, visit the following link for a prior post by Sean Stephens on this issue:  http://oregondivorceblog.wordpress.com/2007/05/15/to-sell-or-not-to-sell/

On April 14, 2010, the Oregon Court of Appeals filed an opinion in Stevens and Stevens.  The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A138624.htm

The appeal was filed by father due to a trial court ruling awarding sole custody to mother.  Father appealed based upon the fact that the custody evaluation was in his favor and that he had recently been the primary parent.  The court of appeals upheld the trial court ruling that mother should be awarded sole custody.  The court based its holding on a reliance on the trial court’s credibility findings, a review of the factors set forth in ORS 107.137, and the following:

“Here, the trial court concluded that most of the factors weighed fairly evenly between the parties, finding that both parents are fit and have close emotional ties with the children, that each parent has strengths and weaknesses, that each has “an exaggerated view” of the other’s interpersonal style, and that both parties had “unnecessarily exposed the children to issues in the divorce.”  The court found that, although father had been the primary parent for the past two years, mother had been the primary parent before that.  The court further found that father had “unreasonably interfered with [mother's] parenting time with these children” and that father’s interference “was one of the primary reasons” for awarding custody to mother.  The court explained that, although being most recently the primary parent weighed slightly in father’s favor, father had excluded mother from parenting, and mother was more willing and able to facilitate and encourage a close relationship between the children and father.”

Custody decisions are always very fact intestive, and, in cases such as these, can turn on a very small difference between the parents.  It is interesting in thie case that the custody evaluator did not testify and I wonder how much her actual testimony would have assisted father.  It is crucial for a parent to have a competent attorney who can produce the required evidence to provide the trial court with a basis for ruling in that parent’s favor.

The Oregon Court of Appeals filed an opinion in Stokes and Stokes on March 31, 2010.  The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A136795.htm  The case addressed the treatment of the following issues:  1.  Whether military benefits that are non-taxable can be included in gross income for child support calculation purposes;  2.  What the proper valuation date for a pension is; 3. The proper method to divide a pension interest; 4. Whether payment for other debts can be credited against support obligations.

Husband is in the military and receives BAH and BAS payments which are included in his monthly paychecks.  He argued that the court should not consider those benefits as income for child support purposes since they are non-taxable.  The court of appeals did not agree and held that pursuant to OAR 137-050-0340 which defines gross income as “income from any source including, but not limited to, salaries, wages, commissions, advances, bonuses, dividends, severance pay, pensions, interest, honoraria, trust income, annuities, return on capital, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, including lottery winnings, and alimony or separate maintenance received,” that the BAH and BAS payments were gross income.  It did not matter that those payments were non-taxable.

Husband, as a member of the military, is entitled to a military pensiion after 20 years of service.  At the time of the divorce he had not completed 20 years of service, but testified that he would complete said service.  Under Oregon law, the marital portion of husband’s pension must be calculated as a fraction of the entire actual pension, rather than as a fraction of a hypothetical pension amount.  The trial court had awarded wife a potion of the pension based upon a hypothetical retirement date prior to his full srevice.  The “time” rule is typically used to calculate the marital portion of benefits under a defined benefit retirement plan.  Under that rule, the marital portion is determined by multiplying the total actual pension benefit by a fraction, the numerator of which is the number of years (or months) of service during the marriage and the denominator of which is the total years (or months) of employment.  Wife’s interest in the pension should be based on the total pension benefit as of the date of retirement, determined either by way of an actuarial present value or through a division of benefits as they are distributed.

The court used the date of the parties’ separation to determine the marital portion of the pension.  The court of appeals held that the proper date is the date of dissolution, not the date of separation.

The court of appeals also held that in view of the fact that wife is entitled to a share of the marital portion of husband’s retirement benefits, and because those benefits would terminate if husband were to predecease her, it is appropriate that wife’s interest be protected by the provision of survivor benefits in an amount sufficient to cover wife’s share of the marital portion of the pension, with the parties to share equally in the cost of the annuity. 

The trial court ruled that husband satisfied his pretrial child and spousal support obligation via payment of the parties’ credit card debt.  Under Oregon law, a court cannot forgive a past-due support obligation.  Wife was awarded temporary spousal and child support in order to provide her with assistance in meeting her monthly expenses during the pendency of the proceeding as sset forth in ORS 107.095.  The trial court should not have credited husband’s obligation by his payment of credit card debt.

This case shows that a trial court can make myriad errors in its decisions.  In this case, the divorce was finalized by the trial court years prior to the court of appeals rendering its decision.  The issues in this case were complex.  In complex cases, the parties are frequently unable to reach a settlement due to their lawyers not being sure of a proper result.  Obviously, the alternative of throwing the issue into the hands of a trial court was not helpful in this case.  It is important to make sure that your lawyer has a firm grasp of the law and is able to property understand its application to the facts of your case and to the trial court.

The Oregon Court of Appeals published an opinion in Fields and Fields on March 24, 2010.  The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A141040.htm

The case dealt with the treatment of wife’s separately held company.  Wife was given the company by her parents prior to the marriage.  She kept the company in her sole name throughout the marriage.  Husband provided a significant amount of work for the company and the parties used the company’s income during the marriage.  The trial court ruled that husband was not entitled to a award to equalize the value of the company to wife. 

The court of appeals held the the trial court was mistaken and, that while wife had rebutted the presumption of equal contribution with regard to her initial acquisition of the property that she had not done so with respect to the company’s appreciation during the marriage.  ORS 107.105(1)(f) requires that the division of marital property be “just and proper” under the circumstances.   Marital assets are subject to a rebuttable presumption of equal contribution and ownership, which applies to property acquired by a spouse by gift during the marriage.   The appreciation in value of a separately held asset is a marital asset that is also subject to the rebuttable presumption of equal contribution.  A spouse rebuts the presumption of equal contribution with respect to the appreciation of a separately held asset if he or she proves that the other spouse did not contribute either directly or indirectly to its appreciation.  Here, wife could not rebut the presumption.

The court of appeals awarded husband one half of the appreciation of the company during the marriage.

The Oregon Court of Appeals filed an opinion in Quant and Carrier on March 17, 2010.  The entire opinion can be read here:  http://www.publications.ojd.state.or.us/A136186.htm

The case dealt with what the proper amount of maintenance spousal support should be pursuant to ORS 107.105.  Wife assigns error only to the trial court’s award of transitional spousal support, in the amount of $2,000 per month for two years, arguing that, because of her health problems and the disparity in the parties’ earning capacities, the trial court should also have awarded indefinite maintenance support. The trial court recognized the disparity in the parties’ earning capacities– that wife had no income and some fixed expenses, and that husband had significant income and the ability to assist wife with her expenses.  The court further found that it was highly unlikely that, even with retraining, wife would ever attain the earning capacity of husband.  The court found, however, that because the parties kept their finances largely separate, wife has had little benefit from husband’s earnings during the relationship and has not enjoyed during the marriage a standard of living that would be commensurate with that level of income.  The court found further that wife has the ability to supplement her income and that, given wife’s employment skills and talents, she could be self-sufficient.  The court found that wife’s employment possibilities would be only minimally impacted by her physical problems.  Because husband had been providing wife with some financial help, the court awarded wife transitional support of $2,000 per month for two years so that she could retrain as a medical coder.

The court of appeals, basing its decision on the fact that maintenance support is designed not to allow the dependent spouse to become financially independent and self-supporting, ruled that wife should be granted an award of maintenance support in the amount of $1,500 per month for a period of seven years.

Spousal support awards are very fact specific. It is important to clearly tie the facts of a person’s need for support to the reasons articulated in Oregon’s statutory framework.

With almost 80% of cases in domestic relations involving pro se (self represented) litigants, it is not uncommon for a party to fail to respond to a pleading and find themself defaulted.  The court of appeals in Nolan and Nolan, which was decided on March 3, 2010, ruled on what constitutes a proper “written response.”  The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A141393.htm

In the case, Mother appealed from the trial court ruling awarding Father sole legal custody of the parties’ children.  The court of appeals found that the trial court improperly granted Father’s motion for default against Mother and remanded the matter to the trial court for a full hearing on the merits.

At the trial court level, Father served Mother with a Motion and Order to Appear and Show Cause why custody should not be modified.  Under the Douglas County local rules, Mother was required to file a “written response.”  Mother filed a motion to have the court decline jurisdiction, but did not file a counter-affidavit contesting Father’s allegations.  The trial court issued a default order against Mother.

The court of appeals held that the trial court’s ruling was incorrect.  The order of default should have been set aside since Mother did file a “written response.”

It is very important, both as a petitioner and a respondent to seek at least a consultation with an attorney if you are representing yourself.  On the petitioner side, you need to make sure that you understand the rules with respect to obtaining a default order.  On the respondent side, you need to make sure that you understand the county’s local rules.

The Court of Appeals decided the case of Bolte and Bolte on February 17, 2010.  The case is an appeal from a divorce trial.  The Court of Appeals modified the spousal support award made by the trial court.

Husband and Wife were married for 22 years, and separated a few years prior to trial.  Wife gave up employment opportunities of her own to further Husband’s career.  The parties had a household income of $14,000 per month, consisting of Husband’s income of $10,700 and Wife’s income of $3,300. 

Husband argued that his income should be only $7,900 per month because the remainder was from a position that he termed temporary.  Husband also argued that Wife’s income should be presumed to be higher because she was underemployed.

Trial court awarded indefinite support in the amount of $1,500 per month. 

The Court of Appeals held that Wife was not underemployed as she was already working full time and is not, for spousal support purposes, required to work at the highest possible salary.  The amount of spousal support must be “just and equitable” under the totality of the circumstances.  Specifically, ORS 107.105(1)(d)(C) provides a nonexclusive list of factors that we consider in establishing a just and equitable support award for spousal maintenance support, which include (1) the duration of the marriage; (2) the standard of living established during the marriage; and (3) the parties’ age, income and earning capacities, training and employment skills, work experience, and financial needs and resources.  The Court of Appeals modified the support award up to $2,500 per month indefinitiely because “without a substantial award of spousal support, wife’s standard of living following the dissolution will be significantly diminished when compared to the parties’ predissolution lifestyle, which was based on a monthly household income of approximately $14,000.”

The opinion can be found here:  http://www.publications.ojd.state.or.us/A139055.htm

On December 23, 2009, the Oregon Court of Appeals filed its decision in Baker and Andrews, a dissolution of domestic partnership case.  The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A135564.htm.

                Baker and Andrews were an opposite sex couple who lived together for many years.  Baker appealed the trial court’s order that no domestic partnership existed and from an order of the court awarding Andrews sanctions against both Baker and her attorney.  The court of appeals agreed with the trial court with respect to its ruling that no domestic partnership existed, but reversed the trial court with respect to its ruling on sanctions.

                They lived together for 24 years, and shared a home and bed and raised their own separate children to adulthood in the home during that time.  They maintained separate bank accounts. Baker did some work outside of the home and Andrews owned a business (that Baker did some work for without pay).  Baker also worked as a homemaker.   They had no agreement as to their financial relationship.  Andrews added Baker to the title on the house in 1994, but Baker then signed a quitclaim deed releasing her interest in the home in 2004.  She also filed for SSI disability, stating in her application that she did not expect anything from the home and that she lives financially separately from Andrews.

                The trial court did not find Baker to be credible, a finding upon which the court of appeals must rely. 

                Oregon does not recognize common law marriage.  Under the court’s decision in Beal and Beal and subsequent cases, however, Oregon has a body of case law that recognizes that where parties intend to create a domestic partnership that the court can then equitably divide their property and debts.  The court of appeals describes this as follows:  “In general, an equitable property division on dissolution of domestic partnership is appropriate where the parties’ intent to share assets and expenses is shown by evidence that they have jointly purchased, built, or maintained property, held joint accounts, and made substantial economic and noneconomic contributions to the household for mutual benefit.” There cannot be an award of spousal support, nor can there be a claim for attorney fees made in such a proceeding.

                Here the court of appeals found that there was insufficient evidence of financial commingling sufficient to support Baker’s claim of the existence of a domestic partnership.

                Even though a party has no entitlement to attorney fees in this form of proceeding, if the other party files a frivolous case then the offended party can seek sanctions under Oregon Rule of Civil Procedure 17.   The court of appeals did not reach the issue of whether the filing was in fact frivolous, because it decided that the trial court’s manner of assessing sanctions was legally improper.  The matter was remanded to the trial court to decide if sanctions were warranted under ORCP 17.

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 August 5, 2009, the Court of Appeals ruled in the case of Morales and Morales, in which the court modifies the trial court’s ruling with respect to spousal support based upon the wife’s appeal.

Husband and Wife married when he was 22 and she was 17.  Their marriage lasted for over 35 years.  Wife raised the parties’ children, never working outside the home, while Husband served in the army.  Husband retired from the army in 1992, after 20 years of service, for medical reasons. 

Wife was awarded $2,000 per month in support at a temporary hearing, in order to cover joint family expenses along with her own individual expenses.  At the hearing, the trial court imputed minimum wage income to wife and advised her to obtain a job.

At the time of trial, husband’s income totaled approximately $5,200 after subtracting taxes and payment for his child’s health insurance.  His income included $3,210 in nontaxable disability payments.  Wife had attempted to find a job, but was still unemployed.  The trial court awarded wife spousal support in the amount of $1,000 per month for one year, $800 per month for two years, and then $500 per month indefinitely.  The court imputed minimum wage income to wife and made a ruling that the nontaxable disability income for husband could not be divided by the court.

On appeal, wife argues that the award of $500 per month is inequitable and husband counters that the award is appropriate based upon husband’s non-disability income. 

The court of appeals explains that husband’s nontaxable disability income is in to be considered income for support purposes, regardless of whether it can be divided as part of a property distribution.  Oregon law defines “income” for purposes of support payments, as, among other things, “any program or contract to provide substitute wages during times of unemployment or disability.”  ORS 25.010(7)(f); see also OAR 137-050-0340 (for purposes of support, “gross income includes income from any source including, but not limited to * * * disability insurance benefits” (emphasis added)).  In addition, the court held that federal law does not restrict the court’s ability to consider the disability payments as income. 

The court of appeals then goes on to consider what amount of support is “just and equitable.”  Based on the length of the parties marriage, the parties’ respective situations, and the parties’ respective incomes or ability to obtain employment, the court of appeals held that wife should be awarded an amount of $1,400 per month indefinitely. 

The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A134242.htm
The lawyers at Stephens Margolin P.C. can assist you with your family law appellate questions. If you have any questions about Oregon appellate law please contact Daniel Margolin, who focuses part of his practice on family law appeals, or C. Sean Stephens at Stephens Margolin P.C.

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 April 15, 2009, the Court of Appeals ruled in the case of McLauchlan and McLauchlan.

Husband appealed from the trial court’s ruling in his divorce with regard to the division of property and the award of spousal support to his ex-wife.

As part of the division of assets, the court awarded the “Butte Falls” property to wife provided that she could come up with a plan to refinance the property in order to pay to husband his equalizing judgment. On appeal, husband argued that the trial court did not have the authority to incorporate wife’s refinance plan into the divorce judgment, and that the trial court should have ordered the property sold rather than awarding it to wife. At issue was husband’s claim that wife, and thus the trial court, undervalued the property at trial. The court of appeals held that husband did not property preserve the error at the trial court level because he did not argue that the court lacked authority to do what it did and further that husband had the opportunity to present evidence regarding the value of Butte Falls but did not.

With regard to spousal support, the trial court ordered that husband pay spousal support to wife and reduced the amount of support to a “lump sum present value.” Husband disagreed witht both the amount and the reduction to a present value. Despite the fact that wife agreed with husband that it was error for the trial court to provide for a lump sum present value for spousal support, the court of appeals held that the parties misunderstand the law and that the trial court acted properly.

ORS 107.105 provides that a divorce judgment may provide for spousal support both “in gross or in installments or both.” The trial court awarded wife $1,000 per month for a period of five years and also provided that as part of the refinance of Butte Falls, she can deduct $54,000 (which the court deemed as the present value of the spousal support award). The court of appeals held that it was proper for the trial court to provide for alternative awards, both of which are proper under the terms of the statute.

The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A134002.htm

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