The Oregon Divorce Blog was quoted in a Maryland article regarding the issue of custody of a pet in a divorce dispute.  You can read the full article here:   http://www.katu.com/news/national/99729719.html

Daniel Margolin was quoted in an Oregonian article concerning the Harmon divorce today. The article can be read here:

http://www.oregonlive.com/portland/index.ssf/2010/07/kaine_horman_asks_court_to_hav.html

CNN ran an interesting article captioned “Divorce attorneys catching cheaters on Facebook.” An example given of social media in the courtroom was a lawyer using Facebook data to attack a parent’s credibility as a witness. The parent claimed he didn’t drink alcohol, but his Facebook account showed recent photos of him drinking beer.  Not good, because credibility is everything in court.

In our Oregon divorce and family law practice, we see social media come up in cases with increasing frequency. People freely post personal information online that they might be reluctant to give up as part of a deposition. One case involved an online dating site where a party had posted income information, and was then dismayed to see it at the child support hearing. Our suggestion is make sure your privacy settings are such that you aren’t giving away information that you wouldn’t want to freely disclose in your court case. Better yet, don’t disclose personal information that could affect your case, because the records could be obtained by court order.

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.

During the divorce process clients must deal with the very burdensome process of discovery.  The record keeping process does not end with the end of a case.  When there is an award of spousal support, both parties should continue to keep very careful records.  In some instances, spousal support will be withheld from a person’s wages.  The benefit of having state enforced support is that the state will take on the burden of record keeping.  Unfortunately the state does make mistakes, and it is important to keep backup records.  These records are important for both tax purposes and for potential future litigation purposes.

The person paying spousal support should:

• Make a detailed spreadsheet which lists all payments made.  The method of payment, check number, date, and the address to which the check was sent or direct deposit made should all be listed.  In addition, a copy of the outgoing payment should be kept;
• If payments are going to be made in cash, then the payee should sign a receipt at the time payment is accepted. 

The person receiving support should:

• Make a detailed spreadsheet which lists all payments received.  Including, the date the payment was received, the amount received, the check number or electronic payment record, the bank and account from which the payment was made.
• In addition, a copy of the payment should be kept.

Both parties should be aware of the tax impact of spousal support payment or receipt and should discuss how to appropriately deal with tax issues with his/her CPA.  You should contact a lawyer if you have any questions about your current spousal support award.

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.