The Oregon Divorce Blog

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

Meg Clark-Kilcoyne — Fri, 30 Mar 2012 21:05:43 +0000

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.

New Case Law – Modifications of Spousal Support

Meg Clark-Kilcoyne — Thu, 29 Mar 2012 21:42:22 +0000

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.

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

Meg Clark-Kilcoyne — Thu, 29 Mar 2012 17:36:40 +0000

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.

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

Meg Clark-Kilcoyne — Thu, 22 Mar 2012 17:46:05 +0000

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.

New Case Law – Attorney Fee Awards in Family Law Cases

Meg Clark-Kilcoyne — Wed, 21 Mar 2012 23:16:03 +0000

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.

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

Meg Clark-Kilcoyne — Wed, 21 Mar 2012 22:15:00 +0000

On December 14, 2011, the Oregon Court of Appeals decided Hanscam and Hanscam. In this case, the wife appealed the trial court’s division of property. The property in dispute included a rental property the husband purchased prior to the marriage, the husband’s accounting practice, the husband’s interest in a family partnership, and a Porsche. The trial court awarded the husband his premarital equity in the rental property, his premarital ownership interest in the accounting practice, his interest in the family business, and the full value of the Porsche as his separate property. The Court of Appeals, however, stated that although the husband’s premarital ownership in both the rental property and his accounting practice was one factor it must consider, it must also consider whether it was just and proper in all the circumstances to award that property to the husband as his separate asset. In this case, the wife’s contribution to and involvement in the management of the rental property entitled her to share equally in its value. Further, the wife’s contributions to the family which allowed the husband to grow his accounting practice, combined with her reliance on the practice as the family’s primary source of income, entitled her to share in the fully value of that asset. Finally, because the husband used marital funds to make improvements to the Porsche, the court found that the wife should share equally in its increase in value during the marriage. The court did not disturb the trial court’s treatment of the family business, which was the husband’s separately held property throughout the marriage.

The entire opinion can be found here.

Divorce and Social Security in 10 + year marriages

C. Sean Stephens — Wed, 14 Mar 2012 22:20:55 +0000

In meeting with divorcing Oregonians, I get a lot of questions about social security benefits as part of divorce. Many people don’t know, but if you have been married for at least ten years with your “soon to be ex” your spousee can recieve benfits based on your social security record (even if you have remarried) if:

You were married at least 10 years
Your ex is unmarried
Your ex is 62 or older
Your ex is entitled to receive less benefits from their own work history v.s yours.
You are entitled to benefits.

Divorcing couples seeking a cooperative resolution who have been married 9, but not quite 10 years may wish to delay finalization so that the lower earning spouse can be entitled to the maximum benefits.

Divorce and Smartphones

C. Sean Stephens — Fri, 09 Mar 2012 19:00:23 +0000

The Star Tribune ran an interesting article captioned “Divorce? Hide your smartphone.” As an Oregon divorce lawyer, the article rang true to me about how much smartphone technology has made previously private conversations public and permanent. Smartphones, texts, Facebook, and GPS features of smartphones add a whole new twist to the classic court “he said, she said’ arguments.

It’s now common for a potential client to show texts or email exchanges or facebook posts during a consultation. I commonly ask clients in preparing for hearings and trial what digital information might be out there that would assist in getting the Judge a good picture of what is really happening. For example (1) texts to the kids can show whether a parent is actually supportive of the other parent’s relationship with them or not; (2) if you need to be looking for a job for self support, your phone could show you spending the whole day searching non job related websites; and (3) Facebook posts may show what is actually going on in someone’s life vs. what they are telling the court.

So what to do with your smartphone? From your lawyer’s perspective, assume anything you text, email, blog, or post could be read by a judge in your case.

What To Do When Your Divorce Is This Weeks News

C. Sean Stephens — Tue, 06 Mar 2012 03:20:26 +0000

I get questions from potential and current clients about how to deal with the public knowledge (be it local media, your children’s school, your neighborhood or your friends) that you are going through a divorce.

The Huffington Post carried a good article by Linda Lipshutz, MS, ACSW on high profile divorces, and how to best conduct your business if you are unfortunate enough to be involved in one. So what to do when your friends, neighbors, or the media are dissecting and embellishing every sordid detail? Linda’s article correctly points out that (1) Public attention is short lived, and your neighbors / friends / the media will find another story that catches their attention soon; (2) Connecting with others helps enormously; and (3) No one can make you feel inferior without your permission.

Linda’s advice is spot on, and should be considered by all divorcing Oregonians who find that their private matter is not so private after all.

A link to the full Huffington Post article is here.

Enforcement of Personal Property Awards

C. Sean Stephens — Tue, 28 Feb 2012 23:19:08 +0000

Over the years helping clients with Oregon divorces, I have heard many people express frustration with their ex not following through on the personal property division. This seems to be much more of a problem in contentious cases. Judges have a distaste for litigating about who gets the household personal property, which makes it more important to have good language in your general judgment of divorce about how personal property will be transferred between the parties. It’s important to identify with specificity what personal property you want back and who has possession of it. I have seen courts decline to enforce personal property awards where, post judgment, someone is asking for a specific piece of property back, but the general judgment just says “husband gets his property, wife gets hers.” If you care enough about it to want it back, identify it!

In the event you cannot get your ex to return the property awarded to you in the divorce judgment, the court does provide two remedies for retrieival. The first is contempt of court. Under the contempt statute, the court has broad power to fine, sanction, and assess attorney fees against a person wrongfully retaining personal property.

A second remedy (contained in ORCP 85) is “claim and delivery”, which allows for the sheriff to retrieve the property on behalf of the rightful owner.

Consult with a lawyer familiar with both remedies should you have difficulty retrieving your personal property after your divorce is finalized.