Cumming and Cumming

Opinion

364 August 19, 2026 No. 789

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of the Marriage of Elissa CUMMING, Petitioner-Appellant,

and

Scott M. CUMMING, Respondent-Respondent.

Deschutes County Circuit Court 22DR14381; A183850

Michelle A. McIver, Judge. Argued and submitted October 16, 2025. George W. Kelly argued the cause and filed the briefs for appellant.

Laura Graser argued the cause and filed the brief for respondent.

Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán, Judge.

PAGÁN, J. Affirmed.

Nonprecedential Memo Op: 352 Or App 364 (2026) 365

PAGÁN, J.

Wife appeals from a judgment dissolving the parties ’ eight-year marriage, assigning error to the trial court’s failure to award her spousal support and to findings underlying that determination. In reviewing the trial court’s findings for “any evidence” in the record, Porter and Griffin, 245 Or App 178, 262 P3d 1169 (2011), and its determination as to spousal support for an abuse of discretion, Berg and Berg, 250 Or App 1, 2, 279 P3d 286 (2012), we conclude that the trial court’s findings are supported by the evidence, and that the trial court’s ruling declining to award wife spousal support was within the permissible scope of the court’s discretion ; we therefore affirm.

The parties met in 2011 and were married in 2015.

Husband was a college student at the time and then attended law school. While husband was a student, the parties lived in a small apartment in a house owned by husband’s parents, at a reduced rent of $350 per month. During the entire marriage , the parties kept their finances separate. They paid their expenses primarily from husband’s student loans, and they also had some income from selling belongings on eBay and from part-time employment. The parties had help from husband’s parents in the form of reduced rent and vacations. Wife received food stamps, which she shared with husband. With husband’s assistance, in 2017, wife received a social security disability award for post-traumatic stress disorder, and she contributed her monthly benefits to the parties’ living expenses. Husband graduated from law school in 2020 and became a member of the Oregon State Bar.

In 2020, with the assistance of a loan from husband’s parents, the parties bought a house in Bend. Although the parties kept their finances separate, they listed wife’s social security disability income on their mortgage application, and wife used part of her lump sum social security award to buy a refrigerator and a mattress for the Bend house. Husband paid the mortgage on the Bend house, and wife contributed some of her work earnings to household expenses.

The parties separated in 2022. Wife excluded husband from the Bend house and filed the dissolution petition 366 Cumming and Cumming

in 2023. The parties were in their mid-thirties at the time of trial. Husband is now an attorney in his own private practice, with a gross income of approximately $12,363 per month. Wife, who holds a general equivalency diploma, currently works part-time for UberEats and DoorDash. She contends that she is unable to work full-time because of her mental and physical health issues. She has no plans to advance her education. In addition to part-time employment, her income consists of social security disability benefits, food stamps, financial assistance from her parents, and rental income from her sister, who lives with her in the parties’ house. The trial court noted a prior determination by the court that wife has a potential income of $3,075 per month.

Wife sought to be awarded the marital residence.

Wife asserted at trial that, because of her health issues, she is not able to work full-time. Citing the parties’ different education levels, husband’s greater earning capacity, and wife’s health issues, wife sought indefinite monthly support of $1,300.1 Wife asserted that if she were awarded the house, her support need would be less because she could earn rental income. In the alternative, wife sought a 75 percent interest in the equity of the Bend house and five years of monthly support of $2,500, followed by indefinite support of $2,000.

Husband argued that wife was not entitled to spousal support. He agreed to assume all marital debts, consisting primarily of his student loans on which the parties had lived while he was in law school, and proposed dividing the equity in the Bend house.

The dissolution judgment largely followed husband’s plan. The court found that during the marriage, the parties lived modestly, relying primarily on husband’s student loans. The court found that “the parties led very different lives and barely intertwined themselves in each other’s daily lives let alone financially.” The court cited as persuasive the testimony of a neighbor that wife lived approximately half-time 1 ORS 107.105(1)(d) provides that a dissolution judgment entered by the trial court may include “[f]or spousal support, an amount of money for a period of time as may be just and equitable for one party to contribute to the other, in gross or in installments or both.” “Spousal maintenance” is one of the three types of support that a judgment may provide and is described in ORS 107.105(1)(d)(C).

Nonprecedential Memo Op: 352 Or App 364 (2026) 367

at the parties’ home. It ordered the parties to sell the Bend house and to share equally the proceeds of sale, estimated to be $200,000. The judgment ordered husband to assume all marital debts. The judgment did not award wife any spousal support.

The only aspect of the judgment in dispute on appeal is the lack of a spousal support award. In her first assignment of error, wife asserts that some of the trial court’s findings on which it based its spousal support determination are not supported by legally sufficient evidence in the record. Specifically, wife challenges the trial court’s finding that “[i]t is unclear [after wife received her social security award] why Wife did not work, and the evidence does not support that the reason was due to lack of ability.” Wife contends that “it is no mystery why” wife was unable to work after receiving her social security award, in light of the disability order and a long list of asserted mental and physical health issues. But the clearest explanation for the trial court’s ruling is that the court simply did not find wife credible as to her inability to work. The trial court found, “After full review of the record, the evidence does not objectively support that Wife is unable to work due to physical disability.” Wife does not challenge that finding.

Additionally, the court found, based on the testimony of husband’s medical expert, that wife’s “perspective regarding medical issues is, at times, unsupported by objective evidence” and that wife’s physical symptoms are “somatic complaints.” Wife challenges that finding, but we conclude that it is supported by legally sufficient evidence in the record. There is evidence that wife does not suffer from one of the conditions that she asserts limits her working ability and that wife engaged in activities after receiving her social security award that allowed an inference of a physical ability to work.

Wife challenges several other findings by the trial court in her first assignment but we have reviewed the record and we conclude that all of those findings also are supported by legally sufficient evidence in the record.

368 Cumming and Cumming

We next consider wife’s second assignment of error.

As summarized above, if she were not to be awarded the Bend house, wife requested maintenance spousal support in the amount of $2,500 per month for five years, followed by indefinite support of $2,000 per month. Wife’s rationale for the requested support focused on the parties’ different education levels and earning capacities and wife’s asserted health issues.

Challenging the trial court’s failure to award support based on legal error, wife contends that the court’s letter opinion and judgment show that the court did not consider all of the factors in ORS 107.105(1)(d)(C) that bear on maintenance support and, further, that the court erroneously considered factors that were irrelevant and that should not have been considered.2 In deciding whether to award maintenance support and how much support to award, the trial court is to consider:

“”(i) The duration of the marriage; “(ii) The age of the parties; “(iii) The health of the parties, including their physical , mental and emotional condition;

“(iv) The standard of living established during the marriage;

“(v) The relative income and earning capacity of the parties, recognizing that the wage earner’s continuing income may be a basis for support distinct from the income that the supported spouse may receive from the distribution of marital property;

“(vi) A party’s training and employment skills; “(vii) A party’s work experience; “(viii) The financial needs and resources of each party; “(ix) The tax consequences to each party;

2 We note that wife did not request “transitional” support. See ORS 107.105(1)

(d)(A) (allowing a court to award “transitional spousal support” “as needed for a party to attain education and training necessary to allow the party to prepare for reentry into the job market or for advancement therein”). Wife testified that she has no plans to further her education so that she can earn more.

Nonprecedential Memo Op: 352 Or App 364 (2026) 369

“(x) A party’s custodial and child support responsibilities ; and “(xi) Any other factors the court deems just and equitable.” ORS 107.105(1)(d)(C)(i)-(xi)). And in ordering spousal support , the court is required to make findings. ORS 107.105(1) (d) (“In making the spousal support order, the court shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision.”). In reviewing the trial court’s findings, we accept them as true if there is any evidence to support them. Berg, 250 Or App at 2.

We review a trial court’s ultimate determination of spousal support for abuse of discretion. Morgan and Morgan, 269 Or App 156, 157, 344 P3d 81, rev den, 357 Or 595 (2015). The trial court’s determination will be upheld if, given the findings of the trial court that are supported by the record, the court’s determination represents a choice among legally correct alternatives. Berg, 250 Or App at 2. “[W]e will not disturb the trial court’s discretionary determination unless the trial court misapplied the statutory and equitable considerations required by ORS 107.105.” Mitchell and Mitchell, 271 Or App 800, 811, 353 P3d 28 (2015) (internal quotations marks omitted). The ultimate question in reviewing a trial court’s spousal support determination is whether it is just and equitable under ORS 107.105(1)(d).

In determining that it would not award wife spousal support, the trial court cited the “short duration of the marriage , the lack of comingled finances, the significant portions of time that the parties lived very different lives, [and] the lack of financial dependency Husband experienced from Wife while he obtained his undergrad and law degrees.” The trial court also made a finding, as discussed above, that wife’s evidence did not establish that her physical symptoms prevented her from working.

Wife argues that the trial court’s findings show that, in declining to award spousal support, the court neglected to consider wife’s health and the disparity in the parties’ educations and earning capacities. It is true that the court’s 370 Cumming and Cumming

letter opinion and the judgment do not explicitly mention those issues in the context of the determination of spousal support. But it is also apparent from the court’s findings that it considered them. And although the court did not make an explicit credibility determination, it is apparent that the court did not find wife to be credible with respect to the effects of her asserted health conditions on her ability to work. The court’s decision not to award spousal support was primarily driven by the court’s findings that the parties had lived very separate lives during their relatively short marriage, that they had not intermingled their finances, and that wife had not been financially dependent on husband . Rather, apart from some small amounts attributable to part-time employment and wife’s disability benefits and food stamps, the couple had lived primarily off of husband’s student loans and assistance from their parents.

Wife contends that the trial court’s letter opinion and the judgment show that, in its evaluation of support, the court mistakenly attributed significance to the fact that wife’s physical and psychological conditions arose outside of the marriage. The court’s letter opinion and judgment did mention that wife’s various conditions arose outside of the marriage. But we do not conclude that the court erroneously factored those considerations into its determination on support —rather, the court simply noted the circumstances, but did not refer to them in its reasons for denying support.

The purpose of spousal maintenance support “is to allow one financially able spouse to contribute to the support of the other, depending on the financial needs and resources of each party.” Abrams and Abrams, 243 Or App 203, 207, 259 P3d 92, rev den, 350 Or 716 (2011). In a long-term marriage, the goal of maintenance support is to enable the parties to live separately at a standard of living not overly disproportionate to that enjoyed by them during the marriage, to the extent possible. Potts and Potts, 217 Or App 581, 586,176 P3d 1282 (2008)). But in a marriage of shorter duration such as this one, in which the parties have not been financially dependent on each other, maintenance support may not be appropriate. See Grove and Grove, 280 Or 341, 571 P2d 477, modified, 280 Or 769, 572 P2d 1320 (1977) (the objective of

Nonprecedential Memo Op: 352 Or App 364 (2026) 371

spousal support is to allow the dependent spouse to have a standard of living “not overly disproportionate one way or the other” to that enjoyed during the marriage). Here, the evidence supports the trial court’s determination that parties did not commingle their resources and were not financially dependent on each other during the marriage; the judgment awards the parties equal property and does not assign to wife any of the marital debt. We have reviewed the record and conclude that, in light of the trial court’s findings, and considering the relatively short duration of the marriage, wife’s lack of financial dependence on husband, the property division, and the parties’ young ages at the time of dissolution , the court’s decision not to award wife spousal support was within the court’s discretion in making a just and equitable determination.

Affirmed.