Hostetler v. Hostetler

344 P.3d 126, 269 Or. App. 312, 2015 Ore. App. LEXIS 228
CourtCourt of Appeals of Oregon
DecidedFebruary 25, 2015
Docket10C30754; A149924
StatusPublished
Cited by7 cases

This text of 344 P.3d 126 (Hostetler v. Hostetler) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hostetler v. Hostetler, 344 P.3d 126, 269 Or. App. 312, 2015 Ore. App. LEXIS 228 (Or. Ct. App. 2015).

Opinion

DUNCAN, P. J.

Husband appeals from a dissolution judgment, assigning error to the trial court’s property division and its denial of his request for attorney fees. With respect to the property division, husband argues that the trial court erred by failing to give him one half of the marital asset portion of wife’s retirement accounts and by assigning all of the marital debt to him. We conclude that, contrary to husband’s arguments, the trial court engaged in the process contemplated by ORS 107.105(l)(f) (2008) and properly exercised its discretion in determining a just and proper division of the parties’ assets and liabilities.1 With respect to the attorney fees, husband argues that the trial court erred by failing to explain its denial of his request for attorney fees. We conclude that, because husband did not request, as required by ORCP 68 (C)(4)(g), that the trial court state its findings of fact and conclusions of law on the record, the court did not err in failing to do so. Accordingly, we affirm.

The relevant facts are undisputed.2 After dating intermittently for 17 years, the parties began living together in March 2006, and they married in July 2007. They separated in January 2010, and wife filed for dissolution in March 2010. At the time of the dissolution trial, the parties had been married approximately four years. Wife was 54 years old, and husband was 61. The parties have one adopted child, a son, who was age nine at the time of trial. After trial, the trial court entered a general judgment of dissolution on September 30, 2011.

At the time of their marriage, husband was retired and receiving a monthly pension benefit from the Oregon [314]*314Public Employee Retirement System (PERS). At the time of the dissolution trial, husband’s monthly income was $6,598; he received $5,100 in PERS benefits and $1,498 in Social Security benefits based on his employment history. He also received $962 in Social Security benefits for the parties’ minor son, of whom he had custody. During the marriage, husband stayed home to care for the parties’ son, and wife worked as a mental-health therapist. At the time of the dissolution trial, wife’s monthly income from employment was $4,301. Wife was also a member of PERS and owned three retirement accounts related to her public employment: a PERS Tier Two account, a PERS Individual Account Program (IAP), and an Oregon Savings Growth Plan (OSGP) account.

The parties’ dissolution trial was conducted over two days. On the first day, the parties and the court resolved most of the disputed issues relating to the dissolution, including child custody, a division of their tangible personal property, and the value of the family home. On the second day, the parties resolved disputed issues relating to child support. The remaining issues concerned the division of the parties’ remaining assets (including the family home and wife’s PERS accounts) and the division of marital debt. Husband offered into evidence a proposed distribution of assets and liabilities.

Husband requested an equal division of the marital asset portion of wife’s PERS accounts. According to husband, the account balances at the time of trial were as follows: $29,386 in the Tier Two account, $27,297 in the IAP account, and $11,818 in the OSGP account, for a total of $68,501. After deducting the premarital value of the accounts and estimated future taxes, husband calculated a net marital increase in value of $23,153. Wife did not dispute those figures. Husband requested an award of half of the accounts’ net marital increase: $11,576.

Husband offered evidence that the debt accumulated by the parties during the marriage — and prior to their separation — totaled $8,469. That debt, according to husband, derived from a credit card, a credit line, and a medical bill for the parties’ son. Wife did not dispute either the amount [315]*315or nature of the marital debt. Husband indicated that he was currently paying the debt and would continue to do so, but requested that half of the value of the debt be “attributable to [wife]”; that is, that wife’s portion of the marital debt be “added in some manner” to any award to husband.

The trial court explained that it was not going to rely on husband’s proposed division or attempt to make a mathematically equal division of the marital assets and liabilities. Rather, because of a number of considerations (including the long-term nature of the parties’ relationship, husband’s monthly retirement income, the award to husband of the marital residence — including its anticipated appreciation in value — free of any interest by wife, and husband’s receipt of the child’s Social Security benefits), the court said that an equal division of marital assets and liabilities had been “rebutted,” and that it would attempt to make an equitable division of the assets and liabilities that permitted each of the parties to maintain a lifestyle similar to that which they had before the dissolution. Therefore, the court rejected husband’s suggestion that the court equalize the property and debt division through a division of wife’s retirement accounts, which the court considered to be small compared to husband’s.

Although husband’s PERS account had been earned prior to the marriage and the court believed that it could not divide that asset or its income stream, the court nonetheless concluded that it was appropriate to consider husband’s retirement income in determining an equitable distribution of the parties’ assets. The court explained, “I’m not going to give any of [husband’s retirement income] to [wife]. What I am going to do is consider it when I try to do some equitable distribution * * *.” The court thus awarded 90 percent of the overall balance of wife’s retirement accounts to wife and 10 percent to husband. The court did not distinguish between the premarital and marital portions of the accounts.3

[316]*316In addition to seeking one half of the marital portion of wife’s retirement accounts, husband sought to be credited for his payment of the marital debt through some form of “equalization.” The trial court rejected any form of equalizing judgment, explaining that it did not want either party to owe money to the other. The judgment allocated the entirety of the parties’ marital debt to husband.

Finally, the trial court denied both parties’ requests for attorney fees without explanation. At trial, the court simply stated, “I’m not going to award attorney’s fees to either one, you can be responsible for your own fees.” Likewise, in the dissolution judgment, the court ordered that “[b]oth parties [be] responsible for their own attorney fees and costs.”

On appeal, husband raises three assignments of error. The first two assignments pertain to the trial court’s division of the parties’ marital property; specifically, the first assignment challenges the division of wife’s retirement accounts, and the second assignment challenges the allocation of all of the marital debt to husband. With respect to the first assignment, husband cites Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004), and contends that the court erred when it (1) failed to engage in an analysis with respect to the presumption of equal contribution to the marital increase in the accounts and whether it had been rebutted, and (2) failed to order an equal division of the marital increase in the accounts in the absence of countervailing equitable considerations.

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Cite This Page — Counsel Stack

Bluebook (online)
344 P.3d 126, 269 Or. App. 312, 2015 Ore. App. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hostetler-v-hostetler-orctapp-2015.