In Re Marriage of Gudmundson

929 P.2d 319, 145 Or. App. 135, 1996 Ore. App. LEXIS 1833
CourtCourt of Appeals of Oregon
DecidedDecember 4, 1996
Docket15-95-02362; CA A91806
StatusPublished
Cited by4 cases

This text of 929 P.2d 319 (In Re Marriage of Gudmundson) 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
In Re Marriage of Gudmundson, 929 P.2d 319, 145 Or. App. 135, 1996 Ore. App. LEXIS 1833 (Or. Ct. App. 1996).

Opinion

*137 LEESON, J.

Husband appeals from a dissolution judgment, challenging the trial court’s award of child and spousal support and its award of an equalizing judgment to wife. On de novo review, ORS 19.125(3), we modify the award of spousal support, remand for recalculation of child support and otherwise affirm.

The parties were married in December 1988 and separated in July 1994. At the time of trial in December 1995, husband was 33 years old and wife was 30; both are in good health. They had no children during their marriage, but husband adopted wife’s son from her previous relationship. Wife was awarded custody of that child, age eight. The child suffers from Duchenne’s muscular dystrophy and is paralyzed from the waist down. According to his doctor, he probably will become bedridden by age 17 or 18 and has a short life expectancy.

Wife is a high school graduate with secretarial skills and a certificate in office automation and desktop publishing. She speaks both English and Spanish and works as a bilingual job placement counselor for a nonprofit agency. Her gross salary is $1,386 per month and she receives $262 per month in social security benefits for the child. The child is on the Oregon Health Plan and receives aid from Shriner’s Hospital. Wife testified that she would like to enhance her job skills and find a better paying job but she believes that she will have difficulty doing so because of the time she must spend caring for the child. Presently, the child is able to attend school and goes to day care after school, but as his condition deteriorates, wife would like to spend more time at home with him and plans to care for him full time when it becomes necessary. As his disease progresses, he will require more medical equipment and mobility aids, the cost of which could reach $52,400.

Husband is an independent contractor who sells medical equipment for Pacific Medical, Inc. (Pacific Medical). He is paid by commission and his sales territory is between Corvallis and the California border. Before November 1, 1995, he sold products both for Pacific Medical and for OJI *138 Surgical, Inc. (OJI). The parties’ tax returns reflect that husband earned gross incomes of $94,582 in 1993, $90,644 in 1994, and $97,200 in 1995, or a monthly average of $7,845.17, over the last three years. In 1995, his gross monthly average income was $8,000 per month.

At trial, husband testified that his past earnings were not indicative of his present earning capacity because he lost his position with OJI at the end of October 1995. His former boss at OJI, Kraus, testified that husband was fired after OJI lost its biggest product line. Kraus also testified that OJI had paid husband an average monthly commission of $3,474.42 in 1993, $3,226.64 in 1994 and $3,398.03 in 1995. Husband testified that he would be unable to replace this income by working for another company, because Pacific Medical now objects to his selling other companies’ products. According to husband, after he lost his position at OJI, Pacific Medical encouraged him “to stay solely with them.” However, he conceded that although Pacific Medical’s policy had always been to discourage its representatives from working for other companies, it had allowed him to work for OJI because of the costs incurred as a result of the child’s disability.

Husband testified that although his gross income for his first full month of working solely for Pacific Medical, November 1995, was $7,021.21, he believes that his December 1995 income of $4,046.65 more accurately reflects his current earning capacity. However, he also testified that he had taken some time off in December. Husband testified that his earnings would decline even further in the future, because Pacific Medical was losing a product line that accounted for $540 per month of his income in 1995.

Husband presented conflicting evidence concerning his business expenses. In his trial memorandum, he stated that he incurred “approximately $31,000 [$2,583 per month] in business expenses per year.” At trial, husband provided the court with a hand-written list of his expenses, calling that exhibit “a close representation of my expenses.” Exhibit 8 listed the following monthly business expenses: office phone, $250; mobile phone, $425; gas, $350; automobile maintenance, $50; pager, $36.40; office expenses, $50.00; samples, *139 $100; and payment on credit card for business, $500. Exhibit 8 also included category headings entitled “Electric % of Bill” and “Room % of Bill,” but those categories were left blank. The expenses listed in exhibit 8 total $1,761.40 per month. 1 Husband also testified that the parties’ 1994 tax return, which listed his expenses as $34,897 ($2,908 per month), accurately reflected the business expenses that he incurred in 1994. However, he provided no receipts or other documentation of those expenses.

On cross-examination, husband conceded that Pacific Medical occasionally paid a small portion of his expenses “up front” and that those amounts then were deducted from his commission totals before he was paid. In addition, he testified that he does not keep a mileage journal for tax purposes. Instead, he writes down his car’s mileage at the start of the year and then reports the difference between it and the mileage at the end of the year as business-related mileage. He is unable to distinguish between business and personal mileage. He also testified that although he keeps receipts from business-related entertainment, he does not document the nature of the business conducted.

The trial court made no explicit findings about the parties’ incomes or the amount it allowed husband to deduct for business expenses. However, a worksheet attached to the court’s opinion shows that it calculated husband’s child support obligation by using $1,300 as wife’s gross monthly income and $6,000 as husband’s gross monthly income after allowable expenses. It awarded wife $644.18 per month in child support; spousal support of $1,500 per month to continue until the child’s 21st birthday or his death, whichever comes first; and a $9,000 equalizing judgment to compensate for an unequal division of the property and to “reflect the use of marital funds” in husband’s purchase of a separate home in December 1994.

Husband’s first three assignments of error challenge the trial court’s calculation of child support. He argues that the award was based on erroneous income figures for both *140 husband and wife, that the trial court failed to take into account the unrefuted evidence that his income will decline dramatically in 1996 and that it failed to deduct the full amount of his business expenses when determining his gross income. Husband contends that his gross monthly income for 1996 should be based on his sales for Pacific Medical for 1994 and 1995, after deducting the commissions from the lost product line. According to husband, his 1996 gross income after allowable expenses will be $2,735 per month. He also contends that wife’s gross monthly income is $1,386, not $1,300.

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Cite This Page — Counsel Stack

Bluebook (online)
929 P.2d 319, 145 Or. App. 135, 1996 Ore. App. LEXIS 1833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-gudmundson-orctapp-1996.