In re Marriage Of Kasner

437 P.3d 1149, 296 Or. App. 54
CourtCourt of Appeals of Oregon
DecidedFebruary 6, 2019
DocketA163210
StatusPublished

This text of 437 P.3d 1149 (In re Marriage Of Kasner) 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 Kasner, 437 P.3d 1149, 296 Or. App. 54 (Or. Ct. App. 2019).

Opinion

DEHOOG, P. J.

*55Wife appeals the trial court's order denying an ORS 107.452 motion to reopen her dissolution case to address an interest in real property allegedly concealed by husband in the course of the parties' underlying divorce proceedings. In March 2015, the court entered a judgment that dissolved the parties' marriage, distributed their debts and assets, and awarded wife spousal support. Wife sought to reopen the case in August 2016, but the court denied her motion, explaining that the property at issue had not been omitted from the judgment. Wife appeals that denial. See ORS 19.205(3) (authorizing appeal of an order entered after a judgment that "affects a substantial right"). Husband does not appear on appeal. For the reasons that follow, we conclude that the trial court was not required to reopen the parties' dissolution case despite wife's allegation that an asset belonging to husband had existed at the time of the judgment but was not "discovered" until sometime thereafter. As a result, the trial court did not err in denying wife's motion. We therefore affirm.

Few facts from the underlying dissolution action are relevant to this appeal. Husband and wife married in 1994. Husband filed for dissolution in 2015. For seven of the last nine years of their marriage, the parties lived on a ranch property with husband's parents. The final two years of the marriage, the parties lived on the ranch without husband's parents, who by then were both deceased. The ownership of that ranch property-specifically, when husband became part owner of the ranch-was the focus of wife's post-judgment motion.

At trial, husband testified that his parents had granted him a one-quarter ownership interest in the ranch through a 1992 trust agreement. Upon reviewing the agreement, the trial court concluded that, because husband's resulting interest in the ranch predated the parties' marriage in 1994, that interest was not a marital asset; accordingly, the court awarded husband's interest in the ranch solely to him.1 See ORS 107.105(1)(f) (governing property *56division at dissolution; distinguishing property acquired before marriage from property acquired during the marriage and applying a presumption of equal contribution only to the latter). The trial court observed, however, that its ruling as to husband's interest in the ranch meant that husband would receive possession and partial ownership of the marital residence, while wife would be left essentially "homeless." The court therefore found that, to be "fair and just," it would be equitable to *1151award wife an equalizing sum of $10,000 to partly offset that disparity.2 In March 2015, the court entered a general judgment reflecting those rulings.

Wife filed a motion to reopen the dissolution case in August 2016. In her motion, wife asserted that, contrary to husband's testimony-and despite the 1992 trust agreement suggesting otherwise-she had recently learned from husband's sister-in-law that husband had not acquired his interest in the ranch as a beneficiary of the trust; rather, husband's parents had transferred the ranch property to husband and his siblings by deed in 1997, well after husband and wife were married. Wife contended that husband's interest in the ranch should therefore have been deemed a marital asset subject to the presumption of equal contribution and distributed accordingly. The trial court denied wife's motion to reopen the case, stating:

"DENIED. The [ranch] property was not omitted from the distribution. It is referenced by address and legal description in the General Judgment. Respondent was aware of the property at trial and had the opportunity to present evidence of the extent and value of Petitioner's interest in the property."

(Uppercase in original.) Wife appeals.3

*57Wife requests de novo review. She does not, however, explain why this is an extraordinary case justifying that treatment. ORAP 5.40(8)(c). Furthermore, the procedural posture of this case is not such that we could review the merits of wife's underlying factual claims even if we might otherwise find it appropriate to do so. That is, the trial court did not take any evidence or make any factual findings in connection with the challenged ruling. Rather, it denied wife's motion due to its apparent understanding of the law, namely, that ORS 107.452 did not require it to reopen the case based upon wife's allegations. Accordingly, we review the trial court's ruling on wife's motion to reopen for errors of law. Conrad and Conrad , 191 Or. App. 283, 286, 81 P.3d 749 (2003).

Wife's motion to reopen her dissolution case is governed by ORS 107.452, which provides, in relevant part:

"(1) A court that entered a judgment of marital annulment, dissolution or separation shall reopen the case upon the motion of either party if the moving party alleges that significant assets belonging to either or both of the parties:
"(a) Existed at the time of the entry of the judgment; and
"(b) Were not discovered until after the entry of the judgment."

If, after reopening the case, "the court finds that the assets were inadvertently omitted from the distribution of the marital estate," the court must distribute the assets "as is just and proper in all the circumstances." ORS 107.452(2). And, if the court finds "that the assets were intentionally concealed and thereby not included in the distribution of the *58marital estate," the court may impose any of several enumerated remedial or punitive measures. ORS 107.452(3).4 *1152We construed ORS 107.452 under somewhat similar circumstances in Conrad .5 In that case, the husband moved to reopen his dissolution case under ORS 107.452

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Related

Dunkin v. Dunkin
986 P.2d 706 (Court of Appeals of Oregon, 1999)
In Re the Marriage of Conrad
81 P.3d 749 (Court of Appeals of Oregon, 2003)
In re the Marriage of Tibbetts
52 P.3d 1067 (Court of Appeals of Oregon, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
437 P.3d 1149, 296 Or. App. 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-kasner-orctapp-2019.