In re the Dissolution of the Marriage of Dietz

527 P.2d 427, 19 Or. App. 334, 1974 Ore. App. LEXIS 748
CourtCourt of Appeals of Oregon
DecidedOctober 28, 1974
DocketNo. 82594
StatusPublished
Cited by6 cases

This text of 527 P.2d 427 (In re the Dissolution of the Marriage of Dietz) 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 the Dissolution of the Marriage of Dietz, 527 P.2d 427, 19 Or. App. 334, 1974 Ore. App. LEXIS 748 (Or. Ct. App. 1974).

Opinion

FOLEY, J.

This is a suit for the dissolution of the marriage of the parties, tried in the circuit court for Clackamas County. A decree was entered dissolving the marriage of the parties and awarding the custody of one minor child of the parties to the wife, subject to reasonable visitation rights for the husband. The husband is required to pay $100 per month in support of the minor child at home and $100 per month in support of the child of the parties who is attending college. Two other children of the parties are emancipated. The wife has appealed the provisions of the decree pertaining to the award of child support, the distribution of the « real and personal property of the parties, and the failure to award attorney fees and costs to the wife.

Our review is de novo. Newman v. Newman, 8 Or App 220, 493 P2d 71, Sup Ct review denied (1972); Emery v. Emery, 5 Or App 133, 481 P2d 656, Sup Ct review denied (1971).

The trial court made the following distribution of property; the values attributed to the portions are [337]*337based upon the determinations of the trial court or, in the absence of a trial court determination, calculations made by this court based upon conflicting evidence:

To the wife:

75 shares, Canby Union Bank $ 71,250.00 10.4 acres, located in Clackamas
County 10,400.00
Sunriver lot, Deschutes County 7,400.00
Savings account, wife’s name 4,700.00
Savings account, joint, $13,859.95 10,000.00
Total $103,750.00

To the husband: Assets:

Homeplace farm, Clackamas County $128,800.00 Black Butte Ranch lot, Deschutes
County 28,000.00
Notes Receivable, Dietz Airpark 16,963.64
One-third interest, Hiway Parts Inc. 13,333.00
One-third interest, CJS Partnership 6,000.00
Farm Machinery 7,500.00
Cattle 3,500.00
Grain 10,000.00
Savings account, joint, $13,859.95,
balance 3,859.95
Total Assets $217,956.59
Liabilities:
Debt on homeplace farm $ 13,500.00
Debt on Black Butte Ranch lot 16,000.00
Debt on purchase of bank stock 6,500.00
Installation of water system, Dietz
Airpark 2,500.00
Blazer automobile 3,200.00
Total Liabilities $ 41,700.00
Net $176,256.59

The trial court also gave the wife full ownership of the interest she received, by inheritance, from [338]*338a trust created by her father. This interest was inherited after the parties had separated and after the commencement of these proceedings. The valuation of the inheritance given to the wife by the trial court ranges from $118,669 to $815,369, depending upon the method chosen to value the stocks contained in the inheritance. At the very least, the inheritance is substantial.

In determining a property division on divorce the relevant factors are

(“* * * [t]he financial condition of the parties; the nature and value of their respective properties; the contribution of each to any property held by them as tenants by the entirety; the duration of the marriage; the husband’s income, his earning capacity, his age, health, and ability to labor; and the wife’s age, health, station and ability to earn a living. * * Ray v. Ray, 11 Or App 246, 251, 502 P2d 397 (1972).

Although both husband and wife have stressed the initial source of many of the marital assets, the respective contributions of the parties are only one of many factors which the trial judge is to consider in making a disposition of the marital property. Prince v. Prince, 225 Or 331, 332, 358 P2d 506 (1960); Sharp v. Sharp, 12 Or App 421, 425, 507 P2d 417 (1973). As the property listing demonstrates, both parties are in relatively strong financial condition, and an attempt has been made to leave each party with the property which will be especially valuable to him or her. At the time of the initiation of these proceedings the parties had been married for 26 years. They both contributed substantially to the now-considerable marital assets.

Although the wife has stated that she is in need [339]*339of some dental work, neither party has claimed to have any major medical problems, and both appear able to earn a living. The wife is 50 years of age and is employed by the Canby Union Bank as a vice-president and as a member of the board of directors at the bank. She receives $634 a month in net salary and $50 a month in director’s fees.

The trust property which the wife has received by inheritance should also produce a fair amount of income for her.

The husband is 48 years of age and currently holds a job with another bank which provides him with take-home pay of $229 every two weeks. He also carries on his own farming operation, including custom farming, and he now has 110 acres under cultivation. Additionally, the trial court decree has assured him other income in that he has been given control of the Dietz Airpark management which produces $259 a month in maintenance fees, and certain investments in partnerships have been granted to the husband, which may or may not provide substantial profits in the future. In essence, neither party should have any difficulty in maintaining a good standard of living.

Basically, then, we are confronted with a long marriage in which both parties contributed to the development of the marital assets, in which both parties are healthy, and in which both parties are of similar age and have the ability to produce adequate income. In such circumstances, it is appropriate to divide the marital assets as equally as possible. Although the trial court did not specifically state the reasons for the particular distribution that it made, we ’infer from the over-all allocation that the trial court considered the wife’s inheritance after the commencement of the ac[340]*340tion as a relevant factor and thereby gave the husband a larger portion of the marital assets. While the source of an asset is a relevant factor, it is not controlling. Morgan v. Morgan, 13 Or App 14, 23, 507 P2d 409, Sup Ct review denied (1973). We believe that in the circumstances of this case the inheritance should not be considered in the distribution of the marital assets.

In our review of the record, we also note that the $4,700 in the savings account in the wife’s name represents the remainder of $5,000 which was allocated to her during the pendency of these proceedings. The husband also received $5,000, which he has spent.

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547 P.2d 639 (Court of Appeals of Oregon, 1976)
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535 P.2d 774 (Court of Appeals of Oregon, 1975)
In Re the Dissolution of the Marriage of Dietz
533 P.2d 783 (Oregon Supreme Court, 1975)
In re the Dissolution of the Marriage of Blain
528 P.2d 128 (Court of Appeals of Oregon, 1974)

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527 P.2d 427, 19 Or. App. 334, 1974 Ore. App. LEXIS 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-dissolution-of-the-marriage-of-dietz-orctapp-1974.