In re the Dissolution of the Marriage of Paget

585 P.2d 38, 36 Or. App. 595, 1978 Ore. App. LEXIS 1969
CourtCourt of Appeals of Oregon
DecidedOctober 16, 1978
DocketNo. 91401, CA 9013
StatusPublished
Cited by1 cases

This text of 585 P.2d 38 (In re the Dissolution of the Marriage of Paget) 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 Paget, 585 P.2d 38, 36 Or. App. 595, 1978 Ore. App. LEXIS 1969 (Or. Ct. App. 1978).

Opinion

GILLETTE, J.

The husband appeals from a marriage dissolution decree and assigns as error: (1) the amount and duration of spousal support, (2) the court’s order that certain of the wife’s debts, incurred by the wife after entry of an order for temporary support, be paid from the proceeds of the sale of certain jointly-owned real property, and (3) the court’s order that attorneys’ fees and costs for both parties be paid from the proceeds of the sale.

At the time of trial, the parties had been married for 25 years; wife was 47 and husband 48. They had three children, aged 23, 20 and 14.

On our de novo review, there would be no benefit in a recitation of the parties’ marriage history. Suffice it to say that the testimony indicates that the parties have lived lavishly during most of their marriage, with most of the high cost of the lifestyle being borne by the use of capital trust assets borrowed from the parties’ children.

Because of intricate family estate planning and business and financial transactions, the assets of the parties are difficult to particularize and their value difficult to ascertain. The trial judge listened to lengthy and complicated testimony from real estate appraisers, accountants and the parties themselves before identifying and valuing the assets and issuing a decree. The husband was awarded his real estate mortgage and investment business. The wife was awarded the condominium in which she now lives, subject to a mortgage of $38,200, and a parcel of real property valued at $18,000. The wife was also awarded spousal support in the amount of $1,000 per month for the first three years, to be reduced to $700 per month for the next two years, and then to $500 per month thereafter. The court also ordered the sale of a parcel of jointly-owned real property (the Tumalo property) with the proceeds to be used to pay specified debts of the parties, including attorneys’ fees.

[598]*598The husband first challenges the award of spousal support and argues that it is not commensurate with his assets and income-earning capacities. Husband admits there have been substantial assets in the past, but claims that the capital the parties once owned has been consumed and that there are simply no more capital assets. In particular, husband argues that there is no basis for the court’s finding the husband receives income in excess of $30,000 per year as a property appraiser nor for the court’s valuation of his business as an asset worth $100,000.

We have examined the record as to husband’s contentions concerning alleged errors in the valuation of his property and income. Although there is room for argument on the amount arrived at by the court, we believe that the valuations are reasonable. Husband’s financial statements indicate he earned income as an appraiser in the amount of $32,207.73 in 1974 and $65,136.50 in 1975. Husband also filed an affidavit indicating he earned $16,292.50 in appraisal fees in the first six months of 1976. An annual income of $30,000 is a reasonable estimate of husband’s income-producing capabilities. The valuation of the corporation’s worth is likewise reasonable. The financial picture of the corporation is characterized by complicated tax and accounting considerations, but an overall analysis of the corporation returns and the nature of the corporation suggests $100,000 is a reasonable valuation. We are not convinced that the lower court made a mistake, and decline to substitute an alternative valuation. McCoy and McCoy, 28 Or App 919, 926-28, 562 P2d 207 (1977).

Husband also argues that the trial court failed to consider his problem with alcoholism and the impact this problem would have on his ability to earn sufficient income to meet his support obligations. Our review of the record did not reveal any testimony that the husband’s drinking problem would interfere with his earning capabilities; on the contrary, husband [599]*599testified that his problem with alcohol is now under control.

Husband complains that the trial court improperly took into consideration a potential inheritance from his mother. Nothing in the trial judge’s opinion suggests this was a pivotal factor in his division of the property, nor would it affect ours. The record does indicate that a $96,000 note husband claims to owe his mother was never intended to be collected by her. We think the trial court’s award of spousal support is proper.

Husband’s second assignment of error is that the trial court erred in ordering the proceeds from the sale of the Tumalo property to be applied to specified debts of the parties, with any excess to be divided equally between them. Husband complains that he should not be responsible for some of these debts of the wife because they were incurred after a pendente lite order was entered on September 17, 1976, in which the wife was ordered not to incur further debts for which she would hold husband responsible. Unfortunately, husband neglects to indicate which debts or what amounts were incurred after September 16, 1976. Our de novo review suggests that at least some of the bills referred to were incurred after entry of the pendente lite order. However, while the precise amount of these later incurred obligations is not established, it is clear that, after disregarding two attorneys’ fees items which are separately dealt with under assignment of error number three, infra, the remaining debts represent a small percentage of the total outstanding obligations. As we stated in Craig and Craig, 30 Or App 419, 423, 567 P2d 141 (1977):

"To engage in minor modifications tends to diminish the stability of circuit court decrees and encourage appeals in hopes the appellate court will make minor adjustments.”

While we do not wish to encourage trial judges to modify their own pendente lite orders post hoc, we are [600]*600not persuaded that the trial judge was clearly wrong in doing so here and we decline to modify the trial court’s decree with respect to payment of debts.

Husband’s third assignment of error is directed at the court’s award of costs and attorneys’ fees. The wife had retained and then dismissed one attorney, then retained and dismissed another attorney, and finally retained the attorney who represented her at trial. At the time the decree was entered, the charges of the first two were before the trial court, but the bill of the attorney who represented petitioner at trial was not. The trial court ordered that a specific parcel of property be sold and that the proceeds be used, among other things: (1) to pay the specific amounts claimed by petitioner’s first two attorneys, (2) to pay whatever unspecified amount was claimed by petitioner’s third attorney, and (3) to pay whatever unspecified amount was claimed by respondent’s attorney. We hold that the trial court’s disposition was in part contrary to statute and in part inequitable.

ORS 107.445 provides:

"* * * [WJith the decree in any suit to annul or dissolve a marriage * * * the court may make an order awarding to a party a sum of money determined to be reasonable as an attorney fee therein. The order shall be entered and docketed as a judgment, and execution may issue thereon in the same manner and with like effect as upon a final decree.” (Emphasis added.)

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Related

In re the Marriage of Moore
641 P.2d 74 (Court of Appeals of Oregon, 1982)

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Bluebook (online)
585 P.2d 38, 36 Or. App. 595, 1978 Ore. App. LEXIS 1969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-dissolution-of-the-marriage-of-paget-orctapp-1978.