In re the Marriage of Albers

23 P.3d 430, 174 Or. App. 243, 2001 Ore. App. LEXIS 631
CourtCourt of Appeals of Oregon
DecidedMay 9, 2001
Docket98-06-38791; A107624
StatusPublished
Cited by4 cases

This text of 23 P.3d 430 (In re the Marriage of Albers) 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 Marriage of Albers, 23 P.3d 430, 174 Or. App. 243, 2001 Ore. App. LEXIS 631 (Or. Ct. App. 2001).

Opinion

WOLLHEIM, J.

Husband appeals a dissolution judgment, assigning error to the trial court’s division of marital property. On de novo review, ORS 19.415(3), we reverse and remand.1

Wife and husband were married in 1986 and had lived together for the two years immediately preceding the marriage. They have two children, and wife cares for a third child from a previous relationship. While wife and husband were living together, wife received an inheritance of money and a one-third interest in a farm. Wife’s mother, Nadean, and her brother, Charles, inherited the other two-thirds interest in the property. Wife and husband lived in Portland until 1989, when they moved to La Grande to live with Nadean on the inherited property. In La Grande, wife was a homemaker and helped Nadean and Charles manage leases on the farm land. Husband attended college and worked part-time jobs. By 1995, husband had obtained a bachelor’s degree in art, a master’s degree in teacher education and a teaching certificate. Wife has a high school education. Wife filed for dissolution of the marriage in 1998.

In 1977, wife’s great aunt, Stella Grimmett, made wife, Nadean, Charles, and Shriners Hospital equal residuary legatees in her estate. Grimmett died in 1984. Wife, Nadean, and Charles eventually bought out Shriners Hospital’s interest in the real property. Wife received inheritance money in 1984 and in 1985. In 1986, several days before her marriage to husband, wife received an undivided one-third interest in the La Grande farm.

Wife initially deposited her inheritance money into investment accounts. In 1985, she withdrew some money to use as a down payment on a house in Portland. When wife and husband sold the Portland house, the income generated from that sale was deposited in a new investment account. Eventually, all of wife’s inheritance money was invested into three separate accounts. Husband’s name was added to two of the accounts; one remained in wife’s name only. Husband never directly contributed money to the funds of any of the [246]*246accounts. The parties used interest income and principal from all the investment accounts throughout the marriage for family expenses. At the time of dissolution, each account had decreased in value.

In addition to money, wife inherited a one-third interest in' a farm. The farm, approximately 560 acres in size and valued at $560,000, contained a dwelling, several outbuildings, and farm land. In 1994, wife, Nadean, and Charles sold approximately 160 acres of farm land to the Zubricks and approximately 240 acres to the Kohrs. The latter sale was partially financed by the sellers and produces a monthly income. In 1995, wife and Nadean bought out Charles’s interest in the remaining 157 acres and buildings using, in part, the Kohrs’s monthly receivable to pay Charles.2 Husband’s name did not appear on any real estate documents for the farm until the 1995 contract to purchase Charles’s interest. Wife and husband continued to live in the dwelling located on the farm until they separated.

In 1999, the trial court issued a judgment of dissolution. That judgment determined child custody and visitation issues, ordered husband to pay child support, and divided the marital property and debts.3 The trial court concluded that husband was not entitled to any interest in the farm property nor in the investment account under wife’s name. The trial court equally divided the two investment accounts under both wife’s and husband’s names, as well as the personal property. Husband appeals the property division, arguing that the trial court erred when it determined the ownership and division of wife’s inheritance, or, in the alternative, that the trial court erred when it failed to equally divide the appreciation during the marriage of wife’s inheritance.

[247]*247In marital dissolution cases, marital assets are subject to a statutory rebuttable presumption of equal contribution and ownership. ORS 107.105(1)(f).4 Stice and Stice, 308 Or 316, 325, 779 P2d 1020 (1989). The presumption of equal contribution also applies when one spouse acquires property by gift or inheritance during a marriage. Pierson and Pierson, 294 Or 117, 122, 653 P2d 1258 (1982). A spouse may rebut the presumption by demonstrating “that the property was acquired by one spouse uninfluenced directly or indirectly by the other spouse.” Stice, 308 Or at 325-26. However, ORS 107.105(1)(f) ultimately authorizes and requires courts to distribute all property of the spouses “as may be just and proper in all the circumstances” regardless of whether or not the statutory presumption of equal contribution has been rebutted. Consequently, even though courts generally divide marital assets on as equal a basis as possible, in appropriate instances, an unequal property division may nevertheless be just and proper. Richardson and Richardson, 307 Or 370, 379-82, 769 P2d 179 (1989).

We turn to the facts here to determine whether wife’s inheritance is subject to the presumption of equal contribution since it was acquired before the marriage. In some circumstances, the presumption of equal contribution applies to periods before marriage when the parties cohabited and commingled their assets. Troffo and Troffo, 151 Or App 741, 746-47, 951 P2d 197 (1997). Here, wife and husband were cohabitating for nearly two years before they were married. During that period, they shared a joint bank account from which they paid bills and shared other living expenses. Wife and husband commingled their assets and jointly managed their personal and economic affairs in a manner consistent with a marital relationship. Also during that period, wife received her inheritance. We therefore conclude that, under [248]*248those circumstances, wife’s inheritance is subject to the presumption of equal contribution.

We next examine whether wife has rebutted the presumption of husband’s equal contribution to her inheritance. Where evidence demonstrates that one spouse’s inheritance was acquired without contribution by the other spouse, the presumption of equal contribution is rebutted. Becker and Becker, 122 Or App 567, 570, 858 P2d 480, rev den 318 Or 60 (1993). Additional factors are also relevant to our analysis at this step. First, even though an asset is brought to a marriage by one spouse and is held independently of the other, the other spouse may be entitled to an equal share of the appreciation in value, during the marriage, of that asset. See Massee and Massee, 328 Or 195, 206, 970 P2d 1203 (1999) (appreciation during the marriage of separately held property is a marital asset). Second, the extent to which the parties commingle their assets bears upon whether an asset is treated as separate or joint, i.e., a spouse may rebut the presumption of equal contribution for a marital asset, but if that spouse later commingles that asset, it will no longer be treated as separate. Hering and Hering, 84 Or App 360, 363, 733 P2d 956, rev den 303 Or 534 (1987).

The record indicates that Grimmett made her will in 1977, long before wife met husband. Furthermore, testimony revealed that Grimmett never met husband.

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Bluebook (online)
23 P.3d 430, 174 Or. App. 243, 2001 Ore. App. LEXIS 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-albers-orctapp-2001.