In re the Marriage of Albrich

987 P.2d 542, 162 Or. App. 30, 1999 Ore. App. LEXIS 1277
CourtCourt of Appeals of Oregon
DecidedJuly 21, 1999
DocketDR8801223; CA A102229
StatusPublished
Cited by18 cases

This text of 987 P.2d 542 (In re the Marriage of Albrich) 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 Albrich, 987 P.2d 542, 162 Or. App. 30, 1999 Ore. App. LEXIS 1277 (Or. Ct. App. 1999).

Opinion

DE MUNIZ, P. J.

Wife appeals the judgment reducing her spousal support from $5,000 to $2,000 per month. On de novo review, ORS 19.415(3), we affirm.

Because this case concerns only a modification of spousal support, it centers on whether there has been “a substantial change in economic circumstances of a party * * * sufficient for the court to reconsider its order of support.” Or Laws 1997, ch 746, § 116(2)(a), compiled as note after ORS 107.135 (1997).1 Accordingly, in reciting the facts, we focus principally on the circumstances that inform that inquiry. In 1989, when the parties ended their 23-year marriage, husband, 48 years old, was employed as a radiation oncologist and earned $19,130 per month; wife, 47 years old, did not work outside the home. They have three children, who were 23, 17 and 15 at the time of the dissolution trial. In the dissolution judgment, the trial court awarded wife spousal support in the amount of $6,000 per month for five years and $5,000 per month thereafter.2 The court also divided husband’s pension and profit sharing plan equally between the parties, awarding each party $308,000.

Presently, husband no longer works as an oncologist because he suffers from a neurological disorder that causes uncontrollable neck spasms and cognitive problems that prevent him from effectively working with patients. He has retired from the practice of medicine and receives $7,500 in monthly income from a disability insurance benefit. Based on his retirement from his medicad practice and the attendant decrease in monthly income, husband sought a modification of spousal support, contending that that reduction in income [33]*33constituted a “substantial change in economic circumstances” sufficient to justify a reduction in his support obligation. The trial court agreed, entering a judgment of modification reducing wife’s permanent support award to $2,000 per month. The trial court reduced the amount of support based on a ratio equal to the percentage decrease in husband’s monthly income.

On appeal, and as she did below, wife does not dispute the legitimacy of husband’s disability; rather, wife urges that, in determining whether husband’s economic circumstance had changed substantially, the court erroneously failed to consider husband’s retirement account, and other investment accounts jointly held by husband and his new wife, as potential income opportunities when it concluded that husband’s economic circumstance had changed.3 Wife urges that the plain language of Oregon Laws 1997, chapter 746, section 116(3), requires that the court do so. That law provides:

“(3) In considering * * * whether a change in circumstances exists sufficient for the court to reconsider spousal or child support provisions of a decree, the following provisions apply:
“(a) The court shall consider income opportunities and benefits of the respective parties from all sources, including but not limited to:
“(A) The reasonable opportunity of each party * * * to acquire future income and assets.
“(B) Retirement benefits available to the obligor and to the obligee[.]”

[34]*34Husband argues that it would be unfair to adopt wife’s position for two reasons. First, as to husband’s retirement account that was part of the original property division, husband urges that, if wife’s position is adopted, then it would result in an unlawful modification of that property division. That is so, husband contends, because the source of a portion of those investment accounts comes from husband’s half of his pension and profit sharing plan, which was divided in the dissolution judgment. Thus, husband argues, if spousal support is maintained at its current level based on his unrealized gains from those accounts, then he would, in effect, be forced to liquidate his assets and that forced liquidation, he contends, would constitute an unlawful modification of the original property distribution.4 See Prime v. Prime, 172 Or 34, 49-50, 139 P2d 550 (1943) (property divisions are not subject to subsequent modifications, irrespective of any future changes in the financial condition of either party). As to the accounts husband holds jointly with his new wife, husband argues that such a forced liquidation would be unfair to husband’s new wife because it would require, in effect, that she use her income to support husband’s former wife.

As explained below, we disagree with husband’s analysis as it relates to what the court may consider because the controlling statutory provisions expressly render husband’s retirement benefits, as well as his income from the jointly held accounts, lawful considerations. However, as we will explain, we agree that, in this instance, those assets are not a sufficient basis to ignore the substantial decrease in husband’s monthly income due to his impairment.

In this support modification proceeding, the trial court’s authority is governed by Oregon Laws 1997, chapter 746, section 116. Generally, that law limits the court’s power to a review of the amount of the support award and dictates that a modification is proper only where there has been substantial change either in the obligor’s ability to pay or the obligee’s need, “sufficient for the court to reconsider its order of support.” Or Laws 1997, ch 746, § 116(2)(a).

[35]*35Because section 116 governs the modification inquiry here, we construe that law to determine what factors the court may consider in analyzing the “change of circumstances” question. In construing a statute, we first examine its text and context because a statute’s wording “is the best evidence of the legislature’s intent.” PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). As relevant here, context includes other provisions of the same statute and other related statutes. Id. at 610-11. If, after examining the text and context of a statute, the legislature’s intent is clear, then our analysis ends. Id.

Turning to the relevant text, we begin with the general provision governing the court’s review authority, which is found in subsection (3)(a):

“The court shall consider income opportunities and benefits of the respective parties from all sources[.]”

Two important textual clues are found in that provision: the word “opportunities” and the phrase “all sources.” With respect to the former, “opportunities” refers to a condition that has not yet come to pass but could occur under the prevailing circumstances. Webster’s Third New Int’l Dictionary, 1385 (unabridged ed 1993). As to the latter, “all sources” plainly implies no limits. It therefore follows that subsection (3)(a), when read in a commonsense manner, compels an expansive review of a party’s ability to pay and of a party’s need. Significantly, subsection (3)(a) does not restrict the court’s consideration to income that either party is presently receiving and makes no distinction between income opportunities derived from previously divided marital property and those opportunities derived elsewhere. Put simply, under section 116(3)(a), the breadth of the court’s consideration

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Callen and Callen
479 P.3d 313 (Court of Appeals of Oregon, 2020)
Minckler and Minckler
474 P.3d 425 (Court of Appeals of Oregon, 2020)
In re the Marriage of Vanlaningham
380 P.3d 1043 (Court of Appeals of Oregon, 2016)
In re the Marriage of Harless
366 P.3d 402 (Court of Appeals of Oregon, 2016)
In Re Marriage of Spillane
275 P.3d 974 (Court of Appeals of Oregon, 2012)
In Re the Marriage of Frost
260 P.3d 570 (Court of Appeals of Oregon, 2011)
In the Matter of Barron
246 P.3d 500 (Court of Appeals of Oregon, 2011)
In Re the Marriage of Barron
246 P.3d 500 (Court of Appeals of Oregon, 2011)
In Re the Marriage of Sather
243 P.3d 76 (Court of Appeals of Oregon, 2010)
In the Matter of Marriage of Reaves
236 P.3d 803 (Court of Appeals of Oregon, 2010)
In Re the Marraige of Morales
214 P.3d 81 (Court of Appeals of Oregon, 2009)
In Re the Marriage of Gibson
174 P.3d 1066 (Court of Appeals of Oregon, 2007)
In re the Marriage of Harp
167 P.3d 457 (Court of Appeals of Oregon, 2007)
Matter of Marriage of Crook
110 P.3d 648 (Court of Appeals of Oregon, 2005)
In re the Marriage of Hutchinson
69 P.3d 815 (Court of Appeals of Oregon, 2003)
In re the Marriage of McArdle
64 P.3d 1178 (Court of Appeals of Oregon, 2003)
Matter of Marriage of Wilson
63 P.3d 1244 (Court of Appeals of Oregon, 2003)
In re the Marriage of Halsey
41 P.3d 1119 (Court of Appeals of Oregon, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
987 P.2d 542, 162 Or. App. 30, 1999 Ore. App. LEXIS 1277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-albrich-orctapp-1999.