In re the Marriage of Arand

49 P.3d 799, 182 Or. App. 368, 2002 Ore. App. LEXIS 1014
CourtCourt of Appeals of Oregon
DecidedJuly 3, 2002
Docket15-99-09821; A109832
StatusPublished
Cited by8 cases

This text of 49 P.3d 799 (In re the Marriage of Arand) 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 Arand, 49 P.3d 799, 182 Or. App. 368, 2002 Ore. App. LEXIS 1014 (Or. Ct. App. 2002).

Opinion

SCHUMAN, J.

Wife appeals from a judgment that dissolved a 14-year marriage, awarded her custody of the parties’ four children along with spousal and child support, and equally divided the equity in the parties’ real property by awarding it to wife subject to an equalizing lien in favor of husband, enforcement of which was stayed for two years. Wife assigns error to three aspects of the trial court’s dissolution judgment: its calculation of husband’s gross income (and consequent calculation of child support), the length of time it stayed enforcement of husband’s lien, and the amount and duration of spousal support. On de novo review, ORS 19.415(3), we modify the judgment.

The parties were married in 1985. They separated in May 1999, and the marriage was dissolved in March 2000. At the time of the dissolution, wife and husband were both 34 years old and their four children were 13,11, 9, and 5. During the first year of their marriage, wife worked as a nanny while husband went to school. That arrangement ended with the birth of their first child, at which time the parties agreed that wife would be a stay-at-home mother. She did not work outside the home again until a few months before the dissolution, at which time she earned $7.54 per hour working between 25 and 28 hours a week as a school bus driver and substitute teacher. The trial court found that her earning capacity at the time of dissolution was minimum wage, $1,125 per month. Wife hopes to attend college so she can improve her earning capacity. Husband, who has one year of college, worked primarily at logging and in construction during the marriage. At the time of the dissolution, he was in good health and worked as a hook tender for Kelly Brothers logging. Husband testified that his gross earnings were $22,743.13 for 1998, $30,632.00 for 1997, and $24,594.00 for 1996. In addition to his regular monthly income, he received $10 a day for driving a “crummy.”1 During the 60 days preceding trial, husband drove the crummy virtually every work [371]*371day except for a two-week period. The parties stipulated that husband’s gross monthly income, not including what he earned from driving, was $2,584.57 and that his net income was $2,014.92. The trial court did not take the driving income into account in calculating spousal or child support.

The only significant marital asset is a 1,200 square foot home, purchased more than 10 years before the dissolution. It is located near the schools three of the children attend and three houses away from their grandmother. The house has been appraised at $108,000. Approximately $66,841 is still owed on it, leaving an equity of about $41,000. Wife testified that, because husband was late in making mortgage payments, she will not qualify for new loans if forced to sell her home.

On appeal, wife asks that we mandate inclusion of husband’s crummy-driving income in the calculation of his gross income; that we stay enforcement of husband’s lien against the home for five years instead of the two-year stay imposed by the trial court, thereby enabling her to avoid selling the family home; and that we increase the amount and duration of spousal support to $600 per month for seven years.

We begin with the question of husband’s crummy-driving income. In calculating child support, the trial court must use the formula established by OAR 137-050-0330. ORS 25.280 (formula establishes presumptively correct amount of child support); Rossi and Rossi, 128 Or App 536, 543, 876 P2d 820 (1994). That formula uses an obligor’s “gross income,” which includes “income from any source,” including, but not limited to, salaries and wages. OAR 137-050-0340; Watson and Watson, 107 Or App 416, 419, 812 P2d 429 (1991). The crummy-driving income clearly comes under the rubric of wages. Waterman and Waterman, 158 Or App 267, 272, 974 P2d 256 (1999) (gross income includes all wages received on a regular basis, including regularly received overtime pay).

[372]*372Husband testified that, in the 60 days preceding trial, he received payment of $10 a day for driving a crummy virtually every work day except for two weeks. We find on de novo review of the record that husband’s gross income should be calculated to include an additional $200 per month ($10 per day for an average of approximately 20 days per month). That addition brings his gross monthly income to $2,784.57. Because the trial court used a different amount to calculate child support, we remand to the trial court for recalculation. Krutsinger and Krutsinger, 140 Or App 215, 219, 914 P2d 1096 (1996).

We turn next to husband’s lien on the family home in the amount of approximately $20,000, roughly half of its equity. Husband suggested at trial that he wanted that money as soon as possible so that he could buy a house near the children. However, we conclude from the record that this objective should not be achieved by forcing wife to pay the equalizing judgment to husband in just two years. In order to become independent, wife needs to attend school for at least four years, and, during that period, she will make at best minimum wage. In addition, we find from the record that, because of wife’s current financial condition and husband’s failure to make timely mortgage payments, wife could not easily obtain a second mortgage. She would therefore have to sell the house and could not obtain housing in the area near the children’s schools and their grandmother, a convenient source of inexpensive childcare.

This court must consider the needs of the children in deciding just and proper terms of dissolution. Davis and Davis, 146 Or App 507, 510, 934 P2d 451, rev den 326 Or 57 (1997). Economic realities figure in that determination as well. Barlow and Barlow, 111 Or App 179, 181-82, 826 P2d 18, rev den 313 Or 299 (1992). We find that there is evidence in the record that the children’s best interest is served by keeping them in their present neighborhood and that, because of mother’s somewhat difficult economic circumstances, mother and the children would be unable to find affordable housing elsewhere in the area if the house were sold. Considering those circumstances, it was error for the trial court to allow mother only two years to pay the equalizing judgment to husband. Davis, 146 Or App at 510-11. On [373]*373remand, the court should modify the judgment to allow wife five years to satisfy the equalizing judgment.

Wife’s next assignment of error contests the amount of spousal support awarded below, $100 per month for two years. Spousal support in Oregon is governed by statute and case law. ORS 107.105 (1997)2 provides, in part:

“(1) Whenever the court grants a decree of marital annulment, dissolution or separation, it has power further to decree as follows:
* * * *
“(d) For the support of a party, such amount of money for such period of time as it may be just and equitable for the other party to contribute, such contribution to be in gross, in installments or both, as the court may order. * * * In making such support order, the court shall consider the following:

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Cite This Page — Counsel Stack

Bluebook (online)
49 P.3d 799, 182 Or. App. 368, 2002 Ore. App. LEXIS 1014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-arand-orctapp-2002.