In re the Marriage of Ashlock

62 P.3d 874, 186 Or. App. 212, 2003 Ore. App. LEXIS 119
CourtCourt of Appeals of Oregon
DecidedFebruary 5, 2003
DocketC000383DR; A115626
StatusPublished
Cited by3 cases

This text of 62 P.3d 874 (In re the Marriage of Ashlock) 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 Ashlock, 62 P.3d 874, 186 Or. App. 212, 2003 Ore. App. LEXIS 119 (Or. Ct. App. 2003).

Opinion

KISTLER, J.

Wife appeals from a dissolution judgment that, among other things, awarded her half the marital debt and none of a business that husband created during the marriage. She contends that the trial court impermissibly allowed husband to choose whether to give her stock or to pay her spousal support and that, if husband received the business, he should be responsible for the business-related debt. We modify the judgment to make husband responsible for the business-related debts but otherwise affirm.

Husband and wife married in 1978. At the time of the dissolution hearing, wife was 42 and husband was 44 years old. The parties have four children, three of whom are still minors. Wife was awarded custody of the children, an award that husband does not now contest. Wife worked on and off as a nurse during the marriage. She also worked for husband when he was operating his businesses. For his part, husband started or was involved with approximately 19 different business ventures during the course of the marriage. Only a few of those business ventures are relevant to this appeal. Husband and a person for whom husband was working at the time decided to finance and build a Street of Dreams custom home. Their intent was to sell the home upon its completion. Due to various financial problems, however, the project was put in jeopardy. As a result, husband’s parents ultimately purchased the home and, when it did not sell as planned, leased it to husband and wife. Husband continues to live in the home.

Husband’s most recent and current business is AtlasMall.com, a “multi-level marketing business.” The business tracks sales through the Visa credit card system in order to collect commissions from participating merchants, which are rebated in part to the credit card holders. Husband intended to capitalize the company through a private stock placement, establish a working cash flow, and then take the company public. Husband owns approximately 22 million shares of AtIasMalI.com.

As with many dot-com businesses, husband’s business suffered greatly when the market for Internet stocks [215]*215plummeted. AtlasMall.com experienced a lack of cash infusions that, in turn, caused financial difficulties for husband and wife. Husband’s parents loaned them a significant amount of money so that they could pay their housing and other living costs. Husband may have used some of those funds in his business as well. At trial, the court found that the loans from husband’s parents totaled $183,256. In addition, the parties accumulated nearly $75,000 of credit card debt.

Several of husband’s business associates also loaned husband money so that he could cover the operating costs of AtlasMall.com and his other expenses. One of his associates, Wayne Shafinit, loaned husband approximately $58,000 so that husband could pay the legal fees incurred in a lawsuit that challenged the business practices of husband’s companies. Husband also borrowed $400,000 from Brodear and Boudreau. Approximately $290,000 of this money was deposited into an account for Net Development, a business idea that husband developed but never implemented. Ostensibly, this money was for the operating costs of AtlasMall.com. However, some of the money, approximately $5,000, was used to pay personal expenses, such as housing and groceries. The rest of the money, or approximately $105,000, was used to repay an obligation that husband owed his parents. As explained below, however, the obligation to husband’s parents was actually used to satisfy part of a judgment stemming from another lawsuit arising out of husband’s businesses.

All told, at the time of the hearing, AtlasMall.com was approximately $750,000 in debt. At that time, the business was dormant, although husband was actively trying to revive it as well as one of the affiliates associated with AtlasMall.com. There was no source of revenue and very limited sales activity was occurring.

At trial, wife requested that she be awarded a substantial amount of spousal support, either periodically or as a lump sum payment, and that the debts incurred in the course of running the businesses be awarded to husband. She initially stated that she wanted none of the AtlasMall.com stock and, indeed, several people testified about the adverse effects [216]*216on the business if wife received a substantial portion of the company’s stock in the dissolution proceeding. In contrast, husband asked, among other things, that AtlasMall.com be awarded to him and that the marital debts be divided equally.

The trial court issued a letter opinion, finding that AtlasMall.com had no fair market value, although some business activities remained. It also found that husband had no income and that his earning capacity was difficult to discern because of “the ‘convoluted labyrinth’ of the corporations’ finances, the lack of reliable financial information, and [husband] generally making the determination of his earning capacity difficult for opposing counsel as well as the court.”

In dividing the parties’ assets, the court noted that it was equitable to divide the stock in AtlasMall.com equally. If, however, the stock were divided, there were concerns about the control of the corporation. Husband did not favor dividing control, and the court found that “[wife] is not particularly interested in having the stock[,]” which at that time had minimal or no value. The court accordingly proposed, as an alternative, giving wife spousal support for five years at the rate of $25 a month in lieu of the stock division and noted that “[a] substantial increase in the stocks’ value would be a change in circumstances justifying a review of the spousal support award.” Given the parties’ respective interest (or lack of it) in this issue, the court acceded to the husband’s preference for spousal support rather than a stock division.

The court turned finally to the marital debt. It determined that wife would be required to reimburse husband for half of his payments of the parties’ debts, up to a maximum of $634,876. Those debts included money owed for payroll taxes for the business as well as money owed to husband’s parents, Boudreau, Brodear, and Schaffiiit. The court also ordered that the parties each pay half of their $75,000 of credit card debt.

On appeal, wife assigns error to four of the trial court’s rulings. We address the first two rulings and affirm the remainder without discussion. In her first assignment of error, wife argues that the trial court erred in “giving the Husband the option to either divide the stock 50-50 or enter a [217]*217spousal support award in favor of Wife for five years at the rate of $25 per month in lieu of the stock division.” Although wife raises a number of arguments in support of this assignment of error, only one of them corresponds with the ruling to which she has assigned error. We address only that argument. See ORAP 5.45(4); State v. Brenner, 151 Or App 159, 164, 947 P2d 1139 (1997). Regarding that argument, wife contends that

“[t]he primary function of courts is to make decisions with regard to matters properly brought before them. * * * The court’s duty is to decide the case on the facts presented. The court, not [husband], had to determine whether wife should be awarded stock or spousal support in an appropriate amount. By delegating its decision-making responsibility to [h]usband, the court violated its judicial duty.”

Husband responds that no improper delegation occurred because the trial court retained authority to accept or reject the parties’ choices.

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Cite This Page — Counsel Stack

Bluebook (online)
62 P.3d 874, 186 Or. App. 212, 2003 Ore. App. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-ashlock-orctapp-2003.