In re the Marriage of Bates

699 P.2d 678, 73 Or. App. 530
CourtCourt of Appeals of Oregon
DecidedMay 15, 1985
Docket37865; CA A30344
StatusPublished
Cited by2 cases

This text of 699 P.2d 678 (In re the Marriage of Bates) 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 Bates, 699 P.2d 678, 73 Or. App. 530 (Or. Ct. App. 1985).

Opinions

RICHARDSON, J.

On the basis of wife’s remarriage, husband seeks modification of their dissolution decree to terminate his spousal support obligation of $600 per month plus 10 percent of any bonuses received. The trial court eliminated the portion of the decree concerning the bonuses but retained the requirement that husband pay wife $600 per month. Husband appeals. We modify the decree to eliminate the $600 per month spousal support obligation.

The parties were married for almost 26 years before their November, 1982, dissolution. At the time of trial, husband was 46 and wife was 44. The parties had four children. Three were emancipated, and one son was a minor. Before their separation, the parties had begun proceedings to adopt a 12-year-old foreign-born girl. The dissolution proceedings were begun by the parties before the adoption was completed. At wife’s urging, husband agreed to complete the adoption, and wife agreed to assume sole responsiblity for the adopted daughter. Wife was awarded custody of the minor son and the adopted daughter.

For the first four years of the marriage, wife worked as a typist while husband attended college. She has no formal education beyond high school, except for one semester of an office practice class at a community college. After husband graduated from college, she quit working to raise the family. Husband began working for a mobile home manufacturer after graduation, and he was eventually promoted to general manager. Wife later worked for one year as a bookkeeper for a stationery store and, at the time of the dissolution trial in 1982, had worked as a bookkeeper for a law firm since October, 1980.

During the later years of their marriage, before their separation, the parties enjoyed an affluent lifestyle. They had substantial real estate holdings, including several residential rental properties and a beach house where they often vacationed. Their lifestyle was possible largely because of the substantial bonuses husband received from his employment. His base salary was approximately $50,000. He earned bonuses that often equaled or exceeded the base salary. For example, in 1977 his total gross income was $124,000. However, because of an economic downturn in the mobile home [533]*533industry, he earned steadily less after 1977 and, in 1982, the total family income was $62,641. Husband testified at the dissolution trial that he expected no further bonuses after 1981. He confirmed that projection at the hearing on the motion to modify the decree. At the time of the modification hearing his base salary was $55,000 per year.

At the time of the dissolution trial, wife was working part time earning $5.50 per hour. She testified that she intended to begin working full time. The trial court found she was employable at a gross annual salary of $10,000 to $12,000. She quit her job when she remarried in order to stay home with the adopted daughter.

The decree of dissolution awarded wife two duplexes and a single family rental house. At that time, the three rental properties generated approximately $264 per month net income. Wife testified at the modification hearing that she had no positive cash flow from the rentals because some tenants had moved and she had had to spend approximately $1,000 for repairs. Husband received a single family residence, which he rents, and the beach house, which is rented on an irregular basis. The record does not disclose the rental income that he receives.

Pursuant to the decree, the family residence was sold and each party received $43,000 from the sale proceeds. Consistent with her testimony at the dissolution trial, wife utilized a portion of the sale proceeds to purchase a house with her new husband. She supplied $30,000, and he provided $20,000 of the down payment on a purchase price of $92,000.

Wife was also awarded $20,000 in certificates of deposit which generate $160 per month interest income. Husband was awarded a $10,000 certificate of deposit, from which he receives approximately $70 per month interest.

Husband’s present employer does not provide him a retirement plan. However, a former owner of the business did. He has a paid-up, vested plan with an account balance of approximately $27,000. There is no evidence in the record concerning the contours of the retirement plan, such as when he can receive retirement benefits or how much he will receive.

During the dissolution trial, the court stated:

[534]*534“* * * [I] am going to award the [Husband] all of his interest in the retirement program. I am doing that for two reasons, again. First reason is to balance off some of the inequity as far as the household goods and furnishings are concerned. But in addition to that, I am going to award permanent spousal support. And it’s reasonable to assume that in the years in the future at least that the payment of that spousal support if it continues at that time and he receives retirement and will be obligated, that will be paid from the retirement. * * *”

It is clear that the court was utilizing the retirement account in some measure to equalize the property division. Wife was awarded the furnishings of the family home, which had a substantial value. The court awarded wife $600 per month spousal support, plus ten percent of any bonuses husband received.

Husband moved to modify the decree to transfer custody of the minor son to him, to terminate his child support obligation, to require wife to pay child support and to terminate the spousal support obligation. The court changed custody of the minor son and ordered wife to pay $100 per month child support. The court eliminated the provision requiring husband to pay ten percent of his bonuses to wife but left intact the $600 per month support.

At the time of the October, 1983, modification hearing, both parties had remarried. Wife had married a state policeman, whose annual gross income exceeded $28,000, and had quit work to raise the adopted daughter. Her new husband had no children living with him but pays $450 per month for spousal and child support. Husband had remarried, and his new wife was physically unable to work. He was earning $55,000 per year but had received no bonuses since the dissolution and, as indicated, he predicted that there would be no bonuses in the foreseeable future, due to the continuing recession in the mobile home industry.

In determining whether a spousal support award should be terminated upon remarriage of the dependent spouse, we have utilized the basic analysis set forth in Nelson v. Nelson, 181 Or 494, 499-500, 182 P2d 416 (1947):

“The remarriage of a divorced wife does not ipso facto cancel the obligation to pay the installments of alimony [535]*535awarded her by the decree. * * * Nevertheless, it is such a change in the situation of the parties as to furnish the court a cogent reason for modifying the decree. * * * It would not be good public policy to compel a divorced husband to support his former wife after she had remarried, except under extraordinary conditions which she should be required to prove. * * *” (Citations omitted.)

The Supreme Court has neither overruled nor altered the basic policy statement in Nelson. In Grove and Grove, 280 Or 341, 571 P2d 477, modified 280 Or 769, 572 P2d 1320 (1977), the court held that remarriage of the dependent spouse does not automatically terminate the spousal support obligation. The court said:

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Related

In re the Marriage of Hall
738 P.2d 218 (Court of Appeals of Oregon, 1987)
In re the Marriage of Bates
733 P.2d 1363 (Oregon Supreme Court, 1987)

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Bluebook (online)
699 P.2d 678, 73 Or. App. 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-bates-orctapp-1985.