In re the Marriage of Becker

858 P.2d 480, 122 Or. App. 567, 1993 Ore. App. LEXIS 1419
CourtCourt of Appeals of Oregon
DecidedAugust 25, 1993
DocketD8905-63511; CA A70488
StatusPublished
Cited by8 cases

This text of 858 P.2d 480 (In re the Marriage of Becker) 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 Becker, 858 P.2d 480, 122 Or. App. 567, 1993 Ore. App. LEXIS 1419 (Or. Ct. App. 1993).

Opinion

DURHAM, J.

Wife appeals and husband cross-appeals the property division provisions of a dissolution judgment. We review de novo. ORS 19.125.

The marriage lasted 27 years. The parties separated in January, 1989. Husband is 53, and wife is 52. Husband, who retired just before trial, receives a pension of approximately $50,000 per year gross. Throughout most of the marriage, wife was a homemaker.

Wife has interests in seven trusts, all of them created before the marriage. Wife’s interest in the corpus of the “William W. Chapin Trust #1” vested in August, 1988. She segregated proceeds from the trust when they were distributed, which occurred after her separation from husband. Wife’s interest in the “William W. Chapin Trust #2” as an income beneficiary vested in August, 1988. The present value of her future income share is $192,381. Her income interest in the “Maude and Reginald B. Parsons Trust,” valued at $507,831, vested when her father died in July, 1989, after the parties had separated. She has a contingent interest in the corpus, worth $3,821,500, which will vest when her elderly aunt dies. The “Manufacturers Hanover Trust” terminated when her father died. Wife will receive about $200,000 when it is distributed. She also is an income beneficiary of the “Catherine Chapin Parsons Estate Trust.” That interest, valued at $404,761, vested in August, 1988. Finally, wife is a lifetime income beneficiary of the “William Wallace Chapin San Francisco Trust.” Her interest has a value of $192,381.

None of the settlors indicated an intent to benefit a future husband. Only the “Reginald Bemis Parsons 1949 Trust” (the 1949 Trust) provided a significant source of income during the marriage. Wife received from that trust $432,449 during the marriage, which she commingled with husband’s income.

The trial court valued wife’s interest in the 1949 Trust at $2,049,28s.1 In dividing the property, the court [570]*570awarded to wife most of her trust interest and to husband most of the marital assets, including the family home. It also awarded husband a judgment of $2,024,644, payable in 20 semi-annual installments of $50,000, with the balance due when the corpus of the Maude and Reginald B. Parsons Trust is distributed to wife. There is no interest imposed on the judgment, but if wife misses a payment, interest at nine percent per annum accrues on the entire remaining balance.

Wife assigns error to the court’s disposition of her trust interests. She argues that her trust interests are her separate property, not subject to the court’s dispositional authority. In the alternative, she contends that, even if husband were entitled to share in her interests, the amount awarded to husband is inequitable.

Assets acquired during a marriage are marital assets subject to disposition by the court on dissolution under ORS 107.105(1)(f). Stice and Stice, 308 Or 316, 325, 779 P2d 1020 (1989). ORS 107.105(1)0) creates a presumption that both parties contributed equally to the acquisition of assets received during the marriage, although that presumption can be rebutted by showing that one spouse acquired the property without the other spouse’s contribution. Wolhaupter-Heinzel and Heinzel, 108 Or App 514, 519, 816 P2d 672, rev den 312 Or 526 (1991). Some of wife’s interests did vest and wife did receive some income from the various trusts during the marriage. Accordingly, those were marital assets. With respect to those assets, however, we conclude that the presumption of equal contribution was rebutted, because the record does not demonstrate that husband contributed in any way to the acquisition of those assets, or that there was any intent to benefit him. Taylor and Taylor, 121 Or App 635, 639, 856 P2d 325 (1993).

Nonetheless, the court on dissolution may distribute ‘ ‘the real or personal property, or both, of either or both of the parties.” ORS 107.105(1)(f). As explained in Pierson and Pierson, 294 Or 117, 122, 653 P2d 1258 (1982):

“The term ‘real or personal property, or both, of either or both of the parties’ in the first sentence [of ORS 107.105(l)(f)] describes a larger class of property than the term ‘marital assets’ because it can include property owned prior to the marriage. The upshot is that property may be [571]*571subject to the authority of the court to divide property, yet not be a marital asset.”

According to Stice and Stice, supra, 308 Or at 326,

“Whether or not the statutory presumption of equality of contribution has been rebutted, ORS 107.105(l)(f) ultimately authorizes and requires courts to distribute any and all of the spouses’ property, including separate property, ‘as may be just and proper in all the circumstances.’ ” (Emphasis supplied.)

The pertinent question here is whether the court’s disposition of the parties’ assets is “just and proper in all the circumstances.” ORS 107.105(l)(f). We conclude that it is. The parties used wife’s income from the 1949 Trust to supplement husband’s income and intended to continue using it during their retirement. During the marriage, wife’s entitlement to her trust interests was never in doubt. They used husband’s salary and did not save for retirement in anticipation that wife’s trust receipts and husband’s pension would keep them financially secure during retirement. The judgment partially compensates husband for his reliance on wife’s assets for retirement. See Taylor and Taylor, supra, 121 Or App at 640; Stice and Stice, supra, 308 Or at 318; Richardson and Richardson, 307 Or 370, 382, 769 P2d 179 (1989); Pierson and Pierson, supra, 294 Or at 123.

Wife argues that a spendthrift provision2 prevented the court from attaching a judgment lien to her share of the 1949 Trust corpus. However, the judgment is not a lien on the trust corpus. It requires wife to pay $1,024,644 when the trustee distributes the corpus. That sum does not have to be paid from the trust corpus; the judgment establishes only a [572]*572time for payment. Husband received no interest in the trust itself.

Wife also argues that the interest provision on the $1,000,000 judgment constitutes a penalty. The corpus of the 1949 Trust is composed primarily of Bemis stock. She contends that, if the Bemis directors elect not to pay a dividend, she will not have sufficient funds to make her semi-annual payments, and the interest will become onerous. Wife has a history of failing to comply with court orders and, according to the record, the court wanted to give her an incentive to make the payments. Under the circumstances, the structure of the interest provision was within the court’s discretion.

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Bluebook (online)
858 P.2d 480, 122 Or. App. 567, 1993 Ore. App. LEXIS 1419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-becker-orctapp-1993.