In re the Marriage of Bounds

60 P.3d 1090, 185 Or. App. 619, 2003 Ore. App. LEXIS 23
CourtCourt of Appeals of Oregon
DecidedJanuary 8, 2003
Docket15-99-08722; A111333
StatusPublished
Cited by4 cases

This text of 60 P.3d 1090 (In re the Marriage of Bounds) 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 Bounds, 60 P.3d 1090, 185 Or. App. 619, 2003 Ore. App. LEXIS 23 (Or. Ct. App. 2003).

Opinion

WOLLHEIM, J.

Husband appeals from a judgment dissolving his 20-year marriage. He assigns error to, among other things, the trial court’s award of spousal support to wife. He argues that the trial court erred by failing to take into account the investment income wife would earn from the property division and by attributing to him an annual income of $50,000. On de novo review, ORS 19.415(3) and ORS 107.405, we affirm.

Husband and wife were married in 1978. At the time of trial, husband was 49 years old and wife was 46 years old. The parties had three children, two of whom are still minors. Wife was awarded custody of the children, an award that husband does not contest.

Wife has a high school education and, beginning with the birth of the parties’ first child, initially did not work during the marriage. She returned to work in 1985 as an educational assistant and speech and language assistant at a local school district. At the time of trial, she earned $9.60 per hour as an educational assistant and $10.19 per hour as a speech and language assistant. She works nearly full time but does not work during school holidays or during the summer. In 1999, wife earned $9,745.

Husband has a high school education and, for the past 20 years, has worked in construction. In 1989, husband opened his own construction business, performing custom excavation, concrete, building, and underground tank removal. Husband’s income has varied. In 1995, he earned $103,542, and his income steadily increased to its highest level of $230,157 in 1998. In the last seven months of 1999, husband earned $69,961.

Husband, however, believed that his income would decrease in coming years for two reasons. First, underground tank removal work, the bulk of husband’s business, was decreasing. Second, husband was concerned that his income would decline due to an eye disease that may eventually cause blindness. He did, in fact, lose sight in his left eye in 1986 and, for the past 10 years, he has been receiving weekly [622]*622or biweekly treatments in order to maintain the vision in his right eye. Husband’s ophthalmologist, while noting that there is a possibility that husband may completely lose his eyesight, also noted that husband’s vision has not worsened since 1992.

Husband’s ophthalmologist recommended that husband be evaluated for an experimental eye surgery that would, in the best of circumstances, help husband regain some eyesight in his left eye and prevent any loss of sight in his right. Husband was evaluated by Dr. Goldberg at the UCLA School of Medicine, and, at the time of trial, husband was also considering a second evaluation at the University of Utah. Goldberg recommended surgery, beginning with husband’s left eye. The procedure would consist of five or six surgeries per eye, with two to three months between surgeries and a total of two years of surgery and recuperation for each eye. Each surgery would entail a recuperation period lasting a couple of weeks after which husband would be able to return to work. Although husband’s insurance would pay for some of the costs of surgery, husband estimates that his out-of-pocket medical expenses would be $10,000, not including the cost of traveling to California or Utah for the surgery. Husband has decided that he will proceed with the surgery. During the rehabilitation period, husband’s ophthalmologist recommended, as he has for many years, that husband not work around dirt and dust.

During the marriage, the parties lived on a 13-acre parcel of farmland within Eugene’s urban growth boundary. There were two dwellings on the property, and the parties lived in one. Wife, for the most part, managed the household finances. The parties acquired cars and equipment for husband’s business, in addition to various retirement accounts. At trial, the parties stipulated to a complete property division. Pursuant to that stipulation, husband received the 13-acre parcel of farmland, several retirement accounts, all his business property and equipment, and approximately $107,000 in cash. Wife received her PERS retirement accounts, various items of furniture and personal property, and a $400,000 equalizing judgment.

[623]*623After stipulating to a property division, the only questions remaining were spousal and child support. Husband argued that spousal support should not be awarded because wife will ultimately be in a better financial position than husband because of the investment income from the $400,000 equalizing judgment. Husband also argued that his income will decrease if he decides to proceed with the surgery or if his eyesight declines. Wife countered that her equalizing judgment would be reduced after she purchased a house. The court determined that wife’s annual income was $13,692 and that husband’s annual income was $50,000, with the exception of the two-year period of time when husband would have eye surgeries. The court set his income during that time at $30,000 a year. The trial court ultimately awarded wife spousal support as follows: $1,400 per month for five months; $500 per month for 27 months; and, after that period of time, $1,400 per month indefinitely. The 27-month period of time where husband was ordered to pay only $500 a month represented approximately the two-year period of time during which husband would have eye surgeries and his income would decrease.

Husband appeals, arguing that the trial court erred in setting spousal support.1 Husband argues, as he did below, that the trial court erred in failing to take into account the fact that wife can invest her cash equalizing judgment and receive significant income and that husband’s income will be less than what the trial court set because of his potential surgery and eye condition. With those considerations properly taken into account, husband contends that wife will actually have more income available to her than husband will have and, as a result, wife has no need for spousal support. Wife, in turn, maintains that she has to spend a bulk of her equalizing judgment to purchase a home and that the amount of income attributed to husband was well supported by the evidence.

In awarding spousal support, we must determine an amount of support that is “just and equitable” under the circumstances. ORS 107.105(l)(d) (1997), amended by Or Laws [624]*6241999, ch 587, § 1.2 The amount and duration are determined by the factors set forth in ORS 107.105(1)(d) (1997), including the length of the marriage, the age and health of the parties, the earning capacity of both parties, the number of dependents, and the standard of living established during the marriage. Our goal is to enable each party “to achieve an economic standard of living not overly disproportionate to that enjoyed during the marriage, to the extent that is possible.” ORS 107.105(1)(d)(M) (1997).

We first consider husband’s argument that an award of spousal support is precluded in light of the fact that wife received a lump sum cash award and will be able to earn investment income from that award.

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Cite This Page — Counsel Stack

Bluebook (online)
60 P.3d 1090, 185 Or. App. 619, 2003 Ore. App. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-bounds-orctapp-2003.