In re the Marriage of Brush

377 P.3d 620, 279 Or. App. 25, 2016 Ore. App. LEXIS 791
CourtClackamas County Circuit Court, Oregon
DecidedJune 22, 2016
DocketDR09100365; A152239
StatusPublished
Cited by4 cases

This text of 377 P.3d 620 (In re the Marriage of Brush) is published on Counsel Stack Legal Research, covering Clackamas County Circuit Court, 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 Brush, 377 P.3d 620, 279 Or. App. 25, 2016 Ore. App. LEXIS 791 (Or. Super. Ct. 2016).

Opinion

ORTEGA, P. J.

Wife appeals a judgment of dissolution, challenging the trial court’s property division and its failure to award spousal support. In particular, she argues that the court should not have awarded husband $125,000 of the inheritance that she received from her father — either because the inheritance was not subject to the presumption of equal contribution under ORS 107.105(l)(f)(D) or because, if the presumption applied, she rebutted it. She also contends that the court erred in not awarding her spousal support because, at the time of dissolution, the parties had a significant income disparity and she was unable to meet her expenses without financial help from husband. We conclude that an amendment to ORS 107.105(l)(f), which was enacted during the 2011 legislative session and which removed separately held property acquired by inheritance from the presumption of equal contribution, became effective while the parties’ domestic relations proceeding was pending and, under the terms of the legislation, should have been applied by the trial court to the parties’ property division. Because the court applied the statute without regard to the amendment, we vacate and remand the property division for consideration under the correct statutory provision. Separately, we affirm the court’s denial of spousal support.

The relevant undisputed background facts are as follows. The parties married in 1982, had six children during the marriage, and separated in September 2009. At the time of the dissolution trial, wife was 47 years old and husband was 50 years old. In 2007, wife inherited from her father assets that were worth about $450,000 at the time of dissolution trial. As relevant to this appeal, her father’s will devised “the residue of my estate in equal shares to my two daughters.” Accordingly, the will did not mention husband. Wife kept the inheritance property separate from the marital estate, in part to protect it from husband’s creditors. At the time of trial, wife was earning $2,284 per month and husband was earning between $5,000 and $6,000 per month. During the course of the marriage, however, husband had engaged in a number of failed business ventures.

[28]*28Wife petitioned for dissolution in October 2009. The dissolution trial took place on four separate days between January and December 2011. The court announced its findings and judgment from the bench on December 14, 2011. As relevant to this appeal, the court determined that wife should pay husband a $125,000 equalizing judgment from her inheritance and that neither party should receive spousal support. The court entered a dissolution judgment reflecting its decision on July 23, 2012. The court vacated that judgment in November 2012 and entered a “corrected” dissolution judgment in April 2013. That corrected judgment, however, did not alter any terms of the judgment that are relevant on appeal.

On appeal, wife asserts that the trial court’s property division incorrectly awarded husband part of her inheritance. First, she contends that the trial court erred by concluding that wife’s inheritance was subject to the presumption of equal contribution under ORS 107.105(1)(f) (2011), amended by, Or Laws 2011, ch 306, § 1. She asserts that the court should have applied ORS 107.105(1)(f), which as amended effective January 1, 2012, removed separately held property acquired by inheritance from the presumption of equal contribution, and that it was error for the court to not apply the amended version of the statute. Second, and alternatively, she contends that even if the presumption of equal presumption is applicable to the parties’ proceeding, she presented evidence that successfully rebutted the presumption, and the court erred in concluding otherwise.

For necessary context, we begin by describing the legislature’s amendment of ORS 107.105(1)(f), the timing of the dissolution proceedings in this case, and the arguments wife made to the trial court regarding disposition of her inheritance.

When the parties’ dissolution trial began in January 2011, ORS 107.105(1)(f)(C) (2011) provided, in relevant part, that “there is a rebuttable presumption that both parties have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held.” Accordingly, wife asserted in her trial memorandum that, under the case law that existed as of January [29]*292011,1 she planned to rebut the presumption of equal contribution to acquisition of her inheritance with evidence that her father had not intended for husband to receive any part of the inheritance.

Meanwhile, during the 2011 legislative session, Senate Bill (SB) 386 (2011) was introduced to counteract our decision in Olesberg and Olesberg, 206 Or App 496, 136 P3d 1202 (2006), rev den, 342 Or 633 (2007). In Olesberg, we concluded that, in relation to the inheritance of one spouse,

“to rebut the presumption of equal contribution, it is not sufficient to show simply that the inheritance devolved only to husband and his siblings in equal shares. The fact that the mother’s estate was divided three ways among her children does not establish that she had no intention to benefit wife, her daughter-in-law of 25 years. If that evidence were sufficient to overcome the presumption of equal contribution, the presumption would not only be rendered meaningless, but it would also incorrectly place the burden on the nonrecipient spouse to rebut it.”

206 Or App at 503-04.

As introduced, SB 386 amended ORS 107.105(1)(f) (2011) so that separately held, gifted property was not subject to the presumption of equal contribution. The legislature passed SB 386 in May 2011 and the governor signed it in June 2011, with an effective date of January 1, 2012. Or Laws 2011, ch 306, § 1. As amended, ORS 107.105(1)(f)(D) provided that “[p]roperty acquired by gift to one party during the marriage and separately held by that party on a continuing basis from the time of receipt is not subject to a presumption of equal contribution.”2 SB 386 also provided that the amendments to ORS 107.105 “apply to domestic [30]*30relations proceedings pending or commenced on or after the effective date of this 2011 Act.” Or Laws 2011, ch 306, § 2 (emphasis added).

In December 2011, near the end of the dissolution trial, wife provided the court with a copy of SB 386 and argued:

“The Oregon legislature, in this past legislative session, addressed the issue of inheritances.

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Related

Von Radics and Von Radics
Court of Appeals of Oregon, 2026
Mora and Mora
341 Or. App. 96 (Court of Appeals of Oregon, 2025)
Brush and Brush
509 P.3d 124 (Court of Appeals of Oregon, 2022)
In re Schwindt
414 P.3d 859 (Court of Appeals of Oregon, 2018)
In re the Marriage of Hughes-Kuda
399 P.3d 478 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
377 P.3d 620, 279 Or. App. 25, 2016 Ore. App. LEXIS 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-brush-orccclackamas-2016.