In re the Marriage of Carleton

366 P.3d 365, 275 Or. App. 860, 2015 Ore. App. LEXIS 1601
CourtCourt of Appeals of Oregon
DecidedDecember 30, 2015
Docket1000803CV; A154079
StatusPublished
Cited by3 cases

This text of 366 P.3d 365 (In re the Marriage of Carleton) 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 Carleton, 366 P.3d 365, 275 Or. App. 860, 2015 Ore. App. LEXIS 1601 (Or. Ct. App. 2015).

Opinion

NAKAMOTO, J.

In this dissolution of marriage action, the trial court awarded $1,002 in monthly child support to wife and denied wife’s request for an award of spousal support. Wife appeals the trial court’s general judgment of dissolution, assigning error to the trial court’s failure to (1) include the accelerated depreciation expensed by husband’s partnership in determining husband’s “actual income” for purposes of calculating child support, as required by a provision in the Oregon Child Support Guidelines, and (2) award spousal support to wife as a result of the trial court’s erroneous determination of husband’s income. In short, wife argues that husband’s “actual income” consisted of “one-third of partnership income including all accelerated depreciation.” In response, husband argues that the trial court followed the guidelines, the court’s findings are supported by the evidence, and the trial court did not abuse its discretion in denying wife’s request for spousal support. We conclude that the trial court did not err in calculating husband’s actual income, because it applied the formula in the guidelines for determining husband’s child support obligation. In view of our resolution of the first assignment of error, we reject wife’s second assignment as well. Accordingly, we affirm the dissolution judgment.

At the outset, we address the scope of our review. Wife does not seek de novo review, and, perceiving no reason to exercise our discretion to review the facts de novo under ORS 19.415(3)(b), we decline to do that. Accordingly, “we are bound by the trial court’s express and implicit factual findings if they are supported by any evidence in the record.” Andersen and Andersen, 258 Or App 568, 570, 310 P3d 1171 (2013) (internal quotation marks omitted). Child support calculations are governed by the guidelines, OAR 137-050-0700 to 137-050-0765. Whether a trial court has complied with the guidelines is a question of law, which we review for errors of law. McMurchie and McMurchie, 256 Or App 712, 721, 304 P3d 751 (2013); see also Gilmore and Ambrose, 258 Or App 747, 748, 311 P3d 970 (2013) (when we do not review de novo in a child support case, “we review the trial court’s decision for legal error and state the facts consistently with those found by the trial court to the extent [862]*862that there is evidence to support them” (internal quotation marks omitted)).

After the 2012 dissolution trial, the court issued a letter opinion. We take the facts relevant to the award of child support and denial of spousal support — facts that the parties do not challenge on appeal — from that opinion, supplemented as necessary with uncontroverted information from the record.

Wife and husband were married for 27 years and had three children together. Wife petitioned for dissolution, seeking, among other things, child support in accordance with the guidelines and “transitional spousal support, compensatory spousal support, and spousal maintenance, in a reasonable amount, indefinitely.” After a trial, the court ordered husband to pay $1,002 in monthly child support for the minor child and the child attending school. The court did not award spousal support to either party.

The court’s award of child support and denial of spousal support were based on wife’s and husband’s income. At the time of dissolution, wife was employed as a schoolteacher earning a gross monthly salary of $4,200. Husband’s income was heavily disputed, in part, because husband is a farmer whose income is derived from his one-third ownership interest in a partnership, Carleton Farms.

A provision of the guidelines concerning actual income addresses income from joint ownership of a partnership. That provision, OAR 137-050-0715(4)(f), provides:

“Actual income includes but is not limited to:
‡ ‡ * *
“(f) Income from self-employment, * * * or joint ownership of a partnership * * * minus costs of goods sold, minus ordinary and necessary expenses required for self-employment or business operation, including one-half of the parent’s self-employment tax, if applicable. Specifically excluded from ordinary and necessary expenses are amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, * * * or any other business expenses determined by the fact finder to be inappropriate or excessive for determining gross income.”

[863]*863(Emphasis added.) At the dissolution trial, wife argued that, to calculate husband’s income for purposes of determining husband’s child support obligation and determining whether to award spousal support, the trial court should add the depreciation deductions taken by the partnership in the relevant tax years back into the partnership income and, with the depreciation deduction added back in, impute one-third of the partnership’s income to husband’s income.

Whether the trial court was required to include the partnership’s depreciation expenses in its determination of husband’s income was addressed at the dissolution trial by two accountants and during closing arguments. Both parties put on evidence demonstrating that, in the three years before trial — 2011, 2010, and 2009 — the partnership had reported depreciation and claimed depreciation deductions. Wife offered the partnership’s tax forms, Form 4562, for those three years, which the court admitted into evidence. Form 4562 for 2011 indicated that the partnership had reported ordinary business income of $70,044 and $231,992 in total depreciation expense, all of which was “MACRS Depreciation” using the 150 percent declining balance method (150DB). Form 4562 for 2010 indicated that the partnership had reported an ordinary business loss of $74,274 and $193,237 in total depreciation expense, all of which was “MACRS Depreciation” using the 150DB method. Finally, Form 4562 for 2009 indicated that the partnership had reported an ordinary business loss of $7,099 and $215,780 in total depreciation expense, all of which was “MACRS Depreciation” using the 150DB method. The tax forms did not include definitions of accelerated depreciation or of MACRS depreciation.

Each party called an accountant to testify, and each addressed depreciation and the partnership’s tax forms. However, neither accountant described the partnership’s depreciation as accelerated depreciation. At no point did either accountant explain the terms “accelerated depreciation” or “MACRS depreciation.”

Instead, the accountants discussed depreciation only in general terms. One accountant, Fanning, wife’s witness, testified that “when calculating cash flow of an entity [864]*864depreciation is added back to ordinary income reflected on the tax return.” Therefore, for the partnership’s tax return for 2011, Fanning would add the $231,992 depreciation expense and the partnership’s $70,000 in ordinary business income to reflect the partnership’s cash flow.

Although the testimony of Gilman, the partnership’s long-time accountant, varied from Fanning’s testimony, he also did not address whether the partnership’s depreciation deductions, as indicated on the partnership’s tax forms, consisted of accelerated depreciation.

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Related

In re Tanner
426 P.3d 233 (Court of Appeals of Oregon, 2018)
In re Albar
424 P.3d 774 (Court of Appeals of Oregon, 2018)
In re the Marriage of DeShaw
369 P.3d 1194 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
366 P.3d 365, 275 Or. App. 860, 2015 Ore. App. LEXIS 1601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-carleton-orctapp-2015.