In re the Marriage of Cheever

162 P.3d 287, 213 Or. App. 441, 2007 Ore. App. LEXIS 869
CourtCourt of Appeals of Oregon
DecidedJune 20, 2007
Docket991272664; A128786
StatusPublished
Cited by1 cases

This text of 162 P.3d 287 (In re the Marriage of Cheever) 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 Cheever, 162 P.3d 287, 213 Or. App. 441, 2007 Ore. App. LEXIS 869 (Or. Ct. App. 2007).

Opinion

HASELTON, P. J.

Husband appeals from a supplemental judgment, pursuant to ORS 107.136, reinstating a previously terminated award of spousal support.1 We review de novo. ORS 19.415(3); ORS 107.405. For the reasons that follow, we determine that, in the totality of the pertinent circumstances, including the purposes of the original award, the reasons for the termination of support, the parties’ conduct and circumstances following the termination of support, and the parties’ current circumstances at the time of the application for reinstatement, reinstatement was “just and equitable.” Accordingly, we affirm.

The following facts are undisputed. Husband and wife were married in June 1987, and the dissolution judgment was entered in December 1999, when husband and wife were both 42. At the time of dissolution, husband was self-employed as a cardiologist, earning approximately $320,000 a year, and wife was employed at Oregon Health and Science University (OHSU) as a histocompatability technologist, earning somewhat less than $45,000 a year.2 Based on the parties’ stipulation, husband was required under the dissolution judgment to pay wife maintenance spousal support of $2,150 per month from September 1999 through August 2014, with a step-down to $1,000 per month from September 2014 through July 2022, when wife would turn 65.

In March 2000, wife married Dickenson, a retired dentist with no income. Dickenson’s only significant asset was a sailboat that he purchased with the proceeds from selling his dental practice. Upon marrying, wife and Dickenson decided to live on the sailboat and spend their time sailing [444]*444the South Pacific. Accordingly, wife quit her job at OHSU, sold assets, and traveled with Dickenson for four years.3 Throughout that time, wife’s expenses while living on the boat were “incrediblly]” lower than her expenses when living with husband.

In March 2000, shortly after her marriage to Dickenson, wife agreed to a termination of husband’s spousal support payments. See ORS 107.135(1)(a), (3)(a).4 The consequent stipulated judgment provided, as pertinent:

“The basis of termination of spousal support is Petitioner’s remarriage. Petitioner’s new husband is capable of providing support at a level that justifies termination of spousal support. The termination of Respondent’s spousal support obligation is without prejudice to Petitioner’s rights to reinstatement of support under ORS 107.136.”

Over the next four years, husband continued to work as a cardiologist, and his income increased very substantially from approximately $320,000 to approximately $650,000 in 2004. Husband’s expenses increased as well; he remarried, had a child with his new wife, and began supporting two stepchildren in college.

In December 2003, wife separated from Dickenson and returned to Oregon, and, in August 2004, they were divorced. At the time of their divorce, Dickenson still had no income and no assets other than his sailboat. Wife did not seek spousal support from Dickenson.

After returning to Oregon, wife resumed her former employment at OHSU, earning approximately $3,600 per [445]*445month — slightly more than she had earned in the same position four years earlier. Wife’s expenses also returned to the same level, approximately $3,700 per month, that they were at the time of her dissolution from husband.

In November 2004, wife filed a motion pursuant to ORS 107.136 to reinstate the terminated award of spousal maintenance support. Wife contended that reinstatement was warranted because the circumstances giving rise to the termination no longer existed, because the purpose of the original support award had not been satisfied, and because husband was fully capable of meeting his previously stipulated obligation.

Husband did not dispute that he was, in fact, financially capable of paying the full amount of support, if the previously terminated award were reinstated. However, husband did contend that reinstatement would not be “just and equitable” because wife had, upon marrying Dickenson, freely chosen a qualitatively different — and much less expensive — lifestyle, and the financial consequences of the failure of that choice were properly and fairly borne by wife, and not by husband, who had moved on with his life.

The trial court rejected husband’s arguments and reinstated support to continue on the same terms as originally awarded. The court explained:

“The Oregon Supreme Court’s decision in Grove and Grovel, 280 Or 341, 571 P2d 477 (1977),] established many years ago that the fact of remarriage by the recipient of spousal support does not automatically end the obligee’s right to receive spousal support. The cases since Grove have established a series of considerations in such cases. Chief among them is that the trial court should evaluate whether the original purpose of the spousal support has been satisfied by the circumstances of Wife in her new marriage. * * * With Grove, Wife’s remarriage ends the support only if she no longer needs it to secure her standard of living.
‘With ORS 107.136, the supported ex spouse’s rights as determined [in] the Judgment continue for the stated duration of the spousal support and may [be] reinstated so long as the maintenance of her standard of living would require.
[446]*446“The purpose for which spousal support was provided as between these parties was clearly for maintenance of the standard of living the parties enjoyed during their marriage. This Court finds that with the dissolution of the intervening marriage, the purpose for the award of spousal support remains.
“Other than whether the purpose of the support has been satisfied, what other consideration could illuminate the process of applying this statute? Considerations of bad faith have no role in this case. Ability to pay is not an issue here. [Husband’s] right to get on with his life free from the possibility that support would be reinstated in the future is an argument against the enactment of this law, not a principle in its application.
“[Wife] is in virtually identical circumstances to those which existed at the time of Dissolution. [Husband] agreed to pay [wife] spousal support for 25 years. He got a four year break.”

The trial court subsequently entered a supplemental judgment, reinstating spousal support effective April 1, 2005, on the same terms as the original judgment.5

On appeal, husband challenges the trial court’s reinstatement of maintenance spousal support.

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Related

In Re the Marriage of Uhde
175 P.3d 511 (Court of Appeals of Oregon, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
162 P.3d 287, 213 Or. App. 441, 2007 Ore. App. LEXIS 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-cheever-orctapp-2007.