In Re the Marriage of Crump

908 P.2d 839, 138 Or. App. 362, 1995 Ore. App. LEXIS 1779
CourtCourt of Appeals of Oregon
DecidedDecember 27, 1995
Docket15-94-02110; CA A87526
StatusPublished
Cited by5 cases

This text of 908 P.2d 839 (In Re the Marriage of Crump) 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 Crump, 908 P.2d 839, 138 Or. App. 362, 1995 Ore. App. LEXIS 1779 (Or. Ct. App. 1995).

Opinion

*364 HASELTON, J.

Husband appeals a judgment of dissolution, challenging the award of spousal support and judgment in favor of wife for a support arrearage accumulated from a temporary support order. We review de novo, ORS 107.405, ORS 19.125(3), and remand for modification of the judgment.

Husband and wife, who are in their mid-40s, separated in February 1994, after 10 years of marriage. They have no children from their marriage, although both have children from previous marriages. Husband works for the Postal Service and is paid $16 an hour, or $2,752 a month based on a 40-hour week. In addition, in recent years, husband has worked a substantial amount of overtime, bringing his monthly income to roughly $4,000. Before and during most of the marriage, wife worked at various positions in restaurants or taverns in Eugene.

In March 1994, wife filed a petition for dissolution and a motion for temporary relief. Pursuant to ORS 107.095, 1 the court awarded temporary spousal support in May 1994, ordering husband to pay $350 toward monthly house and land payments and $450 per month for temporary spousal support, beginning June 1, 1994. In addition, the court ordered wife to pay $380 per month towards the total monthly house and land payments of $730.

At the time wife filed the petition, she was working as a manager for a fraternal club, earning between $1,600 and $1,700 per month. However, in May 1994, wife moved to Prineville and began working as a forestry technician for the U.S. Forest Service. The seasonal position pays $7.22 per hour, but is limited by contract to a maximum of 1,039 hours a year.

*365 From June to December 1994, husband failed to pay any temporary spousal support, incurring an arrearage of $2,700. However, from June until September 1994, when the parties’ home was sold, husband paid the entire house and land payment of $730, including the $380 that wife had been ordered to pay under the temporary support order. In January 1995, the court entered a judgment of dissolution that directed husband to pay wife support of $500 per month for two years, beginning December 1,1994, and $300 per month for the ensuing two years. The judgment also awarded wife $2,700, representing the temporary support arrearage.

Husband first assigns error to the award of spousal support. In entering that award, the court referred to “[wjife’s right to support * * * upon a standard of living experienced during the marriage,” and found “a significant disparity in income”:

“Husband is employed by the U.S. Postal Service. Wife has worked for and expects improved employment with U.S. Forest Service. Currently she is receiving unemployment benefits. She anticipates earning $1,200.00 a month when she becomes employed full time. Husband earns at least $4,000.00 per month, but hopes to reduce overtime hours which may result in lower earnings in the future.”

Husband argues that the trial court erroneously considered wife’s earning potential to be $1,200 per month —the amount she would earn if she ultimately worked for the Forest Service in a full-time position. 2 He contends that the proper measure of wife’s earning capacity is actually $1,700 per month —the amount she made in the restaurant industry during the marriage.

ORS 107.105(l)(d) prescribes the factors governing awards of spousal support. 3 Among those factors is “[t]he *366 earning capacity of each party, including educational background, training, employment skills and work experience^]” ORS 107.105(l)(d)(D). Thus, in assessing earning capacity, the court considers a range of considerations other than actual current income to determine the parties’ earning capacity. The parties’ work histories and qualifications are especially significant in that inquiry. See, e.g., Harper and Harper, 122 Or App 9, 12-13, 856 P2d 334, rev den 318 Or 246 (1993) , cert den_US_, 114 S Ct 2103, 128 L Ed 2d 664 (1994) ; Furlong and Furlong, 120 Or App 105, 107-09, 852 P2d 233 (1993).

Husband, citing Auld and Auld, 72 Or App 747, 697 P2d 220 (1985), argues that, although wife may have the right to choose a lower-paying career, he is not obligated to subsidize that choice. In Auld, we held:

“[W]ife is employable as a real estate salesperson and a school teacher. She is not presently employed, because she has made a career choice to work in interior design. * * * Husband agrees that wife has the right to change careers but that it is inequitable to require him to pay for her career training for the third time. We agree. Wife is young and healthy. She is employable and capable of self sufficiency without additional education. She has not been absent from *367 the job market, and she has no long term financial obligations. We therefore modify the decree to eliminate spousal support.” 72 Or App at 751.

Like the wife in Auld, wife here has shown no reason ■ why her earning capacity should be measured by reference to her income following a voluntary career change — much less a post-separation voluntary change. There is no evidence in the record that wife needed to relocate to a smaller town with proportionately lower wages and opportunities. Nor is there any evidence that her career in restaurant work was debilitating or limited in either duration or opportunity for advancement. Finally, there is no evidence that the Forest Service job, even if it eventually becomes full-time, will provide more stability, training in marketable skills, or offer better health or retirement benefits. In short, this is not a situation in which support would enable wife to become more employable through education, retraining, or a career that leads to “becoming] self supporting at a standard of living not overly disproportionate to that enjoyed during the marriage to the extent that is possible.” ORS 107.105(l)(d)(E). See, e.g., Wight and Wight, 105 Or App 188, 804 P2d 494 (1991) (wife entitled to spousal support whére she put aside opportunity for education and employment for the benefit of the family); Holt and Holt, 97 Or App 192, 776 P2d 7 (1989) (spousal support appropriate where evidence showed that retraining was necessary because wife’s ability to maintain her current earnings through heavy labor was deteriorating).

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Bluebook (online)
908 P.2d 839, 138 Or. App. 362, 1995 Ore. App. LEXIS 1779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-crump-orctapp-1995.