In re the Marriage of Denotta

935 P.2d 475, 147 Or. App. 149, 1997 Ore. App. LEXIS 430
CourtCourt of Appeals of Oregon
DecidedMarch 19, 1997
DocketDR 91-12-047; CA A91804
StatusPublished
Cited by5 cases

This text of 935 P.2d 475 (In re the Marriage of Denotta) 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 Denotta, 935 P.2d 475, 147 Or. App. 149, 1997 Ore. App. LEXIS 430 (Or. Ct. App. 1997).

Opinion

DE MUNIZ, J.

Wife appeals the modification of spousal and child support. We reverse.

The dissolution judgment was entered in February 1993, following an August 1992 trial. At the time of the trial, husband worked for Mobil Oil as a territory manager with a salary of $75,000 a year plus benefits. After the trial, but before entry of the judgment, the parties reached a settlement that awarded spousal support of $2,000 a month for five years and child support of $1,000 a month for the parties’ three children. At about the same time as the entry of the judgment, husband filed a motion for a new trial or, in the alternative, a motion for relief from judgment or for modification of the judgment. The court denied the motion with leave to petition for a modification.

In March 1993, husband filed a motion for modification of spousal and child support. He asserted, inter alia, that there had been a material change in circumstances in that he had left Mobil Oil to work for Petrolube in an “entrepreneurial venture” and that his business interests would be unlikely to produce any cash flow. Following a July hearing, the court dismissed husband’s motion on the ground that husband “had not established a legally sufficient change of circumstances.”

In March 1995, husband brought this modification proceeding seeking termination of spousal support and a decrease of his child support obligation. Husband claimed a change in circumstances because he had been terminated by Petrolube and is now working with Hydraulic Repair and Design at an income of $30,000 a year. The evidence at the hearing showed husband’s monthly salary is $2,500 and a $450 car allowance. In addition, husband has a 50 percent interest in a franchise real estate company and a corporation that owns 40 acres of land in Washington that husband and his partner plan to improve and sell in five-acre lots. The lots are currently listed for sale at $60,500 to $70,000 each. Husband’s 1994 income tax return shows K-l1 income of $22,079. [152]*152Husband testified that that income was unavailable to him because it went to his partner to pay liabilities that the partner had incurred in the business. Since the dissolution, husband has lived in the parties’ waterfront Hood Canal property, which is free and clear.2 His Uniform Support Affidavit claimed monthly food expenses of $600 and entertainment expenses of $250.

The modification court found that husband’s K-l income was not a “resource” from which husband could pay support. It held that there had been a change of circumstances “in that [husband’s] income has dropped from $51,000 to $30,000 per year.” The court reduced the spousal support award to $1,100 and child support to $353 a month.

Wife assigns error to the court’s modification of the support obligations. Wife argues that husband has failed to prove a change of circumstances between the second and third modification proceedings. She argues that, in the second proceeding, husband represented to the court that his income was $51,000. She contends that the evidence in this third proceeding shows that husband’s income was $57,394, including the K-l income. She argues that the court erred in not including the K-l income and, when it is included, that husband did not show a change of circumstances.

We agree with wife that the court erred in holding that husband could choose to disregard his K-1 income as part of his income. In Perlenfein and Perlenfein, 316 Or 16, 848 P2d 604 (1993), the Supreme Court considered whether undistributed income of a closely held corporation that is attributable to a minority shareholder for income tax purposes is also attributable to the shareholder for purposes of determining a child support obligation. The court held that it is, but that a parent could rebut the presumptive amount of support derived by using that income by evidence that the income was “not actually available to the parent[]”Id. at 25.

[153]*153However, in Perlenfein, the income was undistributed income of a closely held corporation. Here, there was no evidence that husband was a minority shareholder with no control over the distribution of proceeds, and his income tax return shows $22,079 in income from his corporations. Although the court found that the K-l income was paid to husband’s business partner “to effectuate the long-term goals of the partnership,” and, thus, that the K-l income provides him with “no capacity” to pay support, husband produced no documentation to support his claim that the proceeds went entirely to his partner or even that he was obligated to pay them to his partner. The only evidence of the unavailability of the income was husband’s testimony. If we were to conclude that husband’s K-l income could be excluded simply because he promised the money to another party, then a parent could claim that any debt acquired after dissolution could be used as a means to limit support obligations. Perlenfein does not dictate that result, and we decline to accept it.

Husband argues, however, that he has established a change of circumstances even if the K-1 income is included:

“Wife * * * has added the partnership income to Husband’s current salary income while failing to add the partnership income to his salary income at the time of the last hearing. * * * If we compare apples and apples, we compare Husband’s salary income of $51,000 at the time of the last hearing versus $30,000 today; or we compare his salary plus K-l income of $99,000 at the time of the last hearing versus $52,079 today.”

Wife argues that, at the 1993 modification hearing, husband’s support affidavit showed a $51,000 salary and no K-1 income. However, in this proceeding wife herself introduced husband’s 1993 income tax return that does show K-1 income. Husband’s income has decreased between 1993 and 1995. Nonetheless, we agree with wife that husband’s change of economic circumstances here is not sufficient for reconsideration of support provisions. ORS 107.135(3)(b).

The evidence shows that husband has the capacity to earn more than his present income.3 See Hogue and Hogue, [154]*154115 Or App 697, 700, 839 P2d 760 (1992), mod 118 Or App 89, 846 P2d 422 (1993) (although husband did not act in bad faith in changing jobs that reduced his earnings, support was not modified as he did not establish that his ability to pay had changed). Husband has a degree in engineering. His employment with Petrolube presented him with a chance to turn the business from a losing to profitable one and to buy a 50 percent interest in it. Although he was unable to buy into the business, when he left the company it was profitable. Husband’s job with Hydaulic is to establish a fluid care division in the company. He testified that he is not satisfied with his present income and hoped shortly to again be making $75,000 a year. Also, about the time of the 1995 hearing, husband had been in contact with Mobil and discussed job opportunities. He testified that Mobil was downsizing, and, if he were to work for the corporation again, it would be at a lesser salary and he would have to relocate.

We also agree with wife that it is appropriate to give some consideration to husband’s assets in determining his ability to pay his agreed support obligation.

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Bluebook (online)
935 P.2d 475, 147 Or. App. 149, 1997 Ore. App. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-denotta-orctapp-1997.