In re the Marriage of Dow

302 P.3d 1188, 256 Or. App. 454, 2013 WL 1755873, 2013 Ore. App. LEXIS 471
CourtCourt of Appeals of Oregon
DecidedApril 24, 2013
Docket031172540; A148380
StatusPublished

This text of 302 P.3d 1188 (In re the Marriage of Dow) 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 Dow, 302 P.3d 1188, 256 Or. App. 454, 2013 WL 1755873, 2013 Ore. App. LEXIS 471 (Or. Ct. App. 2013).

Opinion

HADLOCK, J.

Wife appeals a supplemental judgment that modified the terms of a 2004 stipulated judgment that dissolved her marriage to husband. Wife challenges both the trial court’s modification of husband’s spousal support obligation and the court’s decision to award husband a share of wife’s Oregon Savings Growth Plan (OSGP) account, the existence of which she had not disclosed at the time of the parties’ divorce. Without further discussion, we reject wife’s argument that the trial court erred in awarding husband a share of her OSGP account. For the reasons set forth below, we also reject wife’s contention that the trial court erred when it modified the terms of husband’s spousal support obligation. Accordingly, we affirm.

The supplemental judgment includes extensive factual findings that wife does not challenge on appeal. We discuss the facts in accordance with those unchallenged findings, the parties’ stipulations, and other uncontested information in the record. Because an extended discussion of the underlying facts would not benefit bench or bar, we quote only those findings that relate to the arguments that wife raises on appeal, which are mostly procedural.

The parties were married in 1971 and had two children in the 1980s. Husband is a physician and wife is a certified public accountant. The parties agreed to a stipulated general judgment of dissolution in 2004. At that time, husband’s monthly income was $12,074 and wife’s was $6,868. The stipulated dissolution judgment included the following terms related to spousal support:

“[Wife] shall receive spousal maintenance pursuant to ORS 107.105. The spousal support award herein is based upon the factors set forth below, including, but not limited to the following:
“[Listing factors.]
“[Wife] is awarded compensatory support for [wife’s] significant financial or other contribution to education, training, vocational skills, career, or earning capacity of the other party and when such an award is otherwise just and equitable pursuant to ORS 107.105. The spousal support [457]*457award herein is based upon the factors set forth below, including, but not limited to the following:
“[Listing factors.]
* * * *
“A. As compensatory support and spousal maintenance, [wife] is awarded support in the sum of $1,000 per month commencing on the first day of October 2004 and continuing * * * until [wife] reaches the age of 67 * * *. In the event that [husband’s] annual income *** exceeds $160,000, spousal support shall be increased in the following year by 50% of the amount earned in excess of $160,000 by [husband], * * * In the event that [wife’s] annual income * * * exceeds $120,000, [wife] shall pay in the following year 50% of the net amount earned in excess of $120,000 by [wife] ***.”

The parties have referred to the contingent support requirements in the last-quoted paragraph as the “overage provision” of the stipulated judgment, and we do likewise.

The 2004 stipulated judgment also included child support provisions and a division of the parties’ real and personal property. The judgment provided that the parties’ marital home would be listed for sale in the fall of 2007, or another date agreed to by the parties, with sale proceeds to be divided between the parties. The judgment also allowed wife to retain possession of the home until it sold. The trial court later found that wife “did not cooperate in good faith to cause the sale of the house” in 2007, but instead continued to live there “rent and mortgage free.”

In 2009, wife moved to modify husband’s obligation to pay wife spousal support “to such terms as are just and equitable under all of the relevant circumstances,” claiming that she had suffered a significant reduction in income because she had lost her job and a position as a corporate director. Husband filed a response in September 2009 in which he argued that the trial court should deny wife’s motion because there had not been “a change in circumstances sufficient to warrant a spousal support modification.” He also pleaded, as a counterclaim, that he should be awarded a money judgment of $450,000 for wife’s failure to put the marital home on the market in the fall of 2007 when, he argued, it could have sold for a higher price than it was likely to command in 2009.

[458]*458The hearing on wife’s motion was postponed repeatedly. In early 2010, wife amended her motion to modify the stipulated judgment, asking the trial court for an order quantifying the amount of spousal support that husband owed her for 2008 and 2009 by operation of the overage provision.1 Wife later asked the trial court to issue an order requiring husband to show cause why an order should not be entered against him “[modifying the current spousal support awarded to [wife] pursuant to the Stipulated General Judgment for Dissolution of Marriage.” Wife had obtained new employment since she lost the position she had held at the time of the parties’ divorce, but she asserted in an affidavit that she recently had received a termination notice from her new employer, was trying to find other work, and had applied for unemployment benefits. Accordingly, wife claimed, “there [had] been a substantial and unanticipated change in [her] financial circumstances *** warranting a review and increase in [her] spousal support award.”

Wife also filed a new hearing memorandum in which she asserted that the issues before the court were her amended motion to modify the stipulated judgment and husband’s response and counterclaim from September 2009. Wife asked the court to order husband to pay her additional spousal support for 2008 and 2009 and to implement reasonable terms for sale of the marital residence.

In his response to the motion for order to show cause, husband denied wife’s assertion that spousal support should be modified; according to him, “there [had] been no substantial change in circumstances sufficient to warrant a spousal support modification.” If the court found that a substantial change in circumstances had occurred, however, husband requested “that the ‘overage’ provision of the spousal support in * * * the Judgment of Dissolution be eliminated in its entirety.” Husband acknowledged that he owed wife spousal support for 2009 based on the overage provision, although he disagreed with wife about the amount. Husband also asked the court to order that the [459]*459marital residence be listed for sale at a specific price, with periodic price drops.

At an April 2010 hearing, the trial court resolved the dispute regarding spousal support for 2008 and 2009. The court also ordered the parties to sign a new listing agreement for the family residence, putting it up for sale on specific terms. Wife’s motion to modify the terms of husband’s spousal support obligation remained pending.

In September 2010, husband filed what he characterized as an amended response to wife’s motion for an order to show cause regarding modification of spousal support, along with a counterclaim. Husband denied wife’s assertion that his spousal support obligation should be increased.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re the Marriage of Luty
263 P.3d 1067 (Court of Appeals of Oregon, 2011)
In the Matter of Marriage of Beebe
260 P.3d 601 (Court of Appeals of Oregon, 2011)
In re the Marriage of Bushell
857 P.2d 174 (Court of Appeals of Oregon, 1993)
In re the Marriage of Triperinas
59 P.3d 586 (Court of Appeals of Oregon, 2002)
In re the Marriage of Garza
118 P.3d 824 (Court of Appeals of Oregon, 2005)
In re the Marriage of Steele
293 P.3d 1077 (Court of Appeals of Oregon, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
302 P.3d 1188, 256 Or. App. 454, 2013 WL 1755873, 2013 Ore. App. LEXIS 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-dow-orctapp-2013.