In re the Marriage of Ganger & Little

911 P.2d 1276, 139 Or. App. 350, 1996 Ore. App. LEXIS 249
CourtCourt of Appeals of Oregon
DecidedFebruary 28, 1996
DocketDO92-325; CA A85142
StatusPublished
Cited by4 cases

This text of 911 P.2d 1276 (In re the Marriage of Ganger & Little) 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 Ganger & Little, 911 P.2d 1276, 139 Or. App. 350, 1996 Ore. App. LEXIS 249 (Or. Ct. App. 1996).

Opinion

DEITS, P. J.

Husband appeals from an order modifying a judgment of dissolution, in which the trial court denied husband’s motion to modify or terminate spousal support and his motion seeking increased visitation. Husband also appeals from a supplemental judgment awarding wife attorney fees. We affirm.

The court entered a judgment dissolving the parties’ 16-year marriage on October 23, 1992. At the time of the dissolution, husband and wife had five children, ages 13,10, 7, 3, and 1. The judgment of dissolution ordered husband to pay wife spousal support of $400 per month for a period of two years, $300 per month for the next two years, and $200 per month for the final two additional years. The judgment also granted custody of the children to wife, subject to specified visitation for husband.

At the time of the dissolution hearing, wife had an associate degree in dental hygiene and had worked sporadically as a dental hygienist until 1989, when she devoted her energies to homemaking. The trial court noted wife’s potential difficulty in entering the work force, but found that she should be able to earn a minimum wage of $823 per month. Husband had been employed in construction work and had an average monthly gross income of $2,291.

In November 1993, wife remarried. At that time, wife was working only one day per week and earning approximately $720 per month. Wife’s new husband was earning $1,423 per month, and husband’s monthly income had increased to $2,845. Husband moved to modify the dissolution judgment to accurately reflect his right to mid-week visitation, to add a requirement that the parent supervising the children must notify the other parent if medical attention is sought for any child, to terminate or reduce spousal support on the ground that wife’s remarriage constituted a substantial change of economic circumstances, ORS 107.135(2)(a), and to increase summer visitation from three weeks to six weeks.1 ORS 107.135(1)(a). The trial court entered an order modifying the judgment of dissolution with [353]*353respect to husband’s right to mid-week visitation and notification of medical services. However, the court denied husband’s motions to terminate or reduce spousal support and to increase his summer visitation.

Husband first assigns error to the trial court’s denial of his motion to terminate or reduce his spousal support obligation. As a prehminary matter, husband argues that the trial court erroneously placed on him the burden of proving that wife’s remarriage constituted a substantial change in circumstances. Husband contends that wife has the burden of proving that the conditions that necessitated support continue after her remarriage and that she failed to carry that burden.

In Fouts and Fouts, 98 Or App 483, 486, 779 P2d 145, rev den 308 Or 660 (1989), we held that remarriage is to be considered in the same manner as any other change of circumstance:

“ORS 107.135(2)(b) authorizes the modification or termination of a spousal support award when there has been a substantial change in the parties’ economic circumstances. As stated in [Bates and Bates, 303 Or 40, 46, 733 P2d 1363 (1987)], remarriage may result in such a change. However, nothing in the statute suggests that the economic effects of remarriage should be treated differently than any other change of circumstances. Accordingly, we conclude that there is no authority or justification for shifting the burden of proof in cases where the alleged change of circumstances is remarriage.”

Husband argues, however, that our decision in Fouts is inconsistent with our later decision in Haywood and Haywood, 120 Or App 339, 852 P2d 891 (1993), and to the extent that they are inconsistent, Haywood, as the later case, must control. We conclude that to the extent that there are inconsistencies in the two opinions, the reasoning of Fouts is correct.

The pertinent language from Haywood, on which husband relies, is our statement that:

“Although remarriage does not automatically result in termination of spousal support, it is a circumstance that can [354]*354justify modification or termination, unless the dependant spouse can ‘show that her need for support continues substantially as it was originally.’ Ho and Ho, 93 Or App 421, 424, 762 P2d 344 (1988); see also Bates and Bates, 303 Or 40, 733 P2d 1363 (1987).” Id. at 341-42 (emphasis supplied).

That language certainly does imply that the burden shifts to the dependent spouse when that spouse has remarried. However, for the reasons that we discussed in Fouts, that implication is incorrect. It is not supported by the decisions in Ho or Bates, on which it relies, nor is it consistent with the pertinent statute, ORS 107.135(2)(a).

The above quoted passage from Haywood is based, in material part, on a quote from Ho and Ho, 93 Or App 421, 424, 762 P2d 344 (1988):

“Remarriage does not automatically result in termination of a spousal support award, but it is a circumstance that can justify modification, unless the dependant spouse shows that the reasons for the original award exist.”

In Fouts, we specifically noted that our refusal to adopt a burden shifting approach when the obligee spouse remarries did not conflict with Ho:

“Our conclusion * * * is not inconsistent with our opinion in Ho and Ho, 93 Or App 421, 762 P2d 344 (1988), where we held that the husband’s presentation of evidence as to the wife’s change in employment and domestic association was sufficient to justify modification or termination of the spousal support, ‘unless wife were to show that her need for support [continued] substantially as it has originally. 93 Or App at 424. In this case, husband presented no evidence regarding changes in wife’s circumstances, other than the fact that she has remarried.” Fouts, 98 Or App at 487.

We continue to believe that our interpretation in Fouts of Ho, as describing the obligee spouse’s burden of rebutting the obligor spouse’s evidence instead of the initial allocation of the ultimate burden of proof, is correct. As we explained in Fouts, nothing in Bates, or in the pertinent statute, ORS 107.135(2)(a), requires that remarriage be treated differently than any other economic change of circumstances. Consequently, the trial court here properly [355]*355placed the burden on husband to prove that wife’s remarriage constituted a substantial change of economic circumstances under the statute. See Morrison and Morrison, 139 Or App 137, 910 P2d 1176 (1996).

Husband argues, in the alternative, that even if he has to prove a substantial change of economic circumstances, he satisfied that burden.

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Bluebook (online)
911 P.2d 1276, 139 Or. App. 350, 1996 Ore. App. LEXIS 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-ganger-little-orctapp-1996.