In re the Marriage of Garza

118 P.3d 824, 201 Or. App. 318, 2005 Ore. App. LEXIS 1142
CourtCourt of Appeals of Oregon
DecidedAugust 31, 2005
Docket0112-74233; A120014
StatusPublished
Cited by10 cases

This text of 118 P.3d 824 (In re the Marriage of Garza) 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 Garza, 118 P.3d 824, 201 Or. App. 318, 2005 Ore. App. LEXIS 1142 (Or. Ct. App. 2005).

Opinion

LANDAU, P. J.

Husband appeals a dissolution judgment that, among other things, requires him to pay wife a “combined” award of child and spousal support in the amount of $2,000 per month for 36 months and awards wife $10,000 in attorney fees. Hé argues that the support award is unreasonable and that the attorney fee award is unreasonable as well. We agree that, on the facts of this case, the portion of the combined support award that pertains to spousal support is excessive. We therefore reverse and remand for entry of an amended judgment awarding spousal support of $1,000 per month for the remainder of the 36 months provided in original judgment. Our decision on the spousal support award also requires that we reverse the child support award and remand for reconsideration. Finally, we conclude that our decision concerning the support awards requires that we vacate the attorney fee award and remand that award for reconsideration as well.

Based on the evidence in the record, we find the following facts on de novo review. Wife was born and raised in the Philippines. She completed high school there, as well as two years of secretarial training. Husband is an American citizen. He did not complete high school. In 1988, he began manufacturing wooden pallets in the back yard of an acquaintance. In the early 1990s, he became the sole owner of the business, Eagle Heart Pallet, Inc. (EHP). Since that time, he has continued to build pallets, as well as to drive delivery trucks for the company.

The parties were married in the Philippines in October 1994. At that time, wife was 30 years old and husband was 41. Wife remained in the Philippines for a year, joining husband in the United States in 1995. When she first came to the United States, she was employed as a housekeeper at a motel.

The parties’ daughter was born in April 1997. After the parties’ daughter was born, wife stayed home for two years. At the time of trial, she was employed full time through a temporary agency doing assembly work; her wage was $8.50 an hour.

[321]*321Sometime in the late 1990s, husband was diagnosed with Parkinson’s disease. He began treatment by a neurologist, Dr. Mertens, in September 2000. Mertens testified that medications prescribed for Parkinson’s “can sometimes make you cranky” and can cause drowsiness. Mertens predicted that husband’s Parkinson’s would allow him to function independently for approximately five to eight years; he doubted that husband could perform a “physical” job for five more years.

Husband’s brother-in-law, Whitney, was employed as an accountant for various companies from around 1965 to around 1990, after which he changed careers and became a carpenter. In early 2001, he began working at husband’s company, originally assisting with manufacturing operations and eventually organizing the company’s accounts, many of which were overdue. Whitney arranged payment schedules with various creditors, including a lumber supplier, the IRS, and the State of Oregon. The agreement with the IRS required that Whitney “run the company,” including exercising exclusive check-signing authority; it also specified that husband had no authority with respect to operation of the business and was to receive no property or funds from it except for $3,750 per month in salary. Whitney testified that those arrangements arose because husband’s behavior was “rather erratic” during the relevant time period but that, beginning in March 2002, his behavior, thought processes, and speech improved. Whitney also testified that he later reduced husband’s salary to $2,100 per month in order to “have him make a contribution towards” the taxes owed to the IRS.

In Whitney’s opinion, husband was a “very good salesman,” but he was “incapable of operating the books.” According to Whitney, some of the company’s debts were being paid out of “creative financing” of husband’s mother’s residence; as a result, the company owed husband’s mother $93,000. Whitney testified that the company’s total debt at the time of trial, including money owed to the IRS, the State of Oregon, husband’s mother, and business creditors, was approximately $350,000.

[322]*322A certified public accountant, Kyllo, testified that he had served as EHP’s accountant since February 2001. At that time, EHP had not filed tax returns since 1994. At the time of trial, the company owed $107,000 in federal taxes and $25,000 in state taxes, for both of which Kyllo had negotiated a monthly payment schedule of, respectively, $3,200 and $2,000. The company also owed $200,000 to vendors. Kyllo testified that, at the time of trial, the company’s liabilities exceeded its assets and that, as a result, the company had a value of zero. He testified that husband had “[v]ery little” concept of accounting practices and that Whitney was currently “running the business.” Kyllo had “serious doubt” that the business would still be operating a year from the time of trial.

Husband and wife also testified at trial. Husband testified that, around 1997 and 1998, he was “involved in a lot of domestic violence.” Wife obtained restraining orders against husband in 1998 and 1999; on at least one occasion, husband was arrested for violating an order. Husband testified that, in the fall of2001, his gambling behavior “really got bad” and that he gambled with company money. In 2001 or 2002, husband was convicted of assault in the fourth degree based on an incident in which he grabbed wife by the neck, leaving marks.

Wife testified that husband gambled at casinos and that there was “physical violence” during the marriage, in regard to which the police were called “[m]any times.” She testified that, after she obtained a restraining order against husband, he attended two sessions of anger management training.

The trial court awarded wife custody of the parties’ child. It awarded wife the family residence and most of the parties’ personal property. It awarded husband all interest in the business and some personal property, and ordered that he assume the parties’ credit card obligations.

• The court also awarded wife a “combined” support award of $2,000 per month. The court explained that, after hearing the foregoing evidence and the parties’ arguments, it believed that husband’s company was not a separate entity [323]*323from husband and that, even assuming that husband’s nominal income was $2,100 per month, he apparently had access to corporate money for gambling purposes. The court also stated that it did not make sense that husband could “take $90,000 and blow it and be solvent” if there were not other funds available. The court ordered that husband pay support for 36 months. At the end of that time, spousal support would terminate and child support would be recalculated. The dissolution judgment states that the spousal support “may be considered compensatory” and finds that it was based on the parties’ relative earning capacities, needs, and resources; on husband’s “waste of marital assets”; and on husband’s “mistreatment of [wife] after having brought her to the United States from the Philippines.” The judgment also recites that it attaches and incorporates by reference an Oregon Child Support Guidelines Worksheet. See OAR 137-050-0330 (setting out steps in procedure to determine amount of child support owed by parent).1

In turn, the worksheet recites that wife’s gross monthly income is $1,473 and that husband’s gross monthly income is $2,100.

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Bluebook (online)
118 P.3d 824, 201 Or. App. 318, 2005 Ore. App. LEXIS 1142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-garza-orctapp-2005.