In Re the Marriage of Haguewood

638 P.2d 1135, 292 Or. 197, 1981 Ore. LEXIS 1177
CourtOregon Supreme Court
DecidedDecember 9, 1981
DocketCA 17025, SC 27632
StatusPublished
Cited by84 cases

This text of 638 P.2d 1135 (In Re the Marriage of Haguewood) is published on Counsel Stack Legal Research, covering Oregon Supreme Court 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 Haguewood, 638 P.2d 1135, 292 Or. 197, 1981 Ore. LEXIS 1177 (Or. 1981).

Opinions

[199]*199TANZER, J.

This dissolution case presents an opportunity to examine a recurrent situation in light of our observation in Grove and Grove, 280 Or 341, 344, 571 P2d 477 (1977), that support and property division provisions of a decree must often be formulated in a coordinated manner to achieve the equitable objectives of a dissolution proceeding. Here, we examine a long-term marriage, the principal asset of which is a corporate family business. Like the baby before King Solomon, this corporation cannot prudently be divided. Unlike the case facing our biblical predecessor, both of the parties urge us not to cleave the corporation but, at the same time, to divide its benefits, and the courts do not have his discretion to refuse to act.

REVIEW OF EQUITABLE DISCRETION

A threshold issue is the proper scope of appellate review of equitable remedies ordered in domestic relations cases. This being a case in equity, our permissible scope of review on the record is entire. ORS 19.125(3) and (4) provide:

“(3) Upon an appeal from a decree in a suit in equity, the Court of Appeals shall try the cause anew upon the record.
“(4) When the Court of Appeals has tried a cause anew upon the record, the Supreme Court may limit its review of the decision of the Court of Appeals to questions of law.”

Finding facts anew on the record is a relatively simple, straightforward process. See, e.g., Waterman v. Armstrong, 291 Or 551, 633 P2d 774 (1981). In this case, however, there is no reason asserted for a retrial of the facts on review. Rather, the dominant plea of the appellant in the Court of Appeals and the petitioner on review is to modify the equitable relief decreed below. Appellate review of discretionary orders in equity is a more complex process than factfinding and our initial discussion is an attempt to articulate some of the fundaments of that process which ordinarily go unspoken.

ORS 19.125(3) may promise more in the way of trial anew than the appellate courts actually deliver. Neither the Court of Appeals nor this court approaches its [200]*200appellate or review function in a vacuum as if circuit courts were mere masters and there were no trial court decree. Appeal is not regarded as simply a second trial. In recent years, most appeals of domestic relations decrees have been finally decided by the Court of Appeals. The approach of the Court of Appeals has been to promote finality of trial court decrees and to refrain from modifying decrees unless there is some good reason to do so. Most commonly, it has done so simply by concluding that an order is or is not an abuse of discretion, without further elaboration. Recently, however, that court has resorted to statements which give a somewhat more understandable explanation of its approach. In McCoy and McCoy, 28 Or App 919, 926, 562 P2d 207 (1977), the court criticized its former reliance on the term “abuse of discretion” and expressed a new standard of review for “mistake”:

“* * * It is not the policy of the law to make appellate review a matter of course where the losing party below automatically gets another chance to make his case. While de novo review may be characterized as a trial anew, the burden is on the appellant to show that the lower court made a mistake. Where there are viable alternatives available, often no two courts can agree which is the preferable. There is often no perfect remedy, but merely a choice between several ‘dull axes.’ See Wirthlin and Wirthlin, 19 Or App 256, 527 P2d 147 (1976). The role of the appellate court is not to substitute its preferences for that of the lower court. In this case the trial court has attempted to divide an array of marital assets. We may prefer reshuffling but should be reluctant to do so unless our preference is motivated with sufficient conviction to proclaim that the trial court made a mistake.”

McCoy is a valiant attempt to articulate a standard, but it has its shortcomings. The foremost difficulty of application of this standard is that it does not tell us against what rule of law, judicial policy or judge’s intuition a remedy is to be evaluated to determine if there has been a mistake.

More recently, the Court of Appeals has described its practice as reflecting judicial preference. In Pullen and Pullen, 38 Or App 137, 142, 589 P2d 1145, rev den 286 Or 449 (1979), the court said:

“Although this court’s review is de novo and we must exercise independent judgment based on our own review of [201]*201the record, our role is not to substitute our preferences for those of the lower court. We will not modify a property division unless we are convinced that we can make a significantly preferable disposition than that made by the trial court. * * *” See also Frishkoff and Frishkoff, 45 Or App 1033, 1042, 610 P2d 831 (1980).

This too has its shortcomings because, again, there is no statement of how the court determines what is “significantly preferable.” That is a question of legal substance.

Nevertheless, these Court of Appeals holdings represent a move away from the “abuse of discretion” standard, under which a modification was tantamount to a condemnation of the trial judge for wrongdoing, to appellate review based on reasoned preference of sufficient degree to justify disturbing the circuit court decree. Their approach at the jurisprudential level is at once an invitation to principled arguments and a statement of self-restraint in favor of stability. ORS 19.125(3) requires the Court of Appeals to try every case anew upon proper invocation of that statutory right, but it leaves the Court of Appeals with discretion as to whether it will modify decrees. McCoy and Pullen represent policies which are permissible under ORS 19.125(3).

The earlier pronouncements in this court have been similarly addressed primarily to a policy of appellate restraint rather than substantive law. For example, in Sandner v. Sandner, 243 Or 349, 350, 413 P2d 424 (1966), this court repeated its intention to disturb only those decree provisions which are “clearly erroneous,” but it did not express a legal rule, policy or principle by which to determine the existence of clear error. More typically, in Hofer v. Hofer, 247 Or 82, 87, 427 P2d 411 (1967), we reviewed for an “abuse of discretion,” and found none, citing Smith v. Smith, 212 Or 654, 656, 320 P2d 1111 (1958), wherein we reviewed for “clear abuse” of discretion. Again, these are statements of restraint, not statements of substantive law. They leave open the question of what equitable policies are to be applied by trial courts in the exercise of their discretion.

The policy favoring finality of decrees suggests that we modify discretionary acts rarely, and that has been [202]*202our practice since 1969 when we became a court of review.

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Bluebook (online)
638 P.2d 1135, 292 Or. 197, 1981 Ore. LEXIS 1177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-haguewood-or-1981.