In re the Marriage of Hutchinson

69 P.3d 815, 187 Or. App. 733, 2003 Ore. App. LEXIS 659
CourtCourt of Appeals of Oregon
DecidedMay 22, 2003
Docket15-99-14554; A116876
StatusPublished
Cited by18 cases

This text of 69 P.3d 815 (In re the Marriage of Hutchinson) 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 Hutchinson, 69 P.3d 815, 187 Or. App. 733, 2003 Ore. App. LEXIS 659 (Or. Ct. App. 2003).

Opinions

BREWER, J.

Husband appeals from a judgment that modified his monthly spousal support obligation to wife by reducing it from $6,000 to $3,000. Husband contends that the trial court should have reduced the support award to $250 per month and that, because he is unemployed and has no immediate prospects of finding employment, the court erred in attributing to him potential income of $120,000 per year. Husband also assigns error to the court’s decision to make the modification retroactive to April 1,2001, the due date of the support installment accruing in the month after he filed his motion for modification, rather than ordering wife to execute a satisfaction of any support arrearages that had accrued since December 1, 2000, pursuant to terms specified in the parties’ marital settlement agreement (MSA). On de novo review, we reduce husband’s spousal support obligation to $1,500 per month, effective April 1, 2001.

The parties were married in 1967, and they separated in 1999. They have two adult children. In July 2000, when their marriage was dissolved, husband was 58 years old and wife was 54 years old. Husband had a college degree and, for many years, had been a successful marketing executive for major hotel enterprises. Beginning in 1979, the parties resided in Asia so that husband could pursue his career. In March 2000, husband was terminated from his employment with a Hong Kong-based hotel business. At that time, husband was earning an annual salary of $240,000. Husband then worked as a consultant for several hotel clients until June 2000, earning approximately $48,000 for that work. Husband was unemployed in July 2000, when the dissolution judgment was entered.

Wife earned a bachelor’s degree in 1969. She was employed as an elementary school teacher for two years early in the marriage. However, wife worked as a homemaker throughout the remainder of the marriage. After the parties moved to Asia, wife wrote travel articles as a hobby, but she did not receive any income from that activity. Wife moved to Oregon when the parties separated in 1999.

[736]*736The parties’ MSA, which was incorporated into the dissolution judgment, provided that husband would pay indefinite spousal support of $6,000 per month to wife. It also divided the parties’ property. Wife was awarded the condominium in which she resides; two rental properties; two parcels of property in the Phillippines, one that she owns outright and another that she co-owns with husband; half of husband’s retirement accounts and severance pay from his last job; and half of his retirement benefits from a previous job. Husband was awarded his interest in a trust created by his family, consisting of a parcel of property in Washington, plus the other half of the accounts and benefits described above.

The MSA also contained the following provision:

“Husband is currently unemployed. Husband shall make good faith efforts to obtain employment. If Husband obtains employment hereafter defined as being an employee, owner, operator, or CEO of a business or acting as an independent contractor, less reasonable business expenses * * * within six months of May 1, 2000, the parties shall re-evaluate the support at that time without the need to show an unanticipated substantial economic change in circumstances. The parties acknowledge that Husband had a brief contract which has been completed where he received income during the finalization of this case that shall not be considered a basis for re-evaluation or modification of support. Any increase or decrease in support that results from any evaluation or modification proceedings filed, shall be effective the month in which Husband begins employment. If Husband fails to obtain employment within six months of May 1, 2000, he shall have the right to seek modification, without the need to show an unanticipated substantial economic change in circumstances with any such modification taking effect the seventh month from May 1, 2000. If Husband fails to obtain a modification, support shall continue at $6,000 per month until an agreement is reached by the parties or further order of the Court. If Husband’s salary * * * should exceed $250,000, * * * Wife shall be able to during the next 36 months from May 1, 2000, seek a modification to increase spousal support without the need to prove an unanticipated substantial economic change of circumstance. The court shall consider evidence of the parties’ life style during the marriage in that hearing. If during the 36 [737]*737months from May 1, 2000, Husband’s salary * * * falls below $250,000 * * * despite his good faith efforts, Husband has the right to seek modification without the need to show an unanticipated substantial change in circumstances.”

The MSA did not expressly specify the purpose of the spousal support award.1 However, the award provided wife with approximately 30 percent of husband’s pretax income based on his most recent annual salary of $240,000.

Husband did not secure employment after the dissolution. On March 28, 2001, he moved to modify his support obligation to $1,500 per month for a period of three years. In June 2001, husband moved back to the United States to live with his parents in order to “live much more cheaply [.]” In September, he amended his motion to request termination of spousal support or, in the alternative, a permanent reduction to an amount “to be determined at trial.” Also in September, husband received a tax refund of more than $33,000.

The case was tried in October 2001. At trial, husband requested a reduction in spousal support to $250 per month. He testified that he had used his share of the property division and a portion of the tax refund to pay his living expenses, legal fees, and spousal support. Husband’s uniform support affidavit showed monthly income of $413 per month, based on annualizing a one-time gift from his mother plus interest income of $80, to offset monthly expenses of approximately $2,550, excluding spousal support. At the time of trial, husband still had $21,700 of the refund proceeds.

Husband acknowledged that he had rejected a job offer, in late 2000, for $120,000 per year and that he recently had applied for a job that would have paid an annual salary of $150,000. He testified that he had attempted to find work by networking with colleagues and employment agencies and looking through the newspaper classifieds. He stated that his search had been impeded by several factors, including his [738]*738age; his specialized qualifications and experience; the difficulty of locating work in Asia and, for that matter, in the United States after having worked abroad for 20 years; the repercussions on the hotel industry of the events of September 11, 2001; and the blow that prolonged unemployment had delivered to his confidence level.

At the time of modification, wife was working 30 to 40 hours per week at an hourly rate of $9, without benefits, in a “paint-your-own-pottery” business. She had no plans to return to teaching. She testified that, even if she renewed her teaching certification — a two-year process — her prospects for finding work in her teaching field, art, were poor. Wife had invested the liquid assets that she received in the property division in several investment accounts, one of which had lost value. Wife testified that, in order to make ends meet, she had been forced to dip into assets that she had hoped to preserve for her retirement.2

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Bluebook (online)
69 P.3d 815, 187 Or. App. 733, 2003 Ore. App. LEXIS 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hutchinson-orctapp-2003.