In re the Marriage of Isham

912 P.2d 925, 139 Or. App. 433, 1996 Ore. App. LEXIS 293
CourtCourt of Appeals of Oregon
DecidedMarch 6, 1996
DocketL920795CV; CA A85316
StatusPublished
Cited by3 cases

This text of 912 P.2d 925 (In re the Marriage of Isham) 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 Isham, 912 P.2d 925, 139 Or. App. 433, 1996 Ore. App. LEXIS 293 (Or. Ct. App. 1996).

Opinion

EDMONDS, J.

Husband appeals from the portion of the judgment of dissolution of marriage that awarded wife the cattle ranch she inherited from her father while she and husband were married. ORS 107.105(1)(f). His sole assignment of error is that the trial court should have included all of the value of the ranch within its division of the parties’ marital assets and that, therefore, he is entitled to be awarded one-half of its value. We review de novo, ORS 19.125(3), and modify the judgment.

Husband and wife were married 28 years. Both parties have worked throughout the marriage. Wife currently earns $1,446 per month, and husband earns $1,896 per month. They have two minor children who currently reside with husband. Wife is required by the judgment to pay $302 per month as child support. In 1982, wife inherited a two-thirds undivided interest in her family’s ranch. The other one-third went to wife’s uncle. The ranch has been in wife’s father’s family for 82 years. It consists of two parcels. The main parcel, known as the Morgan Ranch, has 1,122 acres and includes an older home that is in poor condition, corrals, and several outbuildings. The second parcel has 483.03 acres and is used entirely for grazing of cattle.

Wife is the only child of her father, who was divorced from wife’s mother when wife was quite young. Although wife lived with her mother, she spent summers at her father’s ranch, working with the cattle and doing other chores. In 1984, wife and husband entered into an agreement with wife’s uncle to purchase his one-third interest for $60,000. They gave the uncle $15,000 as a down payment and executed a promissory note for the remaining $45,000. The parties borrowed $15,000 from wife’s mother in order to make the down payment. The parties have used funds from their joint checking account to pay back both obligations. Part of those obligations remained unpaid at the time of trial.

At the time of wife’s father’s death, the parties lived in Gresham. After wife’s father’s death, they visited the ranch approximately two weekends a month. In 1988, wife moved to the ranch with the children. At that time, the ranch had approximately 70 head of cattle, which wife had also [436]*436inherited from her father. Although she worked full time at another job, she also worked on the ranch and raised cattle. In order to pay for the cattle operation, wife took out a personal line of credit with her bank. Both husband’s and wife’s paychecks, as well as the proceeds from the cattle operation, were deposited into the parties’ joint checking account. Out of that account, wife paid household expenses, other ranch expenses, the promissory note, the loan owed to her mother and the personal credit line obligation.

Husband remained in Gresham in order to sell their home, and in July 1989, he moved to the ranch. The parties used the $17,000 in proceeds from the sale of their Gresham home to pay ranch expenses, to rewire the electrical lines in the ranch home, to pay the personal line of credit, and to buy livestock. From July 1989 to July 1992, husband and wife lived on the ranch together. They held full-time jobs off the ranch and performed ranch chores in their free time. The evidence indicates that wife spent significantly more time than husband performing ranch operations during this period of time.

At the time of the dissolution, the largest asset owned by the parties was the cattle ranch, which the trial court valued at $200,000. The ranch also had marketable timber valued at $108,349.1 The only other significant asset was wife’s retirement account with the Public Employes Retirement System (PERS), valued at $223,845.

At trial, wife conceded that the one-third interest in the ranch that she and husband bought from her uncle was part of the marital estate. However, she contended that the two-thirds interest in the property that she inherited from her father was a nonmarital asset or, alternatively, if a marital asset, that she had rebutted the presumption that the property was acquired through equal contribution by husband and wife. See ORS 107.105(l)(f). The trial court agreed with wife, finding that wife’s father disliked husband and did not intend to benefit husband when he devised the [437]*437two-thirds interest in the ranch to wife. Based on that evidence, the trial court concluded that two-thirds of the interest in the ranch and timber should be excluded from the assets to be divided among the parties. It then awarded wife the entire ranch, its timber and cattle, as well as two-thirds of the present value of her PERS retirement account, and required her to pay husband an equalizing judgment of $58,047 secured with a judgment lien on the ranch. Under the court’s division, husband received $170,154 in assets, and wife was awarded assets valued at $402,921.

ORS 107.105(1)(f) provides, in part:

“Whenever the court grants a decree of marital annulment, dissolution, or separation, it has power further to decree as follows:
‡ ‡ *
“(f) For the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances. A retirement plan or pension or an interest therein shall be considered as property. The court shall consider the contribution of a spouse as a homemaker as a contribution to the acquisition of marital assets. There is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held[.]”

In this case, the ranch was acquired during the marriage and, as a marital asset, is subject to the statutory presumption of equal contribution. Stice and Stice, 308 Or 316, 325, 779 P2d 1020 (1989). However, that presumption “may be overcome * * * by a finding that [the] property was acquired by one spouse by gift or inheritance, uninfluenced by the other spouse.” Jenks and Jenks, 294 Or 236, 241, 656 P2d 286 (1982). We conclude that wife has overcome the presumption as to the two-thirds interest that she inherited from her father, because it is apparent from the record that wife’s father did not intend husband to be a beneficiary of his devise. See Pierson and Pierson, 294 Or 117, 123, 653 P2d 1258 (1982) (holding that the presumption of the husband’s equal contribution by nonfinancial means was rebutted because the wife’s acquisition was by sole inheritance unaffected by the efforts of the husband).

[438]*438Nevertheless, as the court said in Jenks, “[ojvercoming the statutory presumption of equality of contribution does not end [the] inquiry.” 294 Or at 241. The statute requires us to provide a “just and proper” division or disposition of all the parties’ real property, whether held jointly or separately, and whether acquired before or during the marriage. In Jenks, the court faced a situation similar to this case.

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Related

In re the Marriage of Van Horn
57 P.3d 921 (Court of Appeals of Oregon, 2002)
In re the Marriage of Isham
917 P.2d 75 (Court of Appeals of Oregon, 1996)
In re the Marriage of Krutsinger
914 P.2d 1096 (Court of Appeals of Oregon, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
912 P.2d 925, 139 Or. App. 433, 1996 Ore. App. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-isham-orctapp-1996.