In Re the Marriage of Jenks

640 P.2d 1032, 55 Or. App. 824, 1982 Ore. App. LEXIS 2293
CourtCourt of Appeals of Oregon
DecidedFebruary 8, 1982
Docket80-1581, CA A20529
StatusPublished
Cited by6 cases

This text of 640 P.2d 1032 (In Re the Marriage of Jenks) 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 Jenks, 640 P.2d 1032, 55 Or. App. 824, 1982 Ore. App. LEXIS 2293 (Or. Ct. App. 1982).

Opinion

*826 JOSEPH, C. J.

In his appeal from a dissolution decree, husband maintains that the trial court erred in awarding wife the family home and requiring him to pay $300 per month spousal support for 10 years and $500 per month total child support. Wife cross-appeals, contending that it was error to award joint custody of the parties’ minor children and to limit the location of the children’s permanent residence.

The decree ended the 13-year marriage of husband, age 34, and wife, age 33. The parties have four children, who were ages 12, 11, 5 and 3 at the time of the hearing. Husband has a college degree in business administration, and wife, a high school graduate, some years ago completed a five-month course of training to be a dental assistant.

Husband is vice-president of Jenks-White Seed Company, a closely held family corporation. In 1979, he received a salary of $21,500, a bonus of $1,500, and $2,700 in Naval Reserve pay. 1 After two and one-half more years of Naval Reserve duty, he will qualify for retirement benefits (which will mature when he reaches 60) of about $350 per month. He also has a vested but unmatured interest in the company’s retirement plan. Except for the first year of the marriage, wife has not worked outside the home.

The parties began their marriage with no substantial assets. In 1973, they moved into a dilapidated farmhouse owned by husband’s father and grandmother that had “blackberry vines in the stairways and rats in the attic.” It was built in 1852 and had always been in husband’s family. In 1974, the house and 10 adjoining acres were deeded to husband as a gift from his father and grandmother. The next year, the grandmother deeded husband an additional 67 acres of land. These properties are held in husband’s name alone. 2 In 1977, the house and the *827 77 acres were mortgaged in order to remodel the farmhouse and to purchase an additional 97 acres from husband’s stepmother. The loan was taken in both parties’ names, and title to the new acreage is held by husband and wife jointly. The balance on the loan at the time of the hearing was $122,430.57, with annual payments of about $10,450. One hundred sixty-four acres of the property are rented out at $40 per acre, and the income has been applied to the mortgage, leaving a net difference of about $350 payable each month on the mortgage.

The trial court awarded wife the home and 10 acres, valued at $158,480, a savings account of $1,040, a 1978 Dodge, the household goods and furnishings, some personal property and antiques. Husband was awarded the remaining 164 acres of real property, valued at $287,000, a savings account of $4,200, a 1951 Chevrolet, a 1929 Plymouth, a boat, tools, and some personal property and antiques. He was also awarded bank stock worth between $3,960 and $4,300 and his remainder interest in 300 shares of the Jenks-White Seed Company. 3 Husband was ordered to make the mortgage payments on all of the real property and the payments on wife’s car. Assuming no value attributable to the company’s stock or husband’s retirement plan, the result was an approximately equal division of the property. 4

The court also awarded the parties joint custody of their children with “residential custody” to mother and, as a condition of mother’s custody, required that she maintain residence in Linn or Benton counties. Husband was ordered to pay $300 per month spousal support for 10 years and $125 per child per month child support and to maintain medical and dental insurance for the children.

*828 PROPERTY DIVISION

Husband contends that, in light of the court’s requirement that he make monthly spousal and child support payments in addition to the mortgage payments on the farmhouse, the award to wife of the house and surrounding 10 acres was inequitable. While it may in practice be difficult to separate property division and support provisions in fashioning an equitable settlement of the parties’ affairs, Grove and Grove, 280 Or 341, 571 P2d 477, modified 280 Or 769, 572 P2d 1320 (1977),

“[f]rom an analytical point of view, however, the property division should, when possible, be determined independent of spousal support, considering above all the parties’ contributions to acquisition of their assets. Overall equity of the dissolution can thereafter be best achieved by allowing or disallowing spousal support in light of the parties’ respective property rights and any continuing need of a party. See Kathrens and Kathrens, 47 Or App 823, 615 P2d 1079, rev den (1980) ***; ORS 107.105(l)(c)(E)(H).” (Footnote omitted.) Engle and Engle, 52 Or App 561, 572, 629 P2d 397 (1981).

As a general rule, when marriages of long duration are dissolved, the parties should share equally in the division of the marital assets. Kathrens and Kathrens, 47 Or App 823, 828, 615 P2d 1079, rev den 290 Or 211 (1980); Glatt and Glatt, 41 Or App 615, 622, 598 P2d 1237 (1979). The rule can also apply to a marriage that has lasted 13 years, a “significant period of time.” See Norris and Norris, 51 Or App 43, 51, 624 P2d 636, rev den 291 Or 151 (1981). However, the rule is a general one, and the source of the family assets is a relevant factor in their division, though not necessarily dispositive. Frishkoff and Frishkoff, 45 Or App 1033, 610 P2d 831 (1980); Sellers and Sellers, 39 Or App 647, 593 P2d 1191, modified 41 Or App 13 (1979); Pullen and Pullen, 38 Or App 137, 140, 589 P2d 1145, rev den 286 Or 449 (1979). The mere fact that property was inherited by or given to one party does not prevent its division upon dissolution. Cook and Cook, 29 Or App 171, 174, 562 P2d 601, modified 280 Or 589, 572 P2d 312 (1977); Dietz and Dietz, 271 Or 445, 553 P2d 783 (1975); Rinehart and Rinehart, 26 Or App 513, 552 P2d 1346, rev den 276 Or 387 (1976); see Beers and Beers, 31 Or App 1273, 572 P2d *829 364 (1977); see also, Warner and Warner, 39 Or App 755, 593 P2d 1236, rev den 287 Or 1 (1979).

At trial, husband testified that the couple decided to make their home in his family’s farmhouse

“* * * as we felt it was a good part of our heritage, our family, and I wanted our kids raised in the country.”

He proposed at trial that the court award him all of the real property, including the family home, and that wife be allowed rent-free use of the home for 10 years. 5 He was willing to pay $450 per month total child support and to keep up the monthly $134 payments on wife’s car.

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Related

In re the Marriage of Klock
733 P.2d 65 (Court of Appeals of Oregon, 1987)
State v. West
688 P.2d 406 (Court of Appeals of Oregon, 1984)
In re the Marriage of Hulsey
675 P.2d 1131 (Court of Appeals of Oregon, 1984)
Matter of Marriage of Jenks
656 P.2d 286 (Oregon Supreme Court, 1982)
Matter of Marriage of Engle
646 P.2d 20 (Oregon Supreme Court, 1982)

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Bluebook (online)
640 P.2d 1032, 55 Or. App. 824, 1982 Ore. App. LEXIS 2293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-jenks-orctapp-1982.