In re the Marriage of Jones

17 P.3d 491, 172 Or. App. 199, 2001 Ore. App. LEXIS 81
CourtCourt of Appeals of Oregon
DecidedJanuary 31, 2001
Docket97-DO-0594-AB; CA A108877
StatusPublished
Cited by3 cases

This text of 17 P.3d 491 (In re the Marriage of Jones) 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 Jones, 17 P.3d 491, 172 Or. App. 199, 2001 Ore. App. LEXIS 81 (Or. Ct. App. 2001).

Opinion

EDMONDS, P. J.

Husband appeals from the trial court’s denial of his motion for reduction or termination of his $517 monthly indefinite spousal support obligation. ORS 107.135. He contends that the trial court erroneously excluded evidence of the parties’ current and marital standards of living. He also argues that the trial court did not properly consider the effect of wife’s remarriage and her new spouse’s income in evaluating whether there had been a substantial change of circumstances. We review de novo, ORS 19.415(3), and modify the judgment.

The parties were married for 12 years and their marriage was dissolved in December 1997. At that time, both parties were of retirement age. Both parties’ sole source of income was from retirement benefits. Husband’s monthly income was $1,632. Wife’s monthly income was $635. The parties received equal shares of property valued at approximately $100,000 each. In the judgment of dissolution, husband was ordered to pay $517 per month to wife in spousal support for an indefinite time. Under the court’s award, husband had $1,115 of income per month left after paying spousal support, and wife had $1,152 per month, including spousal support.

Wife remarried 18 months after the dissolution. Her new spouse has $1,049 in monthly income from social security benefits. Both wife and her spouse have worked sporadically after their marriage, but neither is currently working. Neither husband nor wife remained in the parties’ marital residence. Wife purchased the residence in which she and her spouse live. Neither party has had a significant increase in expenses since the judgment. Husband has begun to receive interest income from his portion of the property award in the amount of approximately $1,000 per year. Wife did not offer evidence as to interest or investment income from her share of the property award. Her banking records show monthly deposits and withdrawals that appear to reflect a household income significantly higher than that to which she testified.

In the hearing that led to this appeal, husband petitioned the trial court for a reduction or termination of his [202]*202spousal support obligation. He argued that wife has additional income available to her because of her remarriage, which reduces or negates her need for support from him. At the hearing, husband offered evidence of the parties’ standard of living during the marriage, of their current standards of living and of the purposes and goals of the spousal support award at the time of the initial judgment. However, the trial court excluded evidence of the parties’ past and current standards of living.

After hearing the evidence, the trial court found that the parties’ initial spousal support judgment was an attempt at an equalization of the parties’ income at the time of the judgment. It found that the parties’ retirement income had not increased and that both parties had some limited interest income from their respective shares of the division of marital assets. It found that

“[Husband] failed to prove a substantial change in circumstances justifying modification of the spousal support judgment. The initial purpose of the award was to equalize the income between the parties. The only change in circumstances is [wife’s] remarriage to a 70 year old retiree with an income limited to social security benefits. [Wife’s] standard of living has not improved over that which she enjoyed while married to [husband].”

Consequently, the court denied husband’s motion for modification or termination of spousal support and awarded wife attorney fees.

The first question before us is whether the trial court erred in excluding evidence of the parties’ past and current standards of living. Husband sought to introduce evidence of how often the parties took vacations, ate at restaurants, and engaged in social activities during the last few years of their marriage. He also elicited testimony about wife’s current social and economic activities to show that her standard of living had increased after her marriage to her new husband. Wife objected to the evidence on relevance grounds.

The threshold issue before a trial court in a modification proceeding is whether there has been a substantial [203]*203unanticipated change in either party’s economic circumstances since the date of the judgment. ORS 107.135. Evidence that is relevant to that inquiry is any evidence that tends “to make the existence of any fact that is of consequence * * * more probable or less probable than it would have been without the evidence.” OEC 401. Evidence that is relevant under that definition should be admitted, in the absence of another reason for exclusion. OEC 402. A fact of significant consequence in this case is wife’s economic circumstances, both presently and at the time of the judgment. Given that wife’s reports of her present lifestyle and documented income are subject to question on this record, the proffered evidence was relevant to establish a change in economic circumstances, and its exclusion was error.1

Because we have the benefit of the excluded evidence, we continue our de novo review with it as part of the record. At the time of the judgment, wife had $635 in income and $517 in spousal support for a total household monthly income of $1,152. She supported only herself with that amount. After her remarriage, wife continues to receive $635 in retirement income. In addition, at least some portion of her spouse’s monthly income is potentially attributable to her. Hoag and Hoag, 152 Or App 288, 291, 954 P2d 184 (1998).

Husband argues that when wife’s income of $635 is added to her spouse’s income of $1,049, they have a combined income of $1,674 or greater, which is more than wife’s income after the judgment. Husband’s calculation is partially consistent with the reasoning we used in Bliven and Bliven, 106 Or App 93, 96, 806 P2d 177 (1991), and he argues that the decision in this case is controlled by Bliven. Wife argues, however, that she should not be credited with any portion of her spouse’s income that he withholds from their household to pay for his personal expenses. She contends that his contribution to their household is really only $624, because he first pays his own golfing expenses, medical bills, clothing and credit card bills from his monthly income and only makes the remainder available to the household. She calculates that if [204]*204her income of $635 is added to her spouse’s contribution of $624 to household expenses, and then divided in half, her half of that amount is actually $630, or less than she was receiving as income at the time of the judgment. On appeal, wife contends that our decision in Hall and Hall, 86 Or App 51, 55, 738 P2d 218 (1987), governs the calculation in this case. Bliven and Hall employ different methodologies to arrive at their results.

We have emphasized in the past that “modification of a spousal support award is not a matter of applying a mathematical formula[.]” Hoag, 152 Or App at 293. Hoag

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Bluebook (online)
17 P.3d 491, 172 Or. App. 199, 2001 Ore. App. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-jones-orctapp-2001.