In re the Marriage of Kunze

47 P.3d 489, 181 Or. App. 606, 2002 Ore. App. LEXIS 858
CourtCourt of Appeals of Oregon
DecidedMay 29, 2002
DocketDO99-1014; A112487
StatusPublished
Cited by8 cases

This text of 47 P.3d 489 (In re the Marriage of Kunze) 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 Kunze, 47 P.3d 489, 181 Or. App. 606, 2002 Ore. App. LEXIS 858 (Or. Ct. App. 2002).

Opinion

BREWER, J.

Judgment of dissolution modified to award husband judgment in amount of $140,116 against wife plus simple interest at rate of nine percent per annum, payable in full on or before January 1, 2004; interest shall accrue from date of this decision but shall not be payable until principal balance is due; otherwise affirmed.

[608]*608BREWER, J.

Husband appeals from a judgment dissolving the parties’ 20-year marriage. He contends that the trial court erred in failing to include certain marital assets in the property division and in offsetting against his share of property an amount attributable to enhanced earning capacity from the college degree he obtained during the marriage. On de novo review, ORS 19.415, we modify the property division.

The parties were married in 1980 when wife was 29 and husband was 22. They separated in late 1999. At the time of the dissolution trial in August 2000, wife was 49 and husband was 42. Custody of their then 10-year-old daughter was awarded to wife. At the time of the marriage, wife was a college graduate and was employed as a speech pathologist; husband was working as a copier technician, earning approximately $1,000 per month. Before the marriage, husband had attended college for four years and had acquired some carpentry skills. Wife brought to the marriage a parcel of real property (the Germantown Road property) that contained two residences with an equity of $65,000. Wife also owned several small bank accounts, furnishings, and a car. Husband owned a car, subject to a loan, and some miscellaneous personal effects. He brought no real estate or any other asset of significant value to the marriage. From 1980 until 1983, the parties lived in one of the Germantown Road residences and rented the other. Although wife did not add husband’s name to the title of the Germantown Road property during that period, the rent from the property was deposited in a joint bank account and property expenses were paid from that account.

In 1983, wife’s aunt, Barbara Johnson, died. Johnson, a California resident, had been a successful businesswoman and real estate investor. She left a sizeable estate at her death. Wife and Johnson had been very close over the years, and wife was a significant beneficiary of the estate. In her will, Johnson devised her duplex residence and a parcel of commercial property (the National City property) to wife, as well as the duplex fiimishings and an interest in some bank accounts. Wife also was named as a co-personal [609]*609representative of Johnson’s estate. Because the estate largely was illiquid and its management was complex, the parties moved to California in 1984 so that wife could perform her administrative duties at close hand. In 1985, wife received the duplex and the National City property in a partial distribution from Johnson’s estate.1 Because those properties play a prominent role in husband’s appeal, we now trace their subsequent history in some detail.

Wife sold the duplex in 1985 for $450,000. The down payment of $125,000 was fully expended to pay off an encumbrance against the property and to pay the real estate commission incurred in the sale. Wife received a promissory note and trust deed to document and secure the $325,000 balance of the sale price. Wife received monthly payments on the note from 1985 until 1992. The payment proceeds were regularly deposited into the parties’joint bank account. The balance of the note, approximately $315,000, was paid in full in 1992. Approximately $170,000 of the balloon payment was used in 1993 for the outright cash purchase of a fourplex residential property in Beaverton (the Chaps Court property). The parties jointly acquired title to the Chaps Court property as tenants by the entireties. The duplex balloon payment also was used to pay off the encumbrance on the Germantown Road property and was applied toward the improvement of a residence that the parties had acquired in 1991 (the Calkins Lane property).

At the time of its distribution to wife, the National City property was leased to a commercial tenant on a triple-net basis. The lease expired in December 1999. The net monthly lease payments increased from $1,300 in 1985 to $2,551 in 1999. Wife never deeded an interest in the property to husband. However, the lease payments were regularly deposited into the parties’ joint account and were used for family purposes. After the lease expired, wife did not re-lease the property but, instead, attempted to sell it. In the meantime, wife made the tax and utility payments on the property from other financial resources. The property had not been [610]*610sold at the time of trial in August 2000. The parties stipulated that the National City property was worth $219,000 when wife received it in 1985 and that its value had increased to $324,000 at the time of trial.

In 1985, the parties moved to North Dakota so that husband could further his education at wife’s alma mater, North Dakota State University. The parties jointly acquired a residence in North Dakota, financing the purchase with funds from the Johnson estate.2 While husband was a student, wife obtained employment as a speech pathologist and supported the family through her earnings, the lease income from the National City property, the note payments from the sale of the duplex, and a small amount of rental income from the Germantown Road property.

Husband obtained a bachelor’s degree in construction management in 1990. The parties’ daughter was born in August 1990. In November, the parties returned to live in Oregon. They sold their North Dakota residence and, in 1991, used the proceeds as a down payment toward the acquisition of a new residence, the Calkins Lane property near Newberg. Their plan was for wife to remain at home with the child and for husband to find work suited to his education and training in the construction field. Husband started a fence-building business with his father and brother in 1991. That venture continued — with little economic success — until it closed in 1993. Husband earned $11,865 in 1991, $5,215 in 1992, and $4,300 in 1993. Husband did not earn any further employment income from 1993 until the time of trial.

Husband was seriously injured in a fall in December 1993 and was unable to work for the next 18 months. During that time, wife cared for the parties’ child, attended to husband, and managed the farm and investment properties. Following his recovery, husband worked on a property development project involving three lots in Newberg on which the parties built and sold homes. However, despite his own education and experience, husband hired a general contractor to [611]*611build the homes, and the parties ultimately lost money on the overall project. The parties had to obtain construction financing to complete the project, and it was necessary to provide a mortgage on the Germantown Road properly as security for the loan. Because husband was a joint owner of the project, the lender insisted that the parties also must co-own the collateralized Germantown Road property. As a consequence, wife deeded a joint ownership interest in that property to husband in 1995, and the parties owned that property as tenants by the entireties at the time of trial.

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Bluebook (online)
47 P.3d 489, 181 Or. App. 606, 2002 Ore. App. LEXIS 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-kunze-orctapp-2002.