In re the Marriage of Lind

139 P.3d 1032, 207 Or. App. 56, 2006 Ore. App. LEXIS 1077
CourtCourt of Appeals of Oregon
DecidedJuly 26, 2006
Docket03 30074; A126809
StatusPublished
Cited by26 cases

This text of 139 P.3d 1032 (In re the Marriage of Lind) 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 Lind, 139 P.3d 1032, 207 Or. App. 56, 2006 Ore. App. LEXIS 1077 (Or. Ct. App. 2006).

Opinions

SCHUMAN, J.

Husband appeals from a general judgment dissolving his marriage. In particular, he disputes the trial court’s division of two items of marital property (an investment account and a house), the amount and duration of spousal support that the court ordered him to pay wife, and the court’s ruling that he had to pay $3,206 toward wife’s costs and attorney fees. We modify the property division and otherwise affirm.

I. FACTS

On de novo review, we find the following facts, giving due deference to the trial court’s implied credibility findings. ORS 19.415(3); Tomos and Tomos, 165 Or App 82, 87, 995 P2d 576 (2000). At the time that their marriage was dissolved, wife was 39 and husband was 51. Wife had a teenaged son from an earlier marriage. The relationship between husband and wife can be divided chronologically into two relevant periods. The first began in February 1994, when, after a three-year long-distance relationship, wife moved with her son from Florida to California to live with husband in his apartment. Husband at that time was employed as an accountant and also had an investment portfolio worth $330,353 that had been given to him by his parents in 1973. When she moved in with husband, wife had very few personal belongings and no debt; having left her employment in Florida, her only source of income was $55 per week in child support from her son’s father. Several months after moving in with husband, wife found employment and, because she did not have a checking account, she signed over to husband all of her employment income, as well as her child support income. The money went into husband’s individual checking account, from which he paid for household needs. During that time, wife also cooked, cleaned, cared for her son, and otherwise maintained the home.

The parties lived in California until July 1996, when they relocated to Oregon. At first, they lived in rentals. Wife continued to contribute her employment income and child support (which, by that time, had increased to $100 per week) [59]*59to household expenses, but husband’s income paid for the rent and most of the couple’s other needs. Together, husband and wife looked for and purchased (with husband’s money) a residential lot (the Corvallis lot) in December 1997, intended for the future construction of a home. Husband paid for the lot with $92,000 taken from his investment portfolio, and it was titled in his name alone.

Some time before spring of 1998, the parties decided to marry. In late March or early April, husband presented wife with a prenuptial agreement. Wife elected to discuss it with her attorney and, as a result of that consultation, suggested changes that would have allowed for an equitable allocation of assets that had been acquired during the parties’ preceding four-year cohabitation. Husband never agreed to those changes, however — at least not in writing — and, in any event, the document was never signed. Shortly thereafter, in April 1998, the parties married. That event marks the start of the second period in the parties’ relationship.

When the parties married, husband’s investment portfolio had increased in value by $942,409 and was valued at $1,272,762. At some point after marriage, husband made wife an authorized signer on his credit card, and husband and wife opened a joint bank account into which wife’s employment paycheck was automatically deposited. Husband typically deposited between $1,000 and $1,500 per month into that joint account, from which the parties paid for household expenses such as credit card bills, gas, food, wife’s son’s needs, and automobile insurance. Husband also maintained an individual checking account into which he deposited the remainder of his employment income as well as half of the dividends he received from his investment portfolio, approximately $550 per month. The remaining half was reinvested.

From his individual account, husband paid the mortgage and insurance on the house that was built on the Corvallis lot shortly after the parties married. The title and mortgage were in husband’s name alone, although wife did not discover that fact until September 2001, when husband [60]*60refinanced the home. The down payment and part of the construction costs, $100,000, came entirely from husband’s investment portfolio.1 Wife provided significant input regarding the design and decoration of the house, although husband had more interaction with the contractor and subcontractors than did wife.

Husband filed for dissolution of the marriage in February 2003. By that time, the value of husband’s investment portfolio had fallen to $671,514.2 In November 2004, the court entered a general judgment of dissolution. Husband received as separate property the value of his investment portfolio at the time the parties’ cohabitation began. The court treated the appreciation in value of the portfolio during cohabitation and marriage, as well as the Corvallis residence, as marital assets, and determined that, with respect to them, husband did not overcome the presumption that wife contributed equally to their acquisition; it therefore totaled their value — $341,211 in portfolio appreciation and $220,000 in equity in the home, or $561,211 — and awarded each party half, or $280,605. The court also awarded wife an additional judgment of $30,282.50 to equalize the division of other assets, spousal support in the amount of $500 per month for three years or until the equalizing judgment was paid in full (whichever came first), and $3,206 in attorney fees and costs. Husband, as noted above, assigns error to the property division, the amount and duration of spousal support, and the award of attorney fees to wife.

II. PROPERTY DISTRIBUTION

A. Method of analysis

In dividing the parties’ property, we follow ORS 107.105(l)(f)3 as construed in Kunze and Kunze, 337 Or 122, [61]*6192 P3d 100 (2004). Under that case, we undertake a structured series of inquiries, described and elaborated by the Supreme Court as follows:

“Because ORS 107.105(l)(f) distinguishes between property brought into the marriage and marital assets, the court’s first step in applying that statute is to determine when the parties acquired the property that is at issue. If the parties acquired the property at issue before the marriage, then the court considers only what is ‘just and proper in all the circumstances’ in distributing that property. ORS 107.105(l)(f).
“If a party establishes that the property at issue is a marital asset, however, then the court must apply the rebuttable presumption of equal contribution under ORS 107.105(l)(f) as its next step in the analysis. * * * [T]he presumption directs the court that, unless proven otherwise, the court must find that both parties have contributed equally to the acquisition of marital assets.

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Cite This Page — Counsel Stack

Bluebook (online)
139 P.3d 1032, 207 Or. App. 56, 2006 Ore. App. LEXIS 1077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-lind-orctapp-2006.