In re the Marriage of McLauchlan

206 P.3d 622, 227 Or. App. 476, 2009 Ore. App. LEXIS 276
CourtCourt of Appeals of Oregon
DecidedApril 15, 2009
Docket024294D3; A134002
StatusPublished
Cited by1 cases

This text of 206 P.3d 622 (In re the Marriage of McLauchlan) 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 McLauchlan, 206 P.3d 622, 227 Or. App. 476, 2009 Ore. App. LEXIS 276 (Or. Ct. App. 2009).

Opinion

ROSENBLUM, J.

In this appeal from a judgment of dissolution of marriage and a supplemental judgment, husband challenges the trial court’s property distribution and its award of spousal support to wife. In particular, husband asserts that the court erred in (1) entering a supplemental judgment incorporating wife’s proposed plan for refinancing the parties’ real property (the Butte Falls property or the property) to pay husband his share of the equity in the Butte Falls property; (2) valuing the Butte Falls property at $296,520 and awarding it to wife, rather than ordering it sold and the net proceeds equitably divided; and (3) ordering husband to pay wife maintenance spousal support and in reducing that support obligation to a “lump sum present value.” On de novo review, ORS 19.415(3), we affirm in all respects.

I. FACTUAL BACKGROUND

We begin with an overview of the facts, but supplement those facts in more detail as necessary in the context of the relevant assignments of error.

Husband and wife met in 1975 and lived together in Poway, California, until July 1978. Wife worked in a retail clothing store and husband was a part-time brand inspector. In 1978, wife moved to Oregon with husband’s mother. Husband remained in California to help develop ranch property that he had received from his family in 1975 (the Poway property). Wife took care of husband’s mother and earned money selling firewood from the property in Oregon where they were living. Husband visited and occasionally sent wife money.

In July 1982, a month before the birth of their second child, the parties married. They signed a prenuptial agreement expressing their intent to retain their respective separate property rights in the property they each owned at the time.1 The agreement also stated that either spouse could make additional gifts to the other and that such gifts would become the separate property of the receiving spouse. After [479]*479their marriage, husband continued to live in California and work on developing the Poway property. The parties eventually had a total of six children together, two of whom were minors (ages 11 and 16) at the time of trial.

In 1987, wife moved to the Butte Falls property with the children and her mother-in-law. The Butte Falls property, which consisted of five separate tax lots totaling approximately 117 acres, was purchased for $100,000 cash and titled solely in wife’s name. According to wife, the money to purchase the property came from refinancing the Poway property. Husband testified that he had the Butte Falls property titled in wife’s name alone because he wanted to protect it from attachment by his creditors; wife testified that it was put in her name “in case anything happened to him, that the kids and I would have some place to live.” Wife and the parties’ two minor children were living on the Butte Falls property at the time of trial.

From 1987 until 1995, when wife started working as a school bus driver, wife sold firewood from the Butte Falls property for income. Wife then worked part time as a school bus driver from 1995 until 2003. She accumulated a small retirement (PERS) account during that employment. In 2002, she obtained her real estate license and, in 2003, began working as a commission-based real estate agent.

Meanwhile, during much of this time, husband was still living in California and working on developing the Poway property. In 1990, he entered into a partnership in connection with that property; his partner apparently loaned the partnership over $2 million to pay off debt on the Poway property. In 1992, husband’s partner filed suit against both husband and wife, and the partnership was dissolved. Kauffman, the attorney who represented husband and wife in that litigation, eventually obtained separate judgments against each of them for unpaid legal fees.

In late 1996, after losing the last of the Poway property, husband moved to Oregon and lived with the family on the Butte Falls property. He worked as a school bus driver and also sold cars for a period. In 2002, he, too, obtained a real estate license, and he began selling real estate that year.

[480]*480II. TRIAL COURT PROCEEDINGS

Wife filed a petition for dissolution in December 2002. In October 2004, after Kauffman obtained a judgment lien on the Butte Falls property and began foreclosure proceedings, wife filed a voluntary petition for bankruptcy under 11USC section 362 (chapter 13).2 That action was pending in federal bankruptcy court when the trial began on October 28, 2005; some documents related to it were admitted into evidence as wife’s exhibit 7. The parties’ assets at the time of trial consisted of the Butte Falls property (subject to various encumbrances); an array of vehicles, farm equipment, and other personal property; and wife’s PERS account (which contained a balance of less than $8,000).

In her trial memorandum and at trial, wife argued that the Butte Falls property was a gift and, thus, under the parties’ prenuptial agreement, should be awarded to her as her separate property. Husband’s position was that the Butte Falls property was a marital asset; he proposed that it be sold and the proceeds be divided between them in accordance with a plan that he submitted with his trial memorandum. At trial, he expressed concern that, if he were awarded an equalizing money judgment instead, that judgment could be discharged in wife’s bankruptcy.

After wife and husband had each presented their case, the following colloquy occurred:

“THE COURT: Has the Bankruptcy Court put a value on the Butte Falls property? Has anyone put a value on the—
[481]*481“[Wife’s counsel]: —[N]o recent appraisal.
“THE COURT: I would think if you wanted to hold on to it, you’d want me to know what it’s worth, right?
“[Wife’s counsel]: Well, only if it was totally going to her. But obviously if it’s going to — the reality of it, Your Honor, is that * * * she recognizes that the Court determines it to be a marital asset. The only choice is to sell it, I think with the way things are.
“[Husband’s counsel]: And in all fairness to Counsel, there is some value assigned to it. It’s in the bankruptcy documents, which have been admitted into evidence and including of which should be — or maybe it isn’t. But there was a value assigned by Petitioner in her bankruptcy concerning this asset. And it should be in the bankruptcy documents they have submitted. And if I can find it I will notify you where it’s located.”

After some further discussion, the court noted that a schedule included with those documents, which had been admitted as wife’s exhibit 7, indicated that the value of the Butte Falls property was “almost $300,000.” Wife agreed that “[t]hat would be the right number,” but added, “[tjhat is a very, very, very low estimate” as to the Butte Falls property’s value as of a year before trial. Husband did not object to the court’s use of that estimate, nor did he request to offer his own evidence on that issue.

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Related

In the Matter of McLaughlin and McLaughlin
206 P.3d 622 (Court of Appeals of Oregon, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
206 P.3d 622, 227 Or. App. 476, 2009 Ore. App. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-mclauchlan-orctapp-2009.