In re the Marriage of Olson

178 P.3d 272, 218 Or. App. 1, 2008 Ore. App. LEXIS 163
CourtCourt of Appeals of Oregon
DecidedFebruary 13, 2008
Docket150601993; A133591
StatusPublished
Cited by50 cases

This text of 178 P.3d 272 (In re the Marriage of Olson) 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 Olson, 178 P.3d 272, 218 Or. App. 1, 2008 Ore. App. LEXIS 163 (Or. Ct. App. 2008).

Opinion

BREWER, C. J.

In this appeal from a dissolution judgment, husband assigns error to the trial court’s equal division of an 80-acre parcel of rural land that husband inherited from his father during the parties’ marriage. Husband asserts that the trial court failed to properly follow the property division template that the Supreme Court set out in Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004), and that, if the court had done so, it either would have altogether excluded the inherited property from division, or it would have awarded wife only a small portion of the property’s value. On de novo review, ORS 19.415(3), we modify the award of the inherited property and otherwise affirm.

Although we are exercising de novo review, “we defer to the trial court’s express and implied credibility findings.” Tomos and Tomos, 165 Or App 82, 87, 995 P2d 576 (2000). This is a case in which much of the evidence that the parties adduced was disputed, and the trial court made several express findings of fact. On appeal, the parties argue at length about the extent to which the trial court’s disposition of the inherited property may have depended on implied findings of fact that, in turn, relied on unstated credibility determinations. We take a cautious approach in that regard because, beyond its express findings, we cannot discern to what extent the trial court’s decision may have depended on implied findings of fact. Accordingly, we defer only to credibility determinations that the trial court necessarily made in connection with its express findings of fact.

The parties were married in July 1995, and the judgment dissolving their marriage was entered in September 2006. At the time of dissolution, husband was 42 years old, and wife was 36. They have two children, ages three and seven at the time of the dissolution. Wife was awarded custody of the children. Husband’s gross employment income was approximately $60,000 per year, and wife, who received a master’s degree during the marriage, earned about $41,000 per year.

[4]*4When the parties were married, husband’s father owned and lived on the property in dispute here, which consists of 80 acres of land, some improvements, and growing timber. Husband’s father lived in a dilapidated residence on the property; the primary value of the residence lay in its land use role in securing a grandfathered home site. Husband had a strained relationship with his father. However, husband was closer to his father than were any of the father’s other relatives. While the parties were married, husband performed tree harvesting, planting, and husbandry on the property, and wife also helped with some of the physical work on the property. The parties also camped on the property and used it for recreational purposes from time to time. In 1996, the parties discussed the possibility of buying the property from husband’s father through a land sale contract and building a house on the property. The transaction would have required some land use modifications, and wife spent considerable time and effort researching that issue. The parties spent approximately $3,000 in investigating and preparing for the transaction.

The parties’ relationship with husband’s father deteriorated in 1997, when an altercation between husband and his father resulted in the father’s obtaining a judicial restraining order against husband. Wife also had a falling out with husband’s father. Husband hired an attorney to make a claim against his father for services performed in relation to the property. In June 1997, the attorney sent a letter to husband’s father’s attorney in which, among other things, husband’s attorney stated that “[o]ver an approximately seven year period, [husband] and [wife] invested considerable time, effort, and expense into your client’s property and the harvesting of timber from that property.” As a consequence of the rift with husband’s father, the parties’ plans to move onto the property were shelved. Wife had nothing further to do with husband’s father. Eventually, husband and his father resumed a relationship of sorts, but they were not close.

Husband’s father died in 2000. Husband was the sole devisee under his father’s will and the personal representative of his father’s estate. The principal asset of husband’s father’s estate was the property in dispute here. In [5]*52002, husband executed a personal representative’s deed conveying the property to himself. The property was worth $330,000 at that time. Husband testified that he told wife that the property would be his alone; wife testified that husband did not place ownership of the property in their joint names because it would belong to both of them anyway.

During the period of estate administration, the parties intermingled their personal financial affairs with those of the estate. Husband sold some estate equipment and deposited the proceeds in the parties’joint account. The parties spent approximately $10,000 of their own funds to pay the estate’s attorney fees; husband claimed that he deposited $9,000 in social security benefits belonging to his father into the parties’joint bank account so as to “offset” that payment, but there is no documentary evidence that he did so. Wife paid approximately $3,000 from the parties’ joint funds for property taxes on the property; husband claimed that she “secretly” made the payment, but wife denied that the payment was surreptitiously made. After the property was distributed to husband, the parties also filed a joint income tax return for 2004, in which they claimed a $14,000 loss for the property as a farming operation.1 Among the deducted expenses were vehicle and fuel expenses, supplies, and utility bills for the property. The parties also performed substantial cleanup and garbage removal work on the property after husband’s father’s death. Finally, after husband’s father’s death, the parties resumed using the property as a private recreational area. At the time of trial, the property was worth $465,000.

The trial court made the following findings concerning the extent to which the property was integrated into the parties’ affairs after husband inherited the property:

“After the death of [husband’s father], I find that [wife] has been actively involved in efforts to complete the estate, to investigate the possibilities of the value of the property such as determining whether or not it might be eligible for a Measure 37 claim, whether or not there might be an easement available across the property to support such a claim. [6]*6She assisted to whatever extent- — -I find that she did assist in various other activities on the property, including fence building and to some degree removal of obnoxious weeds, blackberries. I find that she — and in part because of the use of the joint account, had enough participation with this property that while he says, today, that he didn’t want her to have any part of it, I find that it is a marital asset and it’s to be divided between these parties.”

(Emphasis added.) In making the quoted findings — especially the emphasized statement — the court appeared to adopt wife’s version of the facts to the effect that husband intended to integrate the property into the parties’ financial affairs, at least until their marriage failed. Because that determination necessarily depended on an assessment of witness credibility, we defer to the trial court’s assessment.

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Cite This Page — Counsel Stack

Bluebook (online)
178 P.3d 272, 218 Or. App. 1, 2008 Ore. App. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-olson-orctapp-2008.