In re the Marriage of Sauver

100 P.3d 1076, 196 Or. App. 175, 2004 Ore. App. LEXIS 1467
CourtCourt of Appeals of Oregon
DecidedNovember 10, 2004
Docket15-00-24660; A117317
StatusPublished
Cited by11 cases

This text of 100 P.3d 1076 (In re the Marriage of Sauver) 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 Sauver, 100 P.3d 1076, 196 Or. App. 175, 2004 Ore. App. LEXIS 1467 (Or. Ct. App. 2004).

Opinion

ARMSTRONG, J.

Husband appeals from a judgment that modified an original dissolution judgment by reallocating property between the parties and by increasing the award of child support to wife. He also appeals from a contempt judgment and from associated judgments for attorney fees. On de novo review, ORS 19.415(3) (2001),1 we reinstate the original property award, vacate and remand the child support award for recalculation, affirm the contempt judgment, and vacate and remand one of the two attorney fee judgments.

The parties were married in 1994. The comb entered a judgment in January 2001 that dissolved the parties’ marriage. The dissolution judgment incorporated a marital settlement agreement (MSA) that both parties signed. The MSA was drafted by husband’s counsel; wife had no legal representation. The judgment was taken by default.

At the time of dissolution, the parties had two children together, and wife had one child from a prior marriage. The marital assets included two homes, two cars, husband’s PERS account, and miscellaneous personal property; liabilities included mortgages on both properties and various consumer debts. The original judgment awarded the parties joint custody of their children and awarded wife $630 per month in child support and certain personal property. The judgment required wife to transfer all interest in the two houses and the two cars to husband and required husband to [178]*178hold wife harmless from any mortgages, taxes, and other debts associated with those assets. The judgment also awarded the PERS account to husband and required husband to pay wife’s rent for a six-month period. No spousal support was awarded. Miscellaneous consumer debts were divided between the parties.

In July 2001, wife filed two motions for show cause orders. One sought modification of the dissolution judgment; the other sought an order finding husband in contempt for violating provisions of the dissolution judgment involving wife’s conditional use of one of the vehicles and her right to reclaim personal property from the parties’ former residence. The matter proceeded to trial, after which the court entered four judgments. A modification judgment awarded wife sole legal custody of the parties’ children, but it maintained the equal parenting time awarded in the original judgment. It also increased child support to wife from $630 per month to $1,000 per month, awarded wife a one-half interest in the portion of husband’s PERS account benefits that had accrued during the parties’ marriage, and awarded wife one of the houses, subject to encumbrances. A contempt judgment awarded wife $1,000 for personal property that husband had refused to permit wife to reclaim and $6,000 for an automobile that husband had repossessed. The third and fourth judgments awarded wife attorney fees for the modification and contempt proceedings respectively.

In his first assignment of error, husband challenges the trial court’s redistribution of assets, asserting first that the court had no authority to modify the original property division. Generally, a property division in a dissolution judgment is beyond the power of a court to modify. E.g., Spady v. Graves, 307 Or 483, 488-89, 770 P2d 53 (1989); Murray and Murray, 120 Or App 216, 218, 852 P2d 204 (1993); see also Prime v. Prime, 172 Or 34, 49-50, 139 P2d 550 (1943) (articulating the same principle, in dictum, as a matter of common law). The statute that governs the modification of dissolution judgments, ORS 107.135, gives courts authority to modify property awards entered before October 23, 1999, that were based on a party’s enhanced earning capacity, but that provision is inapplicable to this case.

[179]*179Wife argues, however, that the MSA that was incorporated in the dissolution judgment gave the court the authority to modify the original property award. Paragraph 19 of the MSA provides, in part:

“19. FULL DISCLOSURE
“19.1 Each party represents to each other:
“19.1.1 That each has disclosed to the other all assets and obligations of the parties or of either of them within the partjf s knowledge;
“19.1.2 That neither has interest whatsoever in any property or asset of any kind other than the assets listed in this agreement;
“19.1.3 That neither has unreasonably overstated or understated the value of any asset or the amount of any obligation; * * *
«:£ ❖ ‡ Hí
“19.2 In the event either party fails to comply with the above, the parties agree that the dissolution proceeding may be reopened by the court to alter the distribution of assets and to modify any award of support and the non-complying party shall be required to pay the other party’s attorney fees and costs incurred therein.”

(Emphasis added; underscoring in original.) Wife maintains that husband ran afoul of that provision by providing inadequate and misleading disclosures about the value of certain assets. She contends, therefore, that the court had authority under the provision to modify the property award.

Husband responds that an MSA provision that is incorporated into a dissolution judgment cannot give a court authority to modify a property division that would not otherwise be subject to modification. He cites Spady as support for that proposition. The Supreme Court explained its holding in Spady as follows:

“ORS 107.135(l)(a), upon which [wife] relies, authorizes a circuit court to modify spousal and child support provisions, but it does not authorize modification of a property division incorporated in a dissolution decree. Although [the parties], as between themselves, could agree to modify the property [180]*180division (as they did), the circuit court did not have authority to modify the property division incorporated in the dissolution decree. * * * Thus, the circuit court, in modifying the property division of the original decree, acted beyond its authority; the parts of the modification order purporting to modify the property division of the original decree are void.”

307 Or at 488-89 (citations omitted).

Spady is distinguishable from this case. Spady did not involve, and the Supreme Court did not address, the enforceability of a modification provision of an MSA that was incorporated into an original dissolution judgment. In Spady, the parties’ agreement occurred after entry of the dissolution judgment. 307 Or at 486. The original judgment contained no provision, such as the one at issue here, that gave the court authority to modify the property distribution.

When an MSA is incorporated into a judgment, its provisions are generally given effect. See, e.g., McDonnal and McDonnal, 293 Or 772, 652 P2d 1247 (1982) (approving modification of spousal support provisions in the absence of changed circumstances); Eidlin and Eidlin, 140 Or App 479, 916 P2d 338 (1996) (upholding unorthodox stipulation as to developments to be treated as changes in circumstances).

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Bluebook (online)
100 P.3d 1076, 196 Or. App. 175, 2004 Ore. App. LEXIS 1467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-sauver-orctapp-2004.