In re the Marriage of Shelley

873 P.2d 464, 127 Or. App. 616, 1994 Ore. App. LEXIS 671

• Court: Court of Appeals of Oregon
• Decided: April 27, 1994
• Docket: 92-04-24, 789-E; CA A79125
• Status: Published

Opinion

PER CURIAM

Wife appeals from a dissolution judgment. She contends that the trial court erred in its division of the property.¹ On de novo review, we conclude that the trial court erred in failing to make an adjustment to the division based on a $37,500² payment that husband made to his brother shortly before trial.

Husband gave the money to his brother, allegedly in payment of several overdue installments on a note. The trial court found, and we agree, that the payment was a sham designed to reduce assets for the purpose of this dissolution. The fact that the money was income from separate property does not change the fact that it was marital income and, therefore, marital property. Stice and Stice, 308 Or 316, 325, 779 P2d 1020 (1989). As a result, the money paid to husband’s brother should have been included in the property distribution. Howard and Howard, 103 Or App 342, 349, 798 P2d 683 (1990). Under the circumstances, we conclude that wife should receive one-half of the $37,500.³

Remanded with instructions to enter modified judgment awarding wife an additional judgment against husband for $18,750; otherwise affirmed. Costs to wife.

1 Wife’s arguments challenging the amount and duration of spousal support awarded and the failure to order husband to carry life insurance with her as a beneficiary do not require discussion.

2 The trial court stated this amount as $35,000 in its written opinion. However, husband indicated that that figure was only an estimate, and later read the $37,500 amount into the record from the cancelled check.

3 Husband does not argue that the money came from a nonmarital source, nor does he argue that he rebutted the equal contribution presumption as to it.