In re the Marriage of Shlitter

71 P.3d 154, 188 Or. App. 277, 2003 Ore. App. LEXIS 710
CourtCourt of Appeals of Oregon
DecidedJune 12, 2003
Docket99-2684-D-2(1); A113854
StatusPublished
Cited by15 cases

This text of 71 P.3d 154 (In re the Marriage of Shlitter) 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 Shlitter, 71 P.3d 154, 188 Or. App. 277, 2003 Ore. App. LEXIS 710 (Or. Ct. App. 2003).

Opinion

BREWER, J.

Husband appeals from a judgment dissolving the parties’ 17-year marriage. He contends that the trial court erred in failing to divide the parties’ marital debts equitably and in providing for an automatic future increase in bis child support obligation.1 On de novo review, ORS 19.415(3), we modify the division of debts and the child support obligation.

The parties were married in 1982. Husband filed a petition for dissolution in October 1999. At that time, wife was 44 and husband was 43. They had two children, ages 8 and 11. Custody of the children was awarded to wife. While they were married, husband was self-employed as a construction contractor. Although his income varied, the trial court found that the income averaged $5,000 per month. Wife managed a retail store that the parties also owned, but it was not profitable. After a preliminary hearing, the trial court authorized husband to sell the store.2 Wife occasionally worked for the new owner as a consultant, but she no longer managed the business.

The parties moved to Oregon from Hawaii in 1993. At the time, they owed husband’s mother (Shlitter) $350,000 for loans that she had made to them for real estate investments in Hawaii. The parties liquidated those investments when they moved to Oregon. They repaid part of the loans in cash but used $185,000 to purchase a residence for Shlitter in Grants Pass. The parties took title to that property in their own names, not Shlitter’s. At trial, Shlitter testified that she agreed that the Grants Pass residence could be conveyed to [280]*280the parties “because they [are] young, they know what to do, how to, how to—I let them have it and maybe sometime I come here and retire, and that’s it.” The parties rented the residence to a third party. Initially, the monthly rent payments were paid to Shlitter, but when the parties’ retail business began to suffer financial problems, Shlitter allowed them to keep the rent. After the parties separated, they conveyed the Grants Pass residence to Shlitter.

During their marriage, the parties received three additional advances from their parents that are relevant to the division of their finances. Wife’s parents loaned them $25,000.3 In addition, Shlitter loaned them $40,000 in 1994 so they could purchase an undeveloped parcel known as the Whitmore property. In 1995, Shlitter advanced an additional $105,000 to the parties with the understanding that they would use the money to build two houses on the Whitmore property, one for themselves and the other for her. The houses were never built.

In her trial memorandum, wife acknowledged that each of the three above-mentioned advances constituted debts of the marriage. However, in closing argument at trial, wife contended that the evidence was unclear as to whether Shlitter expected repayment of the $105,000 advance. Wife proposed that, if payment of the $105,000 and $25,000 debts were sought thereafter, each of the parties should be solely responsible for the debt owed to his and her own parents.

The trial court adopted wife’s proposal, stating, “The issue of the parties’ indebtedness to their families is always difficult to sort out. I order that each party be responsible for the debts to their respective families.” However, the court awarded the Whitmore property to wife, subject to the $40,000 debt owed to Shlitter for the funds she advanced to acquire that property. The court divided the parties’ assets and liabilities as follows:

[281]*281Assets Wife Husband
Marital home $176,000
Whitmore parcel 90,000
Personal property 36,410
Rental house $104,000
Rental duplex 170,000
Personal property 27,000
Husband’s business 10,000
Gross Assets $302,410 $311,000
Liabilities
Encumbrance on marital home $100,000
Encumbrance on Whitmore 54,000 parcel4
Encumbrance on rental duplex $135,000
Consumer debts _ 35,400
Gross Liabilities $154,000 $170,400
Net Award $148,410 $140,600

To offset the difference between the net awards, the court ordered wife to pay husband $7,410.5 However, the net awards did not take into account the amounts of family indebtedness that were assigned to each of the parties. If those debts were included in the calculus, husband’s net financial award would be $80,000 less than the award to wife ($105,000 minus $25,000).

The court ordered husband to pay wife maintenance spousal support for eight years in the amount of $1,200 per month for the first five years and $1,000 per month for the remaining three years. It also ordered him to pay $670.45 per month for child support for the first five years, after which the amount is scheduled to increase to $710.35 per month until each child reaches the age of majority or is otherwise [282]*282emancipated. The court calculated the level of child support for the first five years based on the parties’ potential incomes at the time of dissolution, adjusting each party’s income to account for the $1,200 per month spousal support award. The court then recalculated the child support award, again based on the parties’ potential incomes at the time of dissolution, but it adjusted husband’s income upward and wife’s income downward by $200 each to reflect the step-down in spousal support after five years.

On appeal, husband first asserts that the trial court erred in failing to treat the $105,000 and $25,000 advances from the parties’ parents as marital debts. He argues that the court’s failure to treat the $105,000 advance from his mother as a marital debt resulted in an inequitable overall division of the parties’ property and debts, requiring him to pay $80,000 more than wife. He points out that both parties designated the advances as marital debts in their trial memoranda and that wife did not contend otherwise until closing argument. In response, wife acknowledges that the parties owed Shlitter $40,000 for the Whitmore property, but she contends that Shlitter gave the Grants Pass residence to them without expecting repayment. Wife relies on Shlitter’s testimony that “I let them have it” as evidence that the house was a gift. Wife also argues that the evidence was unclear as to “whether [Shlitter] ever expected to be repaid the $105,000, whether the transfer of title to her of the Grants Pass house, which was valued at $240,000, satisfied any remaining obligation the parties might have toward [Shlitter], or whether the funds were yet another gift from [Shlitter] to [the parties].” Wife reasons that,

“given the history of borrowing, repaying and gifting between [Shlitter] and the parties, the lack of any documentation evidencing a requirement that the parties were obligated to repay the $105,000 to her, and [Shlitter’s] inability to recall any terms of such obligation, [it is unclear] whether there still is a debt owing her.”

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Cite This Page — Counsel Stack

Bluebook (online)
71 P.3d 154, 188 Or. App. 277, 2003 Ore. App. LEXIS 710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-shlitter-orctapp-2003.