In re the Marriage of Smith

32 P.3d 925, 176 Or. App. 619, 2001 Ore. App. LEXIS 1413
CourtCourt of Appeals of Oregon
DecidedSeptember 26, 2001
Docket15-91-09112; A104431
StatusPublished
Cited by1 cases

This text of 32 P.3d 925 (In re the Marriage of Smith) 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 Smith, 32 P.3d 925, 176 Or. App. 619, 2001 Ore. App. LEXIS 1413 (Or. Ct. App. 2001).

Opinion

SCHUMAN, J.

Wife alleged that husband owed her unpaid spousal support, and she moved for a judgment to that effect. The trial court denied her motion. She appeals. We affirm.1

Husband and wife’s 44-year marriage was dissolved in 1991. The marital settlement agreement, incorporated into the dissolution judgment, requires each spouse to pay spousal support to the other in the amount of 50 percent for a certain time, and thereafter 40 percent, of “any earned income,” defined as:

“[A]ll compensation for a party’s efforts, including, but not limited to, salary, wages, bonuses, fees, tips and dividends pai[d] in lieu of salary or wages from a closely held corporation.”

At the time of the dissolution, husband had recently retired from his position at Western Electronics Corporation (WEC), but at times thereafter he continued to hold a title there and performed a significant amount of work for the corporation on an irregular schedule, although he did not receive any formal, regular salary. The present case arose in 1997 when wife sought a judgment in the amount of husband’s alleged unpaid spousal support.

The gist of wife’s argument at trial and again on appeal is that, since the dissolution, husband has received three forms of earned income, as that term is defined in the dissolution judgment: unjustifiably large shareholder dividends issued by WEC; interest income from loans to WEC at artificially inflated rates; and excessive profits from a subleasing arrangement whereby he leased equipment from a supplier and subleased it to WEC. Husband admits spending significant time at WEC after the dissolution, but counters that the money he received from the corporation was not earned income, as that term is defined in the judgment; [622]*622rather, it was income he would have received in any event even if he had never spent any time at WEC after the dissolution.

After expressing considerable initial skepticism, the trial court found that husband’s evidence was more persuasive and that wife had not satisfied her burden of proof. See Waterman and Waterman, 158 Or App 267, 271, 974 P2d 256 (1999) (“[W]hen there is evidence in the record of the husband’s actual income, it is incumbent upon the wife as the proponent of a higher income figure to demonstrate husband’s present ability to pay spousal support based on the higher amount.”). Specifically, the trial court said, with respect to the dividends: “I am not able to find that these dividends were paid in lieu of salary or wages.” Regarding the other forms of alleged “earned income,” the court further found that the income from interest on the loans resulted from husband’s willingness to risk an investment in WEC despite its precarious financial position and that the income from the sublease arrangement resulted from husband’s willingness to use his reputation with the equipment supplier to consummate the arrangement when WEC on its own could not have done so. In essence, the trial court believed that husband’s income streams from WEC were not salary, salárylike, or “in lieu of salary,” despite wife’s assertions that they were.

On appeal, we must determine whether husband received “earned income” under the provisions of the marital settlement agreement, which in turn requires us to interpret those provisions. When a marital settlement is incorporated into a dissolution judgment, its terms are interpreted in the same manner as other contractual terms, Moon v. Moon, 140 Or App 402, 407, 914 P2d 1133, rev den 323 Or 484 (1996), that is, by examining the text within the context of the whole document to determine the parties’ intentions; extrinsic evidence of the parties’ intentions if text and context are ambiguous; and, as a last resort, maxims of construction. Yogman v. Parrott, 325 Or 358, 360-65, 937 P2d 1019 (1997).

We begin with the text. “Earned income” is defined as “all compensation for a party’s efforts, including, but not limited to, salary, wages, bonuses, fees, tips and dividends pai[d] [623]*623in lieu of salary or wages from a closely held corporation.” The key phrase in this definition is “compensation for * * * efforts.” “[W]ords of common usage typically should be given their plain, natural, and ordinary meaning.” PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). “Compensation” is “payment for value received or service rendered,” Webster’s Third New Int’l Dictionary, 463 (unabridged ed 1993), or “that which is given in recompense, an equivalent rendered, remuneration * * *,” 1 The Oxford English Dictionary, 490 (compact unabridged ed 1971). We note a feature that is common to both these definitions. Compensation is part of a quid pro quo: payment in exchange for value, given in recompense, equivalent to something else. “Compensation for effort” must therefore mean payment received from some person or entity, the amount of which depends on the quantity or quality of services provided by the person receiving the payment.

Further, and to the same effect, because earned income includes “dividends pai[d] in lieu of salary or wages,” we can presume that, by negative implication, earned income does not include ordinary dividend income, or what we might call “pure” dividend income — the kind of return on investment that results from luck, the efforts of others, seemingly random market forces, the wise calculation of risk against potential earnings, or some combination of those factors. The remaining list of examples of earned income confirms this understanding. “[S]alary, wages, bonuses, fees, tips and dividends pai[d] in lieu of salary or wages” are specific examples of “compensation for a party’s efforts.” All of them are forms of payment received as quid pro quo for services provided. Although the list is not exclusive, under the maxim of ejusdem generis, the enumerated examples demonstrate that the general term “earned income” refers to a payment for services rendered because of a party’s efforts, in an amount correlated to its quality or quantity. See Groshong v. Mutual of Enumclaw Ins. Co., 329 Or 303, 312-13, 985 P2d 1284 (1999) (applying ejusdem generis at the “text and context” level of contract interpretation).

Any ambiguity regarding the meaning of “earned income” is resolved by extrinsic evidence in the record. Husband rejected a draft agreement in which “earned income” [624]*624was defined as “all compensation for a party’s efforts, including, but not limited to * * * dividends”; his attorney indicated that husband wanted language that would permit husband to keep all dividends generated by the company unless “he went back to work and instead of paying him a salary they paid him dividends he otherwise wouldn’t have been entitled to.”

Thus, “earned income” or “compensation for efforts” includes only income that is payment received from some person or entity, the amount of which is more or less correlated to the value of services provided by the person receiving the compensation. This conclusion, in turn, means that traditional investment income is not “earned.” Although such income may result from efforts, it is not correlated to the quantity or quality of those efforts; depending on luck, market forces or other variables outside the control of the investor, the exact same “effort” might produce high levels of income, low levels, or losses.

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Bluebook (online)
32 P.3d 925, 176 Or. App. 619, 2001 Ore. App. LEXIS 1413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-smith-orctapp-2001.