In re the Marriage of Thomas

981 P.2d 382, 160 Or. App. 365, 1999 Ore. App. LEXIS 723, 1999 WL 308736
CourtCourt of Appeals of Oregon
DecidedMay 12, 1999
Docket96DO1623DS; CA A99432
StatusPublished
Cited by10 cases

This text of 981 P.2d 382 (In re the Marriage of Thomas) 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 Thomas, 981 P.2d 382, 160 Or. App. 365, 1999 Ore. App. LEXIS 723, 1999 WL 308736 (Or. Ct. App. 1999).

Opinion

WOLLHEIM, J.

Husband appeals from the judgment denying his motion to modify the parties’ judgment of dissolution and makes three assignments of error. Wife cross-appeals from the supplemental judgment denying her motion for attorney fees. On de novo review of husband’s appeal, ORS 19.125(3), we affirm in part and reverse in part. On wife’s cross-appeal, we review for abuse of discretion, ORS 20.075(3), and remand for findings of fact and conclusions of law consistent with McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200, clarified on recons 327 Or 185, 957 P2d 1200 (1998).

Husband and wife married in 1981. Husband retired from the Marine Corps in 1994 and the parties moved to Oregon, where they had bought a home before , husband’s retirement. After relocating to Oregon, husband worked full time for $8 an hour and wife worked part time for $7.50 an horn*. In addition, husband received monthly military benefits: $243 for retirement benefits and $938 for active duty disability. The parties’ last joint tax return showed an adjusted gross income of $40,046.

The parties separated in June 1996, and a month later discussed the financial aspects of ending their marriage. Husband asked wife if she planned to remarry and wife indicated she did not. An agreement was subsequently reached regarding payments husband would make to her on a monthly basis. The amounts reflected in the parties’ judgment of dissolution are not in dispute here. During the dissolution proceedings, neither party retained an attorney. Wife filed her petition; husband was served in Texas, and a default judgment was entered against him when he failed to appear. The judgment dissolving the parties’ marriage was entered November 1996. It provided, in part:

“Distribution of Real Property: The real property, which is known as the family home and land * * * be distributed as follows: the house is up for sale, the husband shall continue payments of $1281.00 to run the house until it is sold and shall be responsible for all expenses related to the house until it sells. All equity or refunds shall be paid to wife when sold. The wife may live in the house until it sells. * * *
[368]*368 “Spousal Support:
“[Husband] shall pay to [wife] the amount of $700.00 per month, as agreed upon, for her maintenance and support, such payment to begin on the 1st day of the month after the house * * * is sold and to continue on the 1st day of each month thereafter until the death of the wife.”

Both parties remarried in December 1996. Husband and his new spouse reside in Texas, while wife and her new spouse inhabit the parties’ former home while awaiting its sale.

In March 1997, husband moved for an order modifying the parties’ judgment of dissolution to eliminate further money payments to wife. Husband characterized all of the payments as spousal support and argued, in part, that wife’s remarriage presented an unanticipated substantial change of circumstances. He contended that the salary of wife’s new spouse augmented wife’s income sufficiently to eliminate her need for support from him.

At the modification hearing, wife testified to house-related expenses in excess of $1,100 each month. At that time, her average monthly net income was approximately $800. Wife’s new spouse contributed an additional gross income to their household that ranged between $1,198 and $1,527 monthly. The couple’s 1996joint tax return showed an adjusted gross income of $26,318.

At hearing, the trial court denied husband’s motion, holding that all of the payments to wife represented a division of the parties’ property rather than spousal support and were not capable of judicial modification. Alternately, the court found that if the $700 payments were not part of a property division but were treated as they are labeled in the dissolution judgment as spousal support, the payments would still be unmodifiable because their purpose — to provide an income to wife until her death — had not been fulfilled. The trial court also denied wife’s motion requesting attorney fees. This appeal and cross-appeal followed.

Husband first assigns error to the trial court’s finding that the monthly payments of $1,281 to wife while the family home is up for sale constitutes a division of the parties’ [369]*369property rather than spousal support. In response, wife notes she was awarded all prospective equity and refunds resulting from the house’s sale. She argues that husband’s payments are for the house’s maintenance, not her own, and are meant to facilitate her realization of the court’s award when the property changes hands.

The distinction between a property division and spousal support in a judgment of dissolution is important because support orders are judicially modifiable, while property divisions are not. Horesky and Horesky, 30 Or App 941, 569 P2d 34 (1977), rev den 281 Or 1 (1978). The difference between the two, however, is not always obvious and is discerned by discovering the nature and purpose of the award as revealed by the facts of each case. Schaffer and Schaffer, 57 Or App 43, 47-48, 643 P2d 1300 (1982).

Here, as noted in the parties’ judgment of dissolution, wife was to receive all equity and refunds resulting from sale of the family home. Husband’s monthly payments of $1,281 were remitted to “run the house” until it sold, but those payments were not limited to that amount; husband was, in fact, responsible for all house-related expenses. The nature and purpose of the award was, therefore, to present wife with a property asset and then maintain it so she could ultimately realize its liquidated value. The trial court did not err in finding that husband’s monthly payments of $1,281 are part of an unmodifiable property distribution.

Husband’s second assignment of error is that the trial court incorrectly categorized as property distribution the prospective payments of $700 a month that husband was to make to wife following sale of the parties’ house. On appeal, husband argues that those payments are meant as labeled in the dissolution judgment, i.e., to provide spousal support. Wife contends that the payments are property because they represent a division of husband’s military benefits.

A party’s need for spousal support dictates that payments made to meet that need should be acknowledged as such, Echanis and Echanis, 74 Or App 188, 192, 702 P2d 433 (1985). In Echanis, the trial court held that the husband’s monthly payments of $900 to his ex-spouse were part of the [370]*370couple’s property division because the money was drawn as income from the husband’s business. In reversing, we said, “[t]he need for support indicates that the payments are spousal support” and noted that the wife’s salary of $700 per month, without the husband’s contribution, would have been insufficient to support her at a level commensurate with that which she enjoyed while married. Id. Similarly, in Esler and Esler,

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Bluebook (online)
981 P.2d 382, 160 Or. App. 365, 1999 Ore. App. LEXIS 723, 1999 WL 308736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-thomas-orctapp-1999.