In re the Marriage of Thomas

45 P.3d 954, 181 Or. App. 128, 2002 Ore. App. LEXIS 678
CourtCourt of Appeals of Oregon
DecidedMay 1, 2002
Docket9606-66962; A111019
StatusPublished
Cited by6 cases

This text of 45 P.3d 954 (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, 45 P.3d 954, 181 Or. App. 128, 2002 Ore. App. LEXIS 678 (Or. Ct. App. 2002).

Opinion

DEITS, C. J.

Wife appeals from a trial court judgment modifying a dissolution judgment by reducing husband’s spousal support obligation. On de novo review, we modify the spousal support award.

The parties were married for 23 years. They have three children: 21-year-old twins and a 22-year-old daughter, all of whom were attending college at the time of the modification hearing. Wife, who was 50 years old at the time of the modification hearing, is a dietician. Husband, who was 54 years old at the time of the hearing, is an ear, nose, and throat doctor. The parties’ dissolution judgment was entered in September 1997. Wife was awarded spousal support of $6,000 per month for a period of 26 months — through November 1999 — and $4,000 per month for an additional 84 months, for a total of about nine years. The step-down in spousal support coincided with husband’s obligation under the dissolution judgment to pay for the children’s college expenses. The spousal support award was based on husband’s annual income at the time of the dissolution of $288,000 and wife’s income at that time of $33,600. The dissolution court stated that wife’s income could possibly increase to $40,000 if wife increased her work hours to full time. Wife’s income in 1999 was approximately $35,000 per year, and she was working close to full time.

The subject of this appeal, husband’s request to modify his spousal support obligation from December 1, 1999 to November 1, 2006, was heard by the trial court in May 2000.1 Husband based this request on the reduction of his annual [131]*131income to approximately $204,000 and an increase in the educational expenses for the children. The trial court found that there was a substantial and unanticipated change in circumstances based on husband’s decreased income and the greater-than-expected educational expenses for which he was responsible. The court reduced husband’s support obligation, effective June 1, 2000, to $2,000 per month. The November 1, 2006, termination date for the spousal support obligation remained unchanged.

Wife appeals, assigning error to the trial court’s decision to modify husband’s support obligation. She first argues that husband did not establish that a substantial and unanticipated change of his economic circumstances had occurred. She argues alternatively that, even if husband did establish a change of circumstances, the amount of the reduction in spousal support was not justified.

An award of spousal support may be modified based on a finding of a substantial unanticipated change in economic circumstances since the time of an earlier award.2 Tomos and Tomos, 165 Or App 82, 87, 995 P2d 576 (2000); Maier and Maier, 137 Or App 15,18,902 P2d 1214(1995), rev den 322 Or 644 (1996). The burden of establishing the change in circumstances is on the party requesting the change — in this case, husband. Maier, 137 Or App at 18. In determining whether a modification in spousal support is appropriate, we consider the purposes of the original support award. When the evidence does not provide specific information on the purpose of the original support award, we presume that the award was based on the disparity of the parties’ income and that the amount of support awarded “presumptively reflects the most equitable distribution of income between the parties.” Bates and Bates, 303 Or 40, 47, 733 P2d 1363 (1987); Cowden and Cowden, 172 Or App 343, 350-51, 18 P3d 479 (2001); Bock and Bock, 171 Or App 458, 15 P3d 609 (2000). Here, there is no direct evidence of the purpose of the award. [132]*132Accordingly, our task in considering modification of the spousal support award is to maintain the relative position of the parties in light of any changed circumstances. Bock, 171 Or App at 463.

Wife does not dispute that husband’s income decreased to $204,000 in 1999. She contends, however, that husband’s earning capacity is greater than that and that the reduction in husband’s income for 1999 was due in large part to his voluntary actions. Specifically, wife points out that husband took 45 days off work in 1999, which is an increase from the two to three weeks that he typically was away from work in previous years. Wife contends that, had husband worked his usual amount during 1999, his income would not have decreased.

It appears from the record that wife is correct that husband did take more time off than usual and that his doing so likely had some effect on his income. Further, the evidence shows that the additional time off was spent on events in husband’s life that are not likely to occur every year. He spent 14 days caring for his elderly parents and a number of days accompanying his children on visits to college campuses. Consequently, we agree with wife that husband’s income for 1999 probably is not a completely accurate indication of husband’s earning capacity.

On the other hand, husband demonstrated that a number of changes in the medical field have occurred in the last few years that have caused a reduction in his income. The evidence presented by husband shows that changes in managed care have resulted in a reduction in the amount that husband is paid for various medical procedures. In addition, limitations on referrals resulting from changes in managed care have also had a negative effect on husband’s earnings. There was also evidence that the bankruptcy of Health First, an association of physicians that accounted for over 50 percent of husband’s referrals, has had a negative effect on husband’s earning capacity.

Based on the evidence presented, we conclude that there has been a substantial and unanticipated reduction in husband’s income and earning capacity since the original dissolution judgment. However, we are not convinced that all of [133]*133the reduction in husband’s income for 1999 was due to the above-described changes in the medical field. We find that husband’s 1998 earnings of $229,000 best represent husband’s earning capacity at the time of the modification hearing.

Husband also argued, and the trial court held, that the amount of college expenses that husband pays for the parties’ children is greater than the parties originally expected and that this represents a substantial and unanticipated change in circumstances. We first note that it cannot be said generally that husband’s responsibility for the children’s educational expenses was unanticipated. The marital settlement agreement, which was incorporated into the original dissolution judgment, provided that husband was to be responsible for “what it would cost to send a child to the University of Oregon at Eugene.” Further, some provisions were made in the original judgment to accommodate husband’s obligation. Under that judgment, husband’s spousal support obligation was reduced in December 1999 from $6,000 to $4,000 per month to coincide with husband’s assumption of college expenses for all three children in 1999. In addition, husband’s $1,000 per month child support obligation ended in September 1999.

Although his responsibility for college expenses was not unanticipated, husband argued, and the trial court agreed, that the college expenses were substantially greater, than anticipated. The trial court found that annual educational expenses were $51,500.

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Cite This Page — Counsel Stack

Bluebook (online)
45 P.3d 954, 181 Or. App. 128, 2002 Ore. App. LEXIS 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-thomas-orctapp-2002.