In re the Marriage of Thomsen

2 P.3d 432, 167 Or. App. 218, 2000 Ore. App. LEXIS 739
CourtCourt of Appeals of Oregon
DecidedMay 10, 2000
Docket9430232; CA A100930
StatusPublished
Cited by8 cases

This text of 2 P.3d 432 (In re the Marriage of Thomsen) 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 Thomsen, 2 P.3d 432, 167 Or. App. 218, 2000 Ore. App. LEXIS 739 (Or. Ct. App. 2000).

Opinion

ARMSTRONG, J.

Husband appeals the trial court’s refusal to modify his child support obligation and to terminate his spousal support obligation. We review de novo and affirm.

The parties’ 11-year marriage was dissolved in 1995. The trial court granted wife custody of the parties’ two children. It also awarded wife spousal support in the amount of $200 per month for four years and child support in the amount of $497 per month. Husband appealed the trial court’s decision on those issues, and we affirmed. Thomsen and Thomsen, 145 Or App 484, 930 P2d 902 (1996). During the marriage, husband completed a bachelor’s degree in business administration, which he had begun before the marriage, and also earned a one-year certificate in hazardous waste management. Wife earned a one-year degree in culinary arts during the marriage. At the time of the dissolution, husband was planning to work in an environmental consulting business that he had formed with his brother. Although husband testified at the dissolution proceeding that he could potentially earn more in the new business, the trial court set his expected income at $26,000. Wife was employed as a caterer for a hospital at dissolution. Her annual income in that position was $19,200.

In 1997, husband moved to modify the dissolution judgment to alter his support obligation and to obtain custody of the children. See ORS 107.135 (1995). In support of his motion on support, husband argued that his circumstances had changed because his self-employment as an environmental consultant had failed to generate the income that the trial court had predicted. With respect to custody, he argued that wife was neglecting the children and that she was not meeting their educational needs. The trial court denied the modification motion, holding, as to child arid spousal support, that husband had failed to show a substantial change in economic circumstances. See ORS 107.135(2)(a) (1995). As to custody, the court held that husband had failed to show both that a substantial change of circumstances had occurred since the original dissolution judgment and that granting him custody would be in the best interests of the children. Only the trial court’s rulings with respect to child and spousal support are before us on appeal.

[221]*221Husband started the consulting business with his brother in 1993. However, he did not actively work to develop the business until at least 1995; in the interim, he pursued other opportunities. For instance, in 1994, husband worked as an environmental engineer until he was laid off in late October, a few weeks before the dissolution trial. That year, he earned about $30,000. After being laid off, husband searched for full-time employment for approximately four months. In the course of that search, he sent out 200 résumés. Although he received several interviews, none of them resulted in a job offer. Husband attributed his failure to secure employment to his lack of experience in the field.

In March 1995, in his capacity as a hazardous waste consultant, husband began work as a subcontractor for Americlean Environmental Services. In early 1997, after a falling out with Americlean, husband stopped his subcontracting work and began to devote full-time effort to his consulting business. At some point during the course of those events, husband’s brother left the business to pursue a graduate degree. Husband is now operating the business alone. At the time of the modification hearing, husband had two contracts with municipalities; he had also put in bids for grants with other municipalities and was waiting to hear about those projects.1 Husband has not searched for regular employment since March 1995.2 However, he did receive one apparently unsolicited offer to work in the sales department of a company that was subcontracting with him. He rejected it because of the high turnover rate in that department.

In 1995, husband’s adjusted gross income was $6,598; in 1996, it was $11,249. In 1997, husband reported his income from January through June to be $9,086. Based on the two contracts that he had at the time of the modification hearing, husband estimated that his total income for 1997 would be about $21,000. One of those two contracts extended through June 1998 and the other extended through [222]*222June 2000. Husband testified that he believed that his low income during the first few years of his business was due to the difficulty of developing a business without a sizable initial investment. He appeared to be confident, however, that his business was growing and would continue to grow, albeit at a slower rate than it would have if he had had more capital to invest in it.

In contrast to husband’s income, wife’s income has risen slightly since the dissolution proceeding. After being discharged from her catering position at the hospital, wife became an assistant general manager at a Shari’s Restaurant. When she left that position, she became an assistant general manager at another restaurant. However, at the time of the modification hearing, wife was unemployed and was receiving unemployment insurance benefits. Her gross income for 1994 was $17,008.3 In 1995, she earned $17,245. The evidence in the record regarding her 1996 earnings was incomplete. In 1997, her gross income was expected to be about $20,000, including the unemployment insurance benefits she had begun to receive in the latter half of the year, but not including the spousal support that husband owed her.

Husband assigns error to the trial court’s determination that no substantial change of circumstances has occurred that would justify modification of child support or termination of spousal support. See ORS 107.135(2)(a) (1995). Husband argues that his failure to earn the $26,000 projected by the trial court constitutes a “substantial change in economic circumstances” sufficient to require us to reconsider the award. ORS 107.135(2)(a) (1995); see also Glithero and Glithero, 326 Or 259, 265, 951 P2d 682 (1998). Similarly, he argues that wife’s recent employment history indicates that her earning potential is well above the income that she was earning at the time of the dissolution trial. On de novo review, we conclude that husband has not met his burden of [223]*223proving a substantial change of economic circumstances. Accordingly, we affirm.

“In order to obtain a modification of the child and spousal support orders, husband must demonstrate a substantial change in circumstances. * * * In addition to being substantial, that change in circumstances must be one that could not have been anticipated at the time of the judgment.”

Boyd and Boyd, 152 Or App 785, 788, 954 P2d 1281 (1998) (citations omitted). Moreover, temporary reductions in income, Adock and Adock, 138 Or App 23, 27, 905 P2d 1185 (1995), and economic downturns in business do not ordinarily constitute changed circumstances, Boyd, 152 Or App at 789.

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Bluebook (online)
2 P.3d 432, 167 Or. App. 218, 2000 Ore. App. LEXIS 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-thomsen-orctapp-2000.