In re the Marriage of Weber

56 P.3d 406, 184 Or. App. 190, 2002 Ore. App. LEXIS 1564
CourtCourt of Appeals of Oregon
DecidedOctober 9, 2002
DocketC95-1232DR; A113178
StatusPublished
Cited by8 cases

This text of 56 P.3d 406 (In re the Marriage of Weber) 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 Weber, 56 P.3d 406, 184 Or. App. 190, 2002 Ore. App. LEXIS 1564 (Or. Ct. App. 2002).

Opinions

BREWER, J.

Husband appeals from a judgment modifying a previous judgment dissolving the parties’ marriage by increasing the amount of husband’s monthly support obligation to wife. On de novo review, we affirm.

The parties were married in 1971 while in their junior year of college. At the time of the dissolution in 1995, both parties were 45 years old, and their two sons were 14 and 10, respectively. Wife obtained a master’s degree in special education during husband’s first two years of medical school. Husband’s medical training lasted a total of seven years, and wife provided family support through teaching employment during the remaining five of the seven years. When husband entered the workforce as a physician, the parties agreed that wife would stay at home to start their family and raise the children. Wife was a stay-at-home parent for the remainder of the marriage — approximately 14 years.

During the last six years of the marriage, husband’s professional income, including a $30,000 annual pretax contribution to his retirement plan, averaged more than $260,000 per year. The parties enjoyed a lifestyle commensurate with that level of income, including many vacations, a substantial gift and entertainment budget, and late-model vehicles.

In 1994, after filing a petition to dissolve the parties’ marriage, husband told wife that his income for that year would be drastically reduced because of changes in his practice that had resulted in a substantial reduction in his workload. In a letter to wife, husband stated that his 1994 practice income likely would be less than $150,000 and that “the bottom [was] not in sight.” Husband’s attorney restated that position in two letters to wife’s attorney, and husband provided letters from other physicians with whom he practiced affirming that there was little or no expectation that husband’s income would return to its previous level.

Based on the foregoing information, the parties agreed to a stipulated judgment of dissolution that presumed an income level of $150,000 for husband. That presumed [193]*193income was not explicitly posited in the spousal support provision of the judgment, but the child support worksheet filed with the judgment expressly included it. The judgment presumed that wife’s gross monthly income was $823. The parties agreed that husband would pay $3,560 per month in spousal support for four years beginning in June 1995 and that, thereafter, support would continue indefinitely in the amount of $2,500 per month. Husband agreed not to seek a reduction in spousal support for the first four years after the judgment was entered should wife remarry, cohabit with another person, or obtain employment. Husband was required to pay child support for each child until the last day of July following the child’s graduation from high school. Thereafter, husband was to be solely responsible for the cost of four years of college for each child. The parties agreed that when the older child graduated from high school, child support would be recalculated without the parties having to show an unanticipated, substantial change of circumstances.

In September 1999, after the parties’ older son graduated from high school, husband filed a motion to modify his child support obligation. In response to that motion, and particularly with reference to the income information provided by husband, wife filed a motion to modify the judgment to increase husband’s spousal support obligation. Information disclosed in the modification proceeding showed that husband’s income and standard of living had, by 1997, returned to their pre-1994 levels. From 1997 through 1999, husband’s pretax income averaged $249,000 and, at trial in this proceeding, husband testified that he expected his year-2000 income to range between $240,000 and $270,000. Husband testified that he had taken several foreign vacations since the dissolution and had purchased a new vehicle. Husband also testified that he had not done any additional training or taken any courses to improve his skills or earning capacity since the dissolution judgment was entered in 1995.

At the time of the modification hearing in 2000, wife was a half-time public school teacher earning $1,566 per month. Wife also was attempting to establish herself as an artist but had income averaging only $60 per month from that work. In addition, wife had passive income of $220 per month and spousal support of $2,500 per month, yielding [194]*194total monthly income of about $4,300. Wife testified that her lifestyle had deteriorated since the dissolution; she had taken fewer vacations than before, she had traded her late-model vehicle in for an older car, and she now bought her clothes at resale shops.

There was no evidence in the modification proceeding that, in negotiating the stipulated judgment of dissolution in 1995, husband had misrepresented his then-current income or that his expectation and assertion that it would not increase in the future were unreasonable.

After hearing the evidence in the modification trial, the trial court found and concluded:

“In the several years before [dissolution], [husband] earned an average of approximately $260,000 per year. At dissolution, he earned $150,000 to $190,000 per year. Spousal and child support were based on the reduced income. * * *
* * * *
“Over the past several years, [h]usband has averaged approximately $260,000 per year in income which is about the same as he earned during the several years before dissolution. * * *
“This is not a subsistence case; it is a standard of living case. Wife is not starving. Husband’s monthly expenses reveal a comfortable standard of living, roughly comparable with that of the marriage. Wife lives substantially below the marital standard of living. Now that [h]usband has resumed that lifestyle, [w]ife is entitled to spousal support based on that lifestyle.
* * * *
“* * * A cynical divorce practitioner might argue that a pre-dissolution dip in a husband’s income is to be expected and a resumption post-dissolution is not unexpected. That may be true in many cases. Here, however, the dip was attributed to cost-cutting pressures in the medical marketplace that were common knowledge at the time. Husband presented compelling evidence at the time that he was suffering and would continue to suffer the above-noted substantial decrease in income due to these market forces. Under these circumstances, his resumption of the marital income level is an unanticipated and substantial change.”

[195]*195The court ultimately concluded that wife was entitled to an increase in spousal support, and it set indefinite support in the amount of $4,000 per month in order to permit wife to enjoy a standard of living not overly disproportionate to the marital standard.

On appeal, husband makes two related assignments of error. First, he asserts that the trial court erred by admitting evidence of the predissolution circumstances of the parties, particularly evidence relating to the negotiations culminating in the stipulated judgment. Second, husband contends that the post-dissolution increase in his income did not, standing alone, constitute a change of circumstances authorizing an increase in his spousal support obligation.

Husband’s first assignment of error requires little discussion.

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Cite This Page — Counsel Stack

Bluebook (online)
56 P.3d 406, 184 Or. App. 190, 2002 Ore. App. LEXIS 1564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-weber-orctapp-2002.