In the Matter of Deming

246 P.3d 513, 240 Or. App. 447
CourtCourt of Appeals of Oregon
DecidedJanuary 19, 2011
Docket07DO0673DS A139552
StatusPublished

This text of 246 P.3d 513 (In the Matter of Deming) 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 the Matter of Deming, 246 P.3d 513, 240 Or. App. 447 (Or. Ct. App. 2011).

Opinion

246 P.3d 513 (2011)
240 Or. App. 447

In the Matter of the MARRIAGE OF Michael V. DEMING, Petitioner-Respondent, and
Debra Ann Deming, Respondent-Appellant.

07DO0673DS; A139552.

Court of Appeals of Oregon.

Argued and Submitted November 5, 2009.
Decided January 19, 2011.

*514 Mark Johnson, Portland, argued the cause for appellant. With him on the opening brief were Laura B. Rufolo and Johnson & Lechman-Su PC.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.[*]

DUNCAN, J.

Wife appeals the trial court's dissolution judgment, assigning error to the court's spousal support award and property division. We reject her contentions concerning spousal support without discussion and write only to address wife's argument that, when dividing the parties' property, the trial court erred by valuing husband's retirement accounts (the "Retirement Income Plan" and the "Savings Plan") as of the date of separation, as opposed to the date of dissolution. On de novo review, ORS 19.415 (2007),[1] we modify the *515 judgment with respect to the retirement accounts and otherwise affirm.

The relevant facts are as follows. The parties were married for 28 years. At the time of the dissolution trial, wife was 56 years old, and husband was 53. The parties have two adult children: a 23-year-old daughter and a 20-year-old son.

When the parties married in 1979, wife worked as a nurse and wrote articles for a newspaper. Husband worked in the oil industry. In 1981, the parties moved to Singapore for husband's job, and wife stopped working. They later returned to the United States, and wife worked from 1984 to 1991, first as a nurse and then as an office manager. Wife's jobs allowed her to have some flexibility and availability to care for the children. In 1991, the parties moved to Oregon. They moved onto a ranch in a rural area, and wife did not seek employment off the ranch because she was responsible for caring for the ranch, the livestock, and the children, then ages 4 and 7.

In 1996, the parties moved to Saudi Arabia when husband took a job with Saudi Aramco. Husband worked on a drilling platform. His regular schedule was 14 days on and seven days off. Beginning in 2006, he worked substantial amounts of overtime, from five to 11 weeks on, with one week off. Wife did not work outside the home in Saudi Arabia.

Husband had his pay deposited into a joint checking account, and wife was responsible for paying all of the parties' bills. The parties owned three homes in Oregon, one of which they rented out to tenants.

Wife returned to the United States for a visit in February 2007. Husband joined her for three days in March 2007. During his visit, husband told wife that he wanted a divorce. He set up a separate checking account and returned to Saudi Arabia alone.

Wife purchased a condominium in southern California for the parties' son to live in while he attended college there. Although the parties' children were adults, wife assisted them. She helped the son find housing and helped the daughter with her newborn child.

After husband returned to Saudi Arabia, he arranged to have his pay deposited into his separate checking account, and he provided wife with an average of $5,000 per month. She used that money to pay the mortgage and utilities for one of the parties' Oregon homes, as well as the mortgage on the condominium, their son's living expenses, and her own personal expenses. Husband deposited the money into the parties' joint account and specified what bills wife should pay, although wife determined what expenses to cover for their son. When the tenant in the parties' rental property was late in paying rent, wife used the funds she got from husband to pay the mortgage on the rental property.

Husband filed for dissolution in May 2007. The dissolution trial was held in February 2008. The parties disagreed about how the trial court should value husband's retirement accounts. Husband argued that the court should use the value of the accounts as of the parties' separation in March 2007, asserting that he had rebutted the statutory presumption of equal contribution with respect to the post-separation increases in the value of the accounts. Wife, on the other hand, argued that the court should use the value of the accounts as of the date of either the dissolution trial or the judgment. Wife asserted that husband had not rebutted the presumption of equal contribution because the parties' separation was short and the parties were not financially independent of each other during the separation. The trial court accepted husband's argument, explaining in its letter opinion:

"For the purposes of this decision, the separation of the parties occurred in the early spring of 2007, and the balance of the [Retirement Income Plan] increased from $437,939 on March 31, 2007 * * * to $494,748 on December 31, 2007.[[2]] There is no evidence that Wife had any involvement in the investment portfolio; therefore, this increase appears to be entirely passive, and Husband has overcome the *516 presumption of equal contribution. Hence, the date of valuation is March 31, 2007[.]"[3]

The judgment provides:

"Wife is hereby assigned fifty percent (50%) of Husband's accrued benefits and account balances ('Assigned Benefits') in the [Retirement Income Plan] and the [Savings Plan] * * * as of March 31, 2007, ('Assignment Date'). The Assigned Benefits shall be adjusted for all actual earnings and losses and for other changes in value from the Assignment Date forward. Any Plan loans shall be retained in the Husband's share of such Plan and it shall be the Husband's sole responsibility to repay any such loans to the Plans. However, any Plan loans shall not be included in the value of Husband's benefits and account balances * * * for the purpose of determining the total value of Husband's Benefits.
"* * * * *
"The court shall retain jurisdiction for presentation of further evidence or to resolve any disputes which relate to any of the retirement benefits and accounts awarded under this paragraph and to enter any [Supplemental Judgment] necessary for the assignment, transfer or distribution of the retirement benefits from Husband to Wife. * * *"

On appeal, the parties renew their arguments regarding the valuation of husband's retirement accounts. We begin our analysis with the governing statute, ORS 107.105(1), which provides, in part:

"Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment:
"* * * * *
"(f) For the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances. A retirement plan or pension or an interest therein shall be considered as property. The court shall consider the contribution of a spouse as a homemaker as a contribution to the acquisition of marital assets.

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Bluebook (online)
246 P.3d 513, 240 Or. App. 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-deming-orctapp-2011.