In the Matter of Marriage of English and English

194 P.3d 887, 223 Or. App. 196, 2008 Ore. App. LEXIS 1481
CourtCourt of Appeals of Oregon
DecidedOctober 15, 2008
Docket0502626CV; A133289
StatusPublished
Cited by14 cases

This text of 194 P.3d 887 (In the Matter of Marriage of English and English) 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 Marriage of English and English, 194 P.3d 887, 223 Or. App. 196, 2008 Ore. App. LEXIS 1481 (Or. Ct. App. 2008).

Opinion

*198 SERCOMBE, J.

Husband appeals a marriage dissolution judgment, seeking modification of the property division and compensatory spousal support awarded to wife. The parties lived together for the first 14 years of their marriage, but lived separately for the next 11 years. The issues in the case concern the legal effect of that separation on the property division and spousal support awards. Husband asserts that the trial court erred in finding that evidence of the manner of the parties’ separation did not rebut the presumption of equal contribution to marital assets obtained by husband during that time and in awarding wife compensatory spousal support for her alleged contributions to husband’s career during the marriage. On de novo review, ORS 19.415(3), we affirm.

Husband and wife were married in 1981 and lived together for 14 years in Klamath Falls. They separated in May 1995 when husband moved into an apartment. In September 1996, husband relocated to North Carolina to begin duties as a plant manager. Wife remained in the marital home in Klamath Falls with the parties’ two children. That transcontinental distance between the parties’ residences continued for the next 11 years and through the time of the dissolution proceedings. At one time during the first few months of the separation, the parties discussed reconciling. They talked about their son’s academics once. Otherwise, the parties did not directly communicate or discuss ongoing or future finances after their separation.

Husband initially filed for dissolution in 1995, shortly after he and wife separated. Husband voluntarily dismissed that action because he was not committed to ending the marriage and was concerned about the effects of a divorce on their children. In 2003, husband filed a second petition for dissolution in North Carolina. That action was ultimately dismissed to facilitate settlement discussions and because of concerns about jurisdiction. In June 2005, wife realized that reconciliation with husband was not likely and filed the petition for dissolution that is the subject of this appeal. Wife testified that, before that time, she aspired to reconciliation and retirement with husband.

*199 At the time of the 2006 trial, wife was 44 years old, husband was 46, and their daughter and son were over 18 years of age. Both parties were in good health. Wife had a high school education and had worked full time as a personal banker since 1998. Before 1998, wife worked sporadically in retail sales and as a housecleaner, but mostly was a homemaker. Wife’s gross income was $24,229 in 2005. Husband had approximately two years of post-secondary education, largely provided through his employer, and had worked for Jeld-Wen, Inc., since 1980. He began as an entry-level hourly wage employee and received several promotions before becoming the general manager of a Jeld-Wen manufacturing plant in Marion, North Carolina. Husband’s gross income for 2005 was $210,665.

Neither party brought substantial assets into the marriage. In 1987, the parties purchased the marital home in Klamath Falls using husband’s inheritance money. They also acquired an individual retirement account (Lord Abbot fund) with money from the inheritance. The parties held joint bank and personal credit accounts. Over the course of their 25-year marriage, husband acquired Jeld-Wen stock, assets in an Employee Stock Ownership and Retirement Plan (ESOP), a Jeld-Wen pension, personal property including two vehicles and a boat trailer, and a personal residence in North Carolina. Wife acquired a retirement plan from her employer, some personal property, and no other substantial assets.

After their separation in 1995, the parties opened individual bank accounts, and husband removed his name from all joint credit accounts. However, husband and wife remained joint owners of the marital home, and husband kept his name on several of the house utility bills. Husband claimed ownership of the Klamath Falls home in a loan application for funds to purchase the North Carolina house. Husband and wife filed joint tax returns with state and federal authorities through 2004, claiming mutual dependency. Wife initially filed separate tax returns for the 2004 tax year, but amended those filings to joint returns at husband’s behest.

During their 11-year separation, husband voluntarily provided wife with funds to pay the mortgage and utility *200 charges on the Klamath Falls home and additional money for support of the children. Husband generally paid wife $1,750 each month. However, that amount varied depending on whether the parties’ children were living with wife and, at its low, was $550 per month. Husband paid their daughter’s college expenses and other education-related expenses of the children. Husband provided health care coverage for wife and the children through his employer. The children resided with wife through their high school years, except for two years when the son lived with his father during his high schooling. The children stayed with husband for four weeks during the summer and during vacations.

At trial, husband argued that the parties’ separation in 1995 was a “complete and total termination of the marital relationship” and, therefore, the court should divide equally only those marital assets acquired before the 1995 separation and award to him his property acquired thereafter. Said another way, husband contended that the personal property he obtained post-separation, namely the post-separation contributions to his ESOP and its appreciation and his stock acquisitions, was obtained by his efforts alone, without any direct or indirect contribution by wife. Conversely, wife argued that she had contributed to husband’s accumulation of post-separation assets because she had been a homemaker and had raised the parties’ children with little day-to-day support from husband.

After hearing testimony, the trial court agreed with wife and determined that “the parties remained a married couple for the purposes of a property division.” With respect to the post-separation Jeld-Wen stock acquired by husband, the trial court opined:

“The court concludes [husband] has not rebutted the presumption of equal contribution. The stock rights were obtained in 1995 at a time the parties were residing together. [Wife] remained in Klamath Falls in her traditional role as homemaker and mother to continue to raise the children in their hometown, while father continued in his traditional role as bread winner in a new community at a greater income.
*201 “[Wife’s] willingness to assume this role substantially contributed to husband’s enhanced earning capacity by freeing him from the burdens of child rearing while he was pursuing job related education that secured for him a position where his labor is now generously rewarded.”

The trial court made a similar determination with respect to the post-separation ESOP assets:

“The court’s discussion, immediately above, regarding [wife’s] contribution to [husband’s] enhanced earning capacity is applicable here.

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Bluebook (online)
194 P.3d 887, 223 Or. App. 196, 2008 Ore. App. LEXIS 1481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-marriage-of-english-and-english-orctapp-2008.