Matter of Marriage of Clapperton

649 P.2d 620, 58 Or. App. 577, 1982 Ore. App. LEXIS 3146
CourtCourt of Appeals of Oregon
DecidedAugust 18, 1982
Docket79-12-62, CA A21620
StatusPublished
Cited by11 cases

This text of 649 P.2d 620 (Matter of Marriage of Clapperton) 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
Matter of Marriage of Clapperton, 649 P.2d 620, 58 Or. App. 577, 1982 Ore. App. LEXIS 3146 (Or. Ct. App. 1982).

Opinion

*579 VAN HOOMISSEN, J.

Husband appeals from a dissolution decree, contending that the trial court erred in (1) treating as marital assets businesses in which he had an interest, (2) failing to consider tax consequences in the distribution of the marital property, (3) awarding spousal support to wife, (4) failing to order wife to pay child support and (5) ordering him to pay wife’s attorney and expert witness fees. Wife cross-appeals. She contends that the trial court erred in (1) under-valuing husband’s business interests, (2) miscalculating a judgment awarded her which was intended by the court to equalize the property division and (3) reducing the installment payments on the judgment.

The parties were married sixteen years. Husband, age 40, is a certified public accountant. He was employed as comptroller for Coral Construction, Inc., a firm engaged primarily in specialized highway projects. Wife, age 39, was employed sporadically during the marriage as a teacher. In July, 1979, wife moved to New York, where she found employment as a sales trainee at Honeywell Corporation. Custody of two minor children was awarded to husband. No child support obligation was imposed on wife. She was given “reasonable and unlimited visitation privileges.” Wife must pay the children’s transportation expenses when they visit her in New York. Husband claims the children as dependents for income tax purposes. The decree awarded husband his business interests and retirement accounts, divided the personal property and awarded wife a $17,864.50 judgment to equalize the property division, payable at $125 monthly with nine percent interest. Husband was required to pay spousal support of $250 monthly for five years.

HUSBAND’S BUSINESS INTERESTS

Husband first contends that his interests in Coral Construction, Inc., 1 and in Barlow Associates, a partnership, should not have been included as marital assets. He argues that because those assets were acquired after the parties’ separation, the presumption of equal contribution *580 to the acquisition of assets, ORS 107.105(1)(e), 2 was rebutted. See, e.g., Lemke and Lemke, 289 Or 145, 611 P2d 295 (1980) (property acquired after separation but prior to dissolution not considered in dividing marital assets because the parties had been separated for twenty years).

Coral Construction, Inc., is the successor to Coral Corporation, for which husband had worked for seven years. In April, 1979, before the separation, he signed an agreement to purchase shares in the successor corporation. The consideration for those shares was actually paid several months after the separation but before the dissolution.

The assets acquired here had roots extending far back into the marriage. Husband trained for and obtained his CPA status during the marriage. Without such training, he arguably would not have obtained employment by Coral Corporation, which was the source of his opportunity to acquire an interest in Coral Construction, Inc. The fact that an asset is acquired after separation but prior to dissolution does not prevent it from being considered as marital property. Dietz and Dietz, 271 Or 445, 553 P2d 783 (1975). The same considerations apply to husband’s interest in Barlow Associates, a partnership formed by husband and other Coral Corporation owners. The partnership, which bought construction equipment and leased it to Coral, was formed primarily for tax purposes and is essentially part of Coral for present purposes. Money was distributed by Coral to its shareholders, who then put it into Barlow to purchase equipment; the transaction represented more the use of assets already owned than the acquisition of new assets. We conclude that the statutory presumption of equal contribution was not rebutted.

*581 TAX CONSEQUENCES

Husband contends that the trial court erred in placing a $25,000 value on his.interest in Barlow Associates, because it failed to consider a $8,250 tax liability on money he received from Coral and used to finance Barlow. He also contends that it' was error not to consider the possible tax consequences of a future sale of his business interests.

The tax liability on the money from Coral is speculative. See Kathrens and Kathrens, 47 Or App 823, 830, 615 P2d 1079, rev den 290 Or 211 (1980). It is unclear to what extent it will be offset at year’s end by tax benefits. Husband testified that the equipment purchased by Barlow would entitle him to an investment tax credit and depreciation deductions. Lease income and interest deductions are also possible. Given husband’s admission that he did not know whether Barlow would generate a loss, it is disingenuous of him to complain of a “vested” tax liability.

Husband’s tax liabilities on the possible sale of his shares in Coral or on the receipt of his retirement funds are also speculative. He admits that he has no present plans either to sell his shares or to liquidate his retirement account. There was insufficient evidence to permit calculation of the tax consequences of these events.

As for possible tax consequences on receipt of retirement funds, the trial court set a present value on husband’s retirement funds and awarded that value to him. He did not contest that treatment of his retirement account. The tax on the funds as received will vary depending on the amounts received, prevailing tax rates and husband’s other income. Future taxes are thus entirely speculative. We refuse to consider them. Rogers and Rogers, 45 Or App 885, 609 P2d 877, modified 47 Or App 963, 615 P2d 412, rev den 289 Or 659 (1980), modified 50 Or App 511, 623 P2d 1108, rev den 290 Or 853 (1981); Whitcomb and Whitcomb, 39 Or App 763, 766, 593 P2d 1239, 40 Or App 583, 595 P2d 846, rev den 286 Or 745 (1979):

“ * * * the record here is barren of any evidence that would permit us to appraise the tax impact — or even if there will be any. Anything we might say would be legally *582 and factually speculative, and we will not enter upon that.”

The record here is insufficient to support even a reasonable estimate of husband’s future tax consequences. Given the speculative nature of these tax liabilities, it was not error to disregard them in dividing the marital property.

SPOUSAL SUPPORT

Husband contests the award to wife of spousal support in the amount of $250 per month for five years. He had been paying $300 monthly support since the separation. His net monthly salary was $2,090. His monthly expenses, including child care, were approximately $1,700. In past years he earned additional income preparing tax returns during off-hours. Wife earned $1,015 monthly net. Her monthly expenses were $1,107. She is a sales trainee. She wishes to enroll in graduate school.

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Bluebook (online)
649 P.2d 620, 58 Or. App. 577, 1982 Ore. App. LEXIS 3146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-marriage-of-clapperton-orctapp-1982.