Matter of Marriage of Olinger and Olinger

707 P.2d 64, 75 Or. App. 351
CourtCourt of Appeals of Oregon
DecidedSeptember 25, 1985
DocketD8205-69303; CA A30625
StatusPublished
Cited by38 cases

This text of 707 P.2d 64 (Matter of Marriage of Olinger and Olinger) 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 Olinger and Olinger, 707 P.2d 64, 75 Or. App. 351 (Or. Ct. App. 1985).

Opinion

*353 BUTTLER, P. J.

In this dissolution proceeding, wife appeals, contending that the property division is not just and proper, that the amount of the judgment in her favor for lost job opportunity was not properly calculated and that she should have been awarded spousal support and attorney fees. She also contends that the trial court erred in excluding certain evidence. We modify the property division and affirm in all other respects.

Although the parties were married eight years, they actually lived together for six and one-half years. During the year before the dissolution husband, then 34, received $95,200 in salary and $21,500 in bonuses from three dealerships of which he is part owner. One of the dealerships also maintained a boat for his personal use. Wife’s income during that year, from her present position as a bookkeeper and office manager in an auto dealership, was $21,000. She was 35 at the time of dissolution and has two children from two previous marriages.

Most of the parties’ assets consisted of husband’s stock in the three dealerships. Husband acquired Olinger Travel Homes before the marriage with financial assistance from his parents. He owns 52 percent of the stock of that corporation; the remainder is held by his parents. Olinger Dodge reflects the same division of ownership, but husband purchased his stock during the marriage with $25,000 taken from husband’s and wife’s joint bank account and a $79,000 loan from Olinger Travel Homes. Husband also owns 25 percent of Olinger Chrysler-Plymouth, acquired during the marriage with a $27,500 loan from Olinger Travel Homes. Each of the three dealerships has increased in value during the marriage.

Wife worked in each of the dealerships at various times. She received a salary for most of her work and contributed that salary, which amounted to $16,700 in the last full year before the parties separated, to their joint account. That account was the source, not only of $25,000 for the down payment on Olinger Dodge, but also of part of the down payment for the parties’ home and of about $10,000 later spent on home improvements.

The trial court awarded the home, with a stipulated equity of $35,300, to wife, along with personal property in her *354 possession worth between $6,000 and $7,500; it also gave wife a judgment, not at issue here, for $11,000 for a job opportunity lost during the marriage. Husband was awarded his stock in the three dealerships and personal property in his possession worth between $5,000 and $8,500. The trial court reached this division by valuing husband’s interest in Olinger Dodge at $46,300 and concluding that the parties should share approximately equally in the home and that dealership, but that husband’s interests in Olinger Travel Homes and Olinger Chrysler-Plymouth were not marital assets subject to division in the dissolution. Wife contends that, because two of the dealerships were acquired during the marriage and the third appreciated greatly during the marriage, she should share in all three.

Even in short-term marriages each spouse is entitled to share in property that was acquired or increased in value during the marriage. ORS 107.105(1)(f). See Card and Card, 60 Or App 117, 652 P2d 866 (1982); Peru and Ovenburg, 56 Or App 300, 641 P2d 646, rev den 293 Or 146 (1982); Sagner and Sagner, 49 Or App 215, 619 P2d 660 (1980), rev den 290 Or 302 (1981); York and York, 30 Or App 937, 569 P2d 32 (1977). Furthermore, this eight-year marriage cannot be characterized as short-term, even if allowance is made for the separation. A review of Oregon cases involving marriages lasting at least five but less than nine years reveals a reluctance to characterize such marriages as either long-term or short-term. Seefeld and Seefeld, 294 Or 345, 349 n 2, 657 P2d 201 (1982); Caverly and Caverly, 65 Or App 98, 670 P2d 199, rev den 296 Or 236 (1983); Gerlitz and Gerlitz, 50 Or App 443, 623 P2d 1088, rev den 290 Or 853 (1981); Frishkoff and Frishkoff, 45 Or App 1033, 610 P2d 831 (1980); Mauser and Mauser, 28 Or App 525, 559 P2d 1310 (1977). In cases that distinguish between property brought to the marriage and property acquired or appreciated during the marriage, the wife has been awarded at least half of acquisitions and increases, even when the husband was the source of all or nearly all of the parties’ assets at the beginning of the marriage. Seefeld and Seefeld, supra; Caverly and Caverly, supra; Gerlitz and Gerlitz, supra; Frishkoff and Frishkoff, supra.

The conclusion that wife should share in property accumulated during this marriage is supported by the fact that the parties commingled their financial affairs and by the *355 statutory presumption that a homemaker spouse contributes equally to the parties’ financial success. Jenks and Jenks, 294 Or 236, 242, 656 P2d 286 (1982); ORS 107.105(1)(f). The parties clearly commingled their financial affairs. Both contributed to the down payment on the family home, to the home improvements and to the down payment on Olinger Dodge. Wife did the majority of the house work and half the yard work and also contributed her full-time earnings to the joint account. The trial court found that wife’s employment rebutted the statutory presumption of equal contribution by a homemaker, and that finding affected the property division. We believe, to the contrary, that the presumption is strengthened when a spouse not only does the homemaking but also contributes his or her salary to the marital estate. Wife’s participation in the family businesses, which at times was unpaid, on weekends or on an emergency troubleshooting basis, further strengthens the presumption of equal contribution and our finding that the family affairs were integrated. See Coats and Coats, 64 Or App 594, 597, 669 P2d 370 (1983).

Husband contends that the presumption of equal contribution is overcome, because Olinger Travel Homes, which he brought to the marriage, was the source of funds used to acquire the other dealerships and because his salary from those dealerships was the major source of funds in the joint account. Although courts may consider the source of funds belonging to one party if they remain segregated, 1 unsegregated funds will not be traced to their ultimate source in the absence of a compelling reason to do so. The fact that husband’s salary came in part from a dealership which he owned before the marriage does not lessen the fact that it was family income. Neither does the fact that husband, because of his business success, contributed a greater share to the joint account make it necessary to ascribe to him a greater share of assets purchased from that account. Coats and Coats, supra.

Thus the presumption of equal contribution to the marital assets applies, even though stock in the dealerships was held in husband’s name.

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Bluebook (online)
707 P.2d 64, 75 Or. App. 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-marriage-of-olinger-and-olinger-orctapp-1985.