Bailey v. Bailey, 09DO0156DS

• Decision Date: 23 February 2012
• Docket Number: 09DO0156DS,A145725.
• Citation: 248 Or.App. 271,273 P.3d 263
• Parties: In the Matter of the MARRIAGE OF Blair Elgin BAILEY, Petitioner–Respondent,andKathy G. BAILEY, Respondent–Appellant.
• Court: Oregon Court of Appeals

248 Or.App. 271
273 P.3d 263

In the Matter of the MARRIAGE OF Blair Elgin BAILEY, Petitioner–Respondent,andKathy G. BAILEY, Respondent–Appellant.

09DO0156DS

A145725.

Court of Appeals of Oregon.

Argued and Submitted Oct. 3, 2011.Decided Feb. 23, 2012.

[273 P.3d 264]

Jeffrey E. Potter, Eugene, argued the cause for appellant. With him on the opening brief was Gardner, Honsowetz, Potter, Budge & Ford. With him on the reply brief was Gardner, Potter, Budge, Spickard & Cascagnette.

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

Before ORTEGA, Presiding Judge, and BREWER, Chief Judge, and HADLOCK, Judge.

BREWER, C.J.

[248 Or.App. 273] Wife appeals a dissolution judgment, arguing that the trial court erred in (1) awarding wife too little maintenance spousal support; (2) not requiring husband to maintain wife as a beneficiary on his whole life insurance policy until his spousal support obligation is fulfilled; and (3) dividing the parties' property in a manner that was not just and proper in all the circumstances. Because the notice of appeal in this case was filed after the effective date of the 2009 amendments to ORS 19.415(3), we have discretion whether to review the facts de novo.¹ However, neither party has sought de novo review, and we perceive no reason to exercise our discretion to conduct such a review. As explained below, we modify the spousal support award and husband's life insurance obligation, and otherwise affirm.

We state the pertinent facts as the trial court found them and as supplemented by our review of the record. The parties were married for 24 years. At the time of trial,

[273 P.3d 265]

husband was 56 and wife was 58. Husband was a veterinarian jointly operating a clinic with two partners, and for much of the marriage he had “earned a comfortable living.” The parties had a large and commodious home, traveled extensively, typically had a housekeeper, and made frequent contributions to their church and charities. The trial court found that, at the time of trial, husband's earned monthly income was “not less than $28,900” and that husband's total monthly taxable income in 2008 was $35,200. Wife has a college degree, and she had worked for a sheriff's office for 17 years; that employment ended about 13 years before the marriage was [248 Or.App. 274] dissolved. More recently, wife had worked part time for many years in various capacities, including bookkeeping, for husband's veterinary clinic. Wife had “work related skills and could enter the workplace soon.”

The parties had two children but, tragically, their son had died from a longstanding cancer condition several years before the dissolution. Wife performed a traditional homemaker's role in caring for the family and cared for the parties' son throughout his long and debilitating period of illness. At the time of trial, the parties' daughter was 18 years old and was a full-time college student. The dissolution judgment required husband to pay child support directly to the daughter and to maintain health insurance coverage for her. Those provisions are not at issue on appeal.

In the judgment, the trial court ordered husband to pay spousal support to wife in the amount of $5,000 per month ($3,500 maintenance support and $1,500 transitional support) through September 2011, $3,500 per month (all maintenance) through September 2017, then $1,500 per month indefinitely. The court did not award attorney fees to either party.

In its letter opinion, the trial court explained the spousal support award:

“It is clear that husband has an income that will significantly exceed that of wife, and for the indefinite future * * *. The court is convinced with husband's work habits that he will work for the length of time he deems necessary to accomplish his purposes, irrespective of his age. In addition, husband's income can be expected to remain considerable even after retirement with a sale of his business assets and partnership interests.

“The division of assets * * * provides each of the parties with significant assets, almost $2,000,000. Above and beyond this amount, husband has an interest in some of his family's assets which the court is allocating exclusively to him.”

In addition to his taxable income, husband has chosen to make the maximum $46,000 annual contribution to his 401K retirement plan. Furthermore, the clinic has paid [248 Or.App. 275] him an annual “bucket” payment, which is treated as a non-taxable form of expense reimbursement. For example, in 2009, husband received $26,139, which covered...