Branam and Beaver

• Decision Date: 11 February 2009
• Docket Number: 05DR0404.,A133414.
• Citation: 202 P.3d 886,225 Or. App. 630
• Parties: In the Matter of the DOMESTIC PARTNERSHIP OF Jan Elaine BRANAM, Petitioner-Respondent, and Randy O'Neil BEAVER, Respondent-Appellant.
• Court: Oregon Court of Appeals

202 P.3d 886

225 Or. App. 630

In the Matter of the DOMESTIC PARTNERSHIP OF Jan Elaine BRANAM, Petitioner-Respondent, and Randy O'Neil BEAVER, Respondent-Appellant.

05DR0404.

A133414.

Court of Appeals of Oregon.

Argued and Submitted September 10, 2008.

Decided February 11, 2009.

Clayton C. Patrick, Portland, argued the cause and filed the briefs for appellant.

Frank C. Rote, III, Grants Pass, argued the cause for respondent. With him on the brief was Brown, Hughes, Bird, Rote & Brouhard, LLP.

Before ARMSTRONG, Presiding Judge, and HASELTON, Judge, and ROSENBLUM, Judge.^*

ARMSTRONG, P.J.

Randy Beaver appeals a judgment in an action to dissolve his domestic partnership with Jan Branam. In its judgment, the court gave each party an equal share of the appreciated value of the home in which the parties had lived, but it reimbursed to Branam the money that she had paid to purchase the home. Beaver contends that the court erred in reimbursing the purchase price to Branam. He also assigns error to the court's refusal to admit into evidence a letter that Branam's attorney sent to Beaver on the sale of the home. For the reasons explained below, we affirm.

Branam and Beaver moved to Oregon from California in 1996 after the death of Branam's husband, Jim. Beaver had been the captain of a fishing boat owned by Jim, and Branam and Beaver began seeing each other socially after Jim's death.

Beaver first earned his captain's license to operate ocean-going vessels in 1987. Beaver testified that, to receive his license, he "had to put in 100 days on the ocean minimum, * * * [get] six other captain's signatures * * * and * * * take a two and a half day [C]oast [G]uard exam, which consists of about five or six different types of things; navigations skills, all kinds of stuff." Beaver earned his livelihood working on the ocean, and his captain's license allowed him to "go anywhere up and down the coast and get a job. That license is good for 200 miles off shore anywhere in the world." According to Beaver's testimony, a captain's license is not necessary for a person to operate commercial fishing vessels, but it is necessary in order to carry members of the public on a vessel. Beaver earned approximately $35,000 per year as a fishing-boat captain. He testified that, if he gave up his captain's license and later sought to have it reinstated, he would have to start over and fulfill all of the requirements anew.

Accordingly, when the parties discussed moving to Oregon and away from Beaver's work as a boat captain in California, Beaver sought assurances from Branam that he would not be "out on the street in a month, in a year, 10 years, 20 years[.]" "If I was going to give all that up and move up here I wanted to make sure that I was going to basically have something." He testified that "I told her I didn't want to move up here unless I got * * * my name on the house to make sure that I at least had a place to live," and that Branam had told him she had "enough money invested [that] we'd never have to work again."

Branam inherited some $500,000 from her husband's estate. She used roughly $170,000 of those funds to purchase a home in Cave Junction, and she put Beaver's and her names on the title to the home. The deed that conveyed the property conveyed it to Branam and Beaver, "not as tenants in common, but with the right of survivorship[.]" Branam testified, "I purchased the house, and his name was on it. I thought we would jointly take care of the house, and then if something happened to me, he'd have at least a place to live." When asked if she had intended to give Beaver the money that she had used to purchase the home, Branam answered, "No." Beaver testified that he understood "that if my name was on * * * the house, half the house belonged to me." Branam and Beaver did not discuss what would happen to the home if they separated; Beaver just said he wanted his name on it in the event that something happened to Branam or Branam died.

With his name on the title to the parties' home, Beaver moved to Oregon with Branam in 1996 and gave up his captain's license in 1996. After they moved to Oregon, neither party worked for several years, and Branam gave Beaver a monthly allowance. Branam paid the insurance and taxes for the home and all of the parties' bills. For the first few years, Branam did not ask Beaver to contribute financially to their joint expenses or pay rent. During the parties' cohabitation, Beaver contributed to the household by performing work on the house, including building a fence, building a deck, and gardening. After the parties separated, they had a tenant on the property, and Branam and Beaver each received one-half of the rent from the property.

The parties separated in October 2004, and Branam filed a petition for dissolution of domestic partnership and a complaint for recovery of real property and conversion of personal property. Before trial of the dissolution action, the parties sold the home, netting approximately $262,000 after sale costs, and the parties agreed that each of them would receive an initial payment of $40,000 from the sale proceeds, with the balance held in an account pending the outcome of the trial.

After trial, the court divided the remaining assets so that Beaver and Branam equally shared the appreciated value of the home, but Branam received credit for the payments that she had made to maintain the property after the parties' separation and the purchase price that she had paid for the home. Thus, Branam received $177,801.87 plus 97.6% of the interest earned on the proceeds held pending trial, and Beaver received $4,429.60 plus 2.4% of the interest. The court concluded that "the mutual intent of the parties * * * when the real estate was acquired, was to provide shelter and support for Mr. Beaver while the couple co-habitated, but not a portion of Ms. Branam's estate." Alternatively, the court concluded that, even if the intent of the parties was unclear, it was equitable to award Branam the purchase price that she had paid for the home and to divide the appreciated value of the home equally between the parties.

On appeal, Beaver assigns error to the court's division of the proceeds from the sale of the home, arguing that it was the intent of the parties to share the home equally and, hence, that the court should have divided the proceeds equally notwithstanding the parties' unequal contributions to the cost to acquire the home. Beaver also assigns error to the court's refusal to admit into evidence a letter from Branam's attorney that contains statements that Beaver characterizes as evidence of Branam's intent to share the home equally. Because an action to dissolve a domestic partnership is an equitable proceeding, we review the trial court's dissolution decision de novo. ORS 19.415(3); Wilbur v. DeLapp, 119 Or.App. 348, 351, 850 P.2d 1151 (1993).

We first consider Beaver's second assignment of error. He contends that the court erred in sustaining an evidentiary objection to the admission of a letter from Branam's attorney to Beaver. The letter was dated January 6, 2005, and sought Beaver's consent to list the home for sale with a designated realtor. In addition, the letter said:

"What I would like to do if possible, is speak with either you or your attorney, should you choose to obtain one, to see if we might reach an agreement along the lines discussed above. It would be our intention to have the agreement provide that after all of the expenses were paid, that the proceeds would be split fifty-fifty (50-50) between you and [Branam]."

Beaver sought to have the letter admitted at trial because, in his view, the quoted statement constitutes evidence of Branam's intention to share the house equally with him. Branam objected on the ground that the letter was inadmissible under OEC 408 as a settlement offer.¹ "OEC 408 provides that evidence of a compromise is not admissible unless it is offered for a purpose having independent relevance." Holger v. Irish, 316 Or. 402, 414, 851 P.2d 1122 (1993). Beaver counters that the letter does not expressly refer to settlement and, because there was no litigation pending between the parties when it was sent, it could not be a settlement offer. Alternatively, he argues that, even if it is a settlement offer, OEC 408 allows statements in settlement offers to be admitted when they are offered for a permissible purpose; here, he contends that the letter was offered as evidence of Branam's original intention about the property when she purchased it.

The trial court agreed with Branam that the letter was a settlement offer. The court also concluded that the letter is not evidence of Branam's intent at the time that she purchased the property, which is the relevant time frame to determine the parties' intention regarding the division of their property in this dissolution proceeding. The court concluded that, at most, the letter was evidence of her intention in January 2005 to split the proceeds of the estate evenly, which was several months after the parties had separated and Branam had moved out of the home. We need not resolve that dispute, however, because even if the letter were admissible, it would not alter our decision in this case on de novo review.

We turn to Beaver's challenge to the court's distribution of the sale proceeds of the parties' real property. In the dissolution of a domestic partnership, courts are required to divide property according to the express or implied intent of the parties at the time that they established their partnership. Beal v. Beal, 282 Or. 115, 123, 577 P.2d 507 (1978). If the court cannot discern the parties' intent, the court may exercise its equitable powers to reach a fair dissolution of the parties' partnership. Wilbur, 119 Or.App. at 351, 850 P.2d 1151 (citing Shuraleff v. Donnelly, 108 Or.App. 707, 714, 817 P.2d 764 (1991)). How the parties held legal title to real property is evidence of the...