Card v. Card

• Jurisdiction: Oregon
• Citation: Card v. Card, 298 Or.App. 511, 450 P.3d 42 (Or. App. 2019)
• Docket Number: A166512
• Parties: In the MATTER OF the MARRIAGE OF Debbie Dee CARD, Petitioner-Appellant, and Erick Eugene Card, Respondent-Respondent.
• Court: Oregon Court of Appeals
• Decision Date: 17 July 2019

298 Or.App. 511

450 P.3d 42

In the MATTER OF the MARRIAGE OF Debbie Dee CARD, Petitioner-Appellant, and Erick Eugene Card, Respondent-Respondent.

A166512

Court of Appeals of Oregon.

Submitted January 4, 2019.

July 17, 2019

Jody Meeker filed the brief for appellant.

No appearance for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

In this domestic relations case, wife appeals from a dissolution judgment entered by the trial court, raising two assignments of error. She first contends that the court erred by awarding her only three months of temporary, predissolution spousal support rather than the five months that she had requested. Wife also contends that the trial court erred when it denied her request for spousal maintenance support. For the reasons explained below, we conclude that the trial court abused its discretion, and we reverse and remand.

Wife requests de novo review. We decline to exercise our discretion to review de novo , because wife has not demonstrated that this is an "exceptional case" warranting such review. See ORS 19.415(3)(b) (court has discretion to apply de novo review in equitable actions); ORAP 5.40 (8)(c) (courts will exercise discretion to review de novo only in "exceptional cases"); see also ORAP 5.40(8)(a) (appellants seeking such review "shall concisely state the reasons why the court should do so"). Accordingly, we are bound by the trial court’s findings of fact if they are supported by evidence in the record. Berg and Berg , 250 Or. App. 1, 2, 279 P.3d 286 (2012).

The parties were married for 35 years. At the time of trial, husband was 58 and wife was 56. Husband had worked as a millwright from 1984 to 2011, but he was injured on the job and has not worked since. Husband had a net monthly income in the form of Social Security disability payments of $1,934, which exceeded his living expenses by approximately $800. Husband also had two retirement accounts with a total value of approximately $18,000. Husband had approximately $75,000 in medical debt, which had been outstanding since 2013. At the time of trial, husband had not made payments on that debt, but he told the trial court that "a certain amount" had been excused.

Wife has no employment history, having been the primary caretaker of the couple’s children, who were adults at the time of trial, and a homemaker for the entirety of the marriage. Wife is currently the primary caretaker of the couple’s 10-year-old grandson, although husband is the grandson’s legal guardian. Wife has been diagnosed with a number of medical conditions, including high blood pressure, anxiety, and a mass in her brain that requires frequent monitoring. At the time of trial, wife received $735 per month in Social Security benefits and $160 per month in food stamps, for a total monthly income of $895. Wife’s uniform support declaration listed monthly expenses of $1,590, which did not include her common expenses such as home repairs. Accordingly, the trial court found that wife’s monthly expenses exceeded her income by approximately $700.

The couple’s largest marital asset at the time of trial was a property in Blodgett (the Blodgett property). Husband and wife had lived on the property for much of the marriage, and wife continued to live on the property after the couple separated. The couple had executed a new land-sale contract in 2015 for the purchase of the property, under which they promised to pay the owner $72,000 in monthly installments of $600. At the time of trial, the couple owed $56,800 on the contract. At trial, the court found, based on testimony by a real estate expert, that the Blodgett property was worth approximately $107,500, which led the court to find that the couple had approximately $40,000 in equity in the property. However, the court also found that a potential buyer would be unable to secure financing to buy the property, due to the poor condition of the buildings and the remote location and difficult access.

Husband initially made the monthly payments on the contract following the couple’s separation in February 2017, but he stopped making payments in May of that year, approximately four months before the dissolution trial. Wife was unable to make any payments during that time. At trial, the property owner testified that he would consider foreclosing on the property if monthly payments did not resume.

In the dissolution judgment, the trial court awarded wife the Blodgett property and required her to assume the balance owing on the land-sale contract. The court also assigned to wife any child support payments received for the parties’ grandson. The court awarded to husband the entirety of his two retirement accounts and assigned to him responsibility for his medical debt. The court ordered husband to pay wife $600 per month for three months as "temporary spousal support"—rather than the five months requested by wife—to cover a portion of the payments owed on the land-sale contract. The court awarded less than the five months that wife had requested, because the court found that, although husband had the ability to pay the full amount, wife had benefited from living on the property during the couple’s separation. The court determined that it was appropriate to "offset" the "temporary support award" on that basis.

The trial court denied wife’s request for spousal maintenance support, concluding that it would not be just and equitable under the circumstances to award wife the Blodgett property and to require husband to make monthly support payments. In denying spousal support under ORS 107.105, the court acknowledged husband’s greater income. But the court concluded that "that’s offset by the fact that I’m giving the majority of all the assets to [wife]," and then stated that, "if [wife] can’t make the $600 a month payment, she can liquidate the [Blodgett] property and [obtain] somewhere around the value that her expert testified to." Wife appeals, assigning error to those rulings.¹

We review the trial court’s ultimate determination about a "just and equitable" amount of spousal support for abuse of discretion. Bailey and Bailey , 248 Or. App. 271, 275, 273 P.3d 263 (2012). Courts have a "range of reasonable discretion to fashion an equitable outcome," and we do not undertake to "micromanag[e] trial court decisions that disentangle the economic affairs of divorcing spouses." Cullen and Cullen , 223 Or. App. 183, 190, 194 P.3d 866 (2008). "We will not disturb the trial court’s discretionary determination unless the trial court misapplied the statutory and equitable considerations required by ORS 107.105." Berg , 250 Or. App. at 2, 279 P.3d 286. In other words, we will reverse and remand or modify a judgment if the court’s discretionary determination is not a "legally permissible one." Larkins and Larkins , 275 Or. App. 89, 97-98, 364 P.3d 1006 (2015). Moreover, the trial court’s findings must be supported by the record, and we therefore review the court’s findings for evidence on the record. Berg , 250 Or. App. at 2, 279 P.3d 286.

SPOUSAL MAINTENANCE SUPPORT

We begin with wife’s argument that the trial court erred when it failed to award spousal maintenance support. Spousal maintenance support is "a contribution by one spouse to the support of the other for either a specified or an indefinite period." ORS 107.105(1)(d)(C). The amount and duration of spousal support "should be based on circumstances existing at the time of dissolution." Abrams and Abrams , 243 Or. App. 203, 208, 259 P.3d 92 (2011). In longterm marriages like the one in this case, "the primary goal of spousal [maintenance] support is to provide a standard of living to both spouses that is roughly comparable to the one enjoyed during the marriage." Id. at 207, 259 P.3d 92. Maintenance support "allows one financially able spouse to contribute to the support of the other, depending on the financial needs and resources of each party." Id . "The parties should be separated on as equal a footing as possible." Mitchell and Mitchell , 271 Or. App. 800, 811, 353 P.3d 28 (2015).

Factors that the trial court considers when deciding a just and equitable amount and duration of spousal maintenance support include, but are not limited to

"the duration of the marriage; the age of the parties; the physical, mental, and emotional health of the parties; the standard of living established during the marriage; the parties’ relative income and earning capacity; a party’s training, employment skills, and work experience; the financial needs and resources of each party; the tax consequences to each party; a party’s custodial and child support responsibilities; and any other factors that the court deems just and equitable."

Id. (citing ORS 107.105(1)(d)(C)(i) - (xi) ). No one factor is necessarily dispositive. Powell and Powell , 225 Or. App. 402, 407, 202 P.3d 183 (2009). The court has discretion to consider the statutory factors in light of its factual findings and other financial provisions of the judgment. Hughes-Kuda and Kuda , 286 Or. App. 554, 558, 399 P.3d 478 (2017).

A trial court’s authority over dissolution cases is "solely statutory." Baumgartner and Baumgartner , 95 Or. App. 723, 726, 770 P.2d 965 (1989). Although a court is authorized to divide the marital property between the parties under ORS 107.105(1), that statute generally "does not authorize a court to award property as spousal support." Johnson and Price , 280 Or. App. 71, 79, 380 P.3d 983 (2016) (internal quotation marks omitted; emphasis added); see also Brown and Albin , 219 Or. App. 475, 480, 183 P.3d 207 (2008) (stating same). An exception exists when the assets awarded in the property division may also generate new income that may be considered in determining future spousal support payments. See Johnson , 280 Or. App. at 79, 380 P.3d 983 (summarizing cases involving the exception). At the same time, "property division and support are related," and the spousal support award...