Davis v. Lallement, A158531.

• Decision Date: 23 August 2017
• Docket Number: A158531.
• Citation: 401 P.3d 1230,287 Or.App. 323
• Parties: In the MATTER OF the MARRIAGE OF Melissa May DAVIS, fka Melissa May Reynolds, Petitioner-Appellant, and Clement Pierre LALLEMENT, Respondent-Respondent, and Nadjalisse Claire Reynolds-Lallement, Child 18 years of age or older but under 21 years of age.
• Court: Oregon Court of Appeals

287 Or.App. 323

401 P.3d 1230

In the MATTER OF the MARRIAGE OF Melissa May DAVIS, fka Melissa May Reynolds, Petitioner-Appellant, and Clement Pierre LALLEMENT, Respondent-Respondent, and Nadjalisse Claire Reynolds-Lallement, Child 18 years of age or older but under 21 years of age.

A158531.

Court of Appeals of Oregon.

Argued and submitted March 21, 2016.

August 23, 2017

Philip F. Schuster, II, Portland, argued the cause and filed the briefs for appellant.

Peter Bunch, Portland, argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.

ORTEGA, P. J.

Wife appeals the trial court's supplemental judgment granting husband's motion to modify spousal support. The court concluded that there was a substantial change in wife's economic circumstances and terminated husband's spousal support and life insurance obligations. Because we conclude that the court's factual findings regarding wife's access to her new husband's income are unsupported by the record, leaving us unable to determine whether wife's remarriage constituted a substantial change to her economic circumstances, we reverse and remand.

We decline to exercise our discretion to review de novoas wife requests because she has not demonstrated that this is an "exceptional case" warranting such review. See ORS 19.415(3) ; ORAP 5.40(8)(c). Accordingly, we recount the facts "consistently with the trial court's express and implied findings, supplemented with uncontroverted information from the record." Tilson and Tilson , 260 Or.App. 427, 428, 317 P.3d 391 (2013) (internal quotation marks omitted).

The parties were married for 20 years and have two children together. They divorced in 2011. As part of the dissolution judgment, the court awarded wife $2,000 per month in indefinite maintenance spousal support. The purpose of that initial award was to maintain wife's upper middle class standard of living, which the court concluded she could not maintain on her own. Wife is permanently disabled and received social security benefits in the amount of $1,131 per month at the time of dissolution. Husband, in contrast, made $10,025 per month.

In 2014, wife remarried. Before her remarriage, wife and her new husband, Davis, who had two children of his own from a prior marriage, signed a prenuptial agreement with the intent of defining "the respective responsibilities that each [would] have regarding their payment of separate and joint expenses during the marriage." After wife's remarriage, husband then moved, in relevant part, to terminate or reduce the spousal support award. He argued that there had been a change in wife's circumstances and that she now had sufficient income support from Davis to eliminate the need for spousal support. By that time, wife's disability payments had slightly increased to $1,209, and her and husband's older daughter was in college and no longer living at home full time.

The court held a hearing on husband's motion where it heard testimony from the parties, as well as Davis.¹ At the conclusion of the hearing, the trial court announced its findings on the record, stating:

"[T]he court may consider the combined income of wife and her spouse in determining whether wife's need for support continues substantially as it was originally, which is the test for whether modification or termination of spousal support is appropriate after remarriage. Today wife argued that her prenuptial agreement proves that her finances have not been commingled with those of her spouse, therefore her spouse's income should not be considered as something that helps determine whether her need for support continues substantially as it was originally.

"I have carefully considered whether the prenuptial agreement in this case has a preclusive effect on the presumption that [wife's] spouse's income supplements and combines with [wife's] income, reducing or eliminating her need for support from [husband]. I conclude that the prenuptial agreement is unpersuasive evidence of the couple's financial obligations. One compelling reason I reached that conclusion is that the prenup purports to segregate the spouse's incomes and obligations such that Mr. Davis is impliedly indemnified from financial obligation to [wife] or to [her children]. The provisions that purport to achieve that segregation, however, are contrary to Oregon law. Under ORS 108.045,^[2] during the duration of the marriage, a stepparent has a legal obligation to the family and to the stepchildren of a designated custodial parent. I do not believe the prenup * * * override[s] Mr. Davis's statutory financial obligations.

"Therefore, I believe that some portion of Mr. Davis's income is properly deemed to combine with Ms. Davis's

income for the purpose of determining whether her need for support continues 'substantially as it was originally' * * *.

"I find that half of Mr. Davis's monthly income, which is $3,718.00, should be combined with [wife's] income to compare her current financial picture to the financial picture that she had after the divorce judgment was entered in this case.

"Since [wife's] combined income with her new spouse raises her financial resources well above the total that the spousal support award achieved for her after the divorce, and since only her youngest child remains home full time at this point, I conclude that her need for support does not continue substantially as it was originally. For that reason I order that the spousal support award be terminated as of December 2014.

"Since spousal support is no longer appropriate, I am also eliminating the need for [husband] to continue life insurance for the benefit of [wife] as security for spousal support payments that will no longer be made."

On appeal, wife challenges the trial court's termination of the spousal support award and the life insurance requirement, raising various interrelated arguments in two assignments of error. Wife's arguments primarily concern the court's findings regarding her access to Davis's income and the effect of the prenuptial agreement as to that determination. Ultimately, however, we understand the crux of wife's argument to be that the trial court erred in its determination that wife had access to Davis's gross income and abused its discretion in terminating the spousal support award, in part because it failed to make an express finding that termination of the award was just and equitable under the circumstances.

Husband, in turn, argues that the trial court properly terminated the spousal support award and that wife failed to preserve two of her arguments. First, husband argues that wife failed to preserve her argument that the court failed to make an express finding that termination of the spousal support award was just and equitable. Further, husband argues that, even if wife's challenge was preserved,

the court did not err because its finding that termination of the award was just and equitable was implicit in its ultimate decision. We agree with husband that the court impliedly found that termination of the spousal support award was just and equitable, as that was the ultimate question. See Reaves and Reaves , 236 Or.App. 313, 319, 236 P.3d 803 (2010) ( "The ultimate inquiry * * * is whether a modification of support is 'just and equitable' under the totality of the circumstances."). Thus, we reject wife's argument that the court failed to make that determination.

Second, husband argues that wife did not preserve her appellate arguments challenging the court's conclusion that the prenuptial agreement was contrary to public policy under ORS 108.045. We agree with husband on that point. Although the court made findings on that specific issue sua sponteat the end of the proceedings, there is no indication that wife brought the alleged error to the court's attention at that point or in the weeks between the court making its oral findings and the final judgment being entered. As such, we conclude that wife did not preserve the arguments she now raises regarding the effect of a prenuptial agreement in light of ORS 108.045, and we do not address them further. See Mitchell and Mitchell , 271 Or.App. 800, 808, 353 P.3d 28 (2015) (an issue was not preserved where husband failed...