In re Berg

• Decision Date: 16 May 2012
• Docket Number: A146447.,052380D2
• Parties: In the Matter of the MARRIAGE OF Keith Ryder BERG, Petitioner–Respondent, and Debra Lynn Berg, Respondent–Appellant.
• Court: Oregon Court of Appeals

250 Or.App. 1

279 P.3d 286

In the Matter of the MARRIAGE OF Keith Ryder BERG, Petitioner–Respondent, and Debra Lynn Berg, Respondent–Appellant.

052380D2, A146447.

Court of Appeals of Oregon.

Argued and submitted on Feb. 03, 2012.

Filed May 16, 2012.

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

Laura Graser, Portland, argued the cause and filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

WOLLHEIM, J.

In this appeal from a judgment dissolving the parties' 18–year marriage, wife assigns error to the spousal support award of $15,000 per month for five years, contending that either the duration or the amount of support should be increased. Wife also assigns error to the property division, contending that the trial court erred in treating as a marital obligation indebtedness that the parties incurred for the remodel of their kitchen after the filing of the petition for dissolution. We conclude that the trial court did not err or abuse its discretion in either the spousal support award or the property division, and affirm.

On appeal, wife does not seek de novo review of the spousal support award. ORS 19.415(3)(b). She contends, however, that the award of support is not just and equitable, as required by ORS 107.105(1)(d). The ultimate determination of what amount and duration of support is just and equitable is discretionary. Bailey and Bailey, 248 Or.App. 271, 275, 273 P.3d 263 (2012). 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. See Kunze and Kunze, 337 Or. 122, 136, 92 P.3d 100 (2004) (applying standard in context of review of property division). Said differently, the trial court's award will be upheld if, given the findings of the trial court that are supported by the record, the court's determination that an award of support is “just and equitable” represents a choice among legally correct alternatives. See Gay and Gay, 250 Or.App. 31, 279 P.3d 265 (2012) (applying review standard); Shelton and Shelton, 196 Or.App. 221, 233–34, 100 P.3d 1101 (2004), adh'd to on recons.,197 Or.App. 391, 105 P.3d 944 (2005) (applying review standard). The trial court's findings are reviewed for evidence in the record. Porter and Griffin, 245 Or.App. 178, 182, 262 P.3d 1169 (2011).

The parties were married in August 1992 and separated in 2005, when husband filed for dissolution of the marriage. They had been married for 17 years at the time of trial in May 2009. At the conclusion of trial, husband was age 67, and wife was age 55. The parties each have children from other relationships, but there are no children from the marriage.

Husband has been a dentist since 1968. Although he was 67 years old by the end of the trial and testified that he could foresee slowing down in his practice, he has no immediate plans to retire. The trial court found that husband's gross monthly income is approximately $42,000.

Wife began working as husband's office manager shortly after the parties were married, and it is undisputed that she made significant contributions to the business and made it more profitable. Wife was paid for her work and, beginning in 1995, the parties drew equal incomes from the dental practice. Wife hopes to retrain as a massage therapist, and the trial court found that she has a potential monthly earning capacity of $4,167.

In 2006, after the petition for dissolution had been filed, husband decided to remodel the kitchen in the parties' home on Old Cherry Lane. He did so with wife's consent, incurring additional debt for the remodel in the range of $180,000 to $190,000. In part to pay for the remodel and in part to consolidate credit card debt, husband took out a second mortgage on the Old Cherry Lane house, increasing the amount owed from $63,000 to $253,000. At trial, the parties described different understandings of how that debt would be borne. Wife testified that she went along with husband's plan to remodel the house, which he would be living in, only on the condition that he would be solely responsiblefor the cost. Husband testified that he did not remember specifically agreeing to that arrangement. Rather, husband believed that the remodel expense would translate into an identical increase in the value of the home and the parties' equity; thus, he might have agreed with wife that the remodel expense would have no adverse financial impact on her.

The parties owned considerable property at the time of dissolution, and, by and large, the trial court split those assets equally, with each party receiving property valued at approximately $1.24 million. The issues on appeal concern only the award of spousal support and the characterization and division of the debt for the remodeling of the kitchen in the Old Cherry Lane house.

We first address the issue of spousal support. Wife initially requested a combination of compensatory, maintenance, and transitional support, stepped down from $18,000 per month for three years to $10,000 per month for three years and, finally, to $5,000 per month indefinitely. At trial, wife testified that, in the interests of becoming financially independent and in lieu of indefinite support, wife would accept $25,000 per month for a period of three years, followed by $20,000 per month for five years. In a trial memorandum to the court, wife's counsel continued to suggest an award of indefinite support as an alternative. The trial court awarded wife maintenance support of $15,000 per month for five years.

In determining what amount of maintenance support is just and equitable, the court considers the duration of the marriage, the ages of the parties, the physical and emotional health of the parties, the standard of living during the marriage, the parties' relative incomes and earning capacities, their training, employment skills, and work experiences, their financial resources, the tax consequences, and the parties' needs. ORS 107.105(1)(d)(C). Wife contends that, considering the length of the marriage, the self-indulgent lifestyle of the parties during the marriage, wife's high monthly expenses (wife's uniform support affidavit listed monthly expenses of approximately $35,000), and husband's much greater earning capacity, a just and equitable support award must be either indefinite in the amount of $15,000 per month, or for a period of eight years at the higher amounts requested by wife at trial, so that she could save for retirement.

Husband responds that, at...