In re Braun
| Citation | 461 P.3d 1086,302 Or.App. 778 |
| Decision Date | 11 March 2020 |
| Docket Number | A169190 |
| Parties | In the MATTER OF the MARRIAGE OF Rhonda Darlene BRAUN, Petitioner-Respondent, and Lavelle Herman BRAUN, Respondent-Appellant. |
| Court | Court of Appeals of Oregon |
George W. Kelly, Eugene, argued the cause and filed the brief for appellant.
John L. Barlow, Corvallis, argued the cause and filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
After losing his job, husband moved to terminate his spousal support obligation to wife, under ORS 107.135. The trial court entered a judgment continuing the support obligation but reducing its monthly amount from $1,800 to $900. On appeal, husband argues that the trial court abused its discretion, given its express finding that husband’s monthly income is "less than $1000" and the absence of any other findings to support his being ordered to pay nearly all of his income as spousal support. For the reasons that follow, we reverse and remand for further proceedings.
Husband requests de novo review but has not explained why this is an exceptional case, so we decline to conduct de novo review. See ORS 19.415(3)(b) ; ORAP 5.40(8). Accordingly, "[w]e state 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 divorced in May 2016. The trial court entered a stipulated general judgment of dissolution of marriage, signed by them, that included findings and addressed property distribution and spousal support. As stated in the judgment, at the time of their divorce, husband was 51 years old, wife was 58 years old, and they had been married for 17 years. The parties enjoyed a "comfortable standard of living" while married. Husband was employed by the Oregon Department of Corrections (DOC), earning a gross monthly income of $8,269, with eligibility for raises and opportunities for career advancement. Wife was unable to work due to a disability but had gross monthly income of $3,200 from disability, pension, and retirement payments and, at the time of the divorce, was anticipating additional monthly income from a rental apartment. The parties’ house, farm, and farming equipment were awarded to wife. Husband’s retirement account—then valued at roughly $60,000—was awarded to husband. Husband agreed to pay $1,800 per month to wife, indefinitely, as maintenance spousal support.
In late December 2017, husband was terminated from his DOC job. In January 2018, he moved to terminate spousal support, based on the change in his financial circumstances. Wife opposed the motion. The trial court held a hearing in September 2018, which lasted less than an hour, and at which husband was the only witness. The next five paragraphs recount husband’s testimony.1
Husband testified that, after losing his job, he submitted about three job applications per week but was unable to find employment. He had three job interviews, but he did not get one job because he does not have a college degree, and he did not get the other two jobs because the reason for his DOC termination—termination for cause based on a false statement on a travel expense report—had been publicized in the newspaper. In the past, husband owned a construction company, but he has hip problems that now restrict his ability to do that type of work.
After going "about three months without work," husband saw "an opportunity" and bought a restaurant for $225,000 in April 2018. His partner, JS, who lives with him, contributed $40,000; his mother contributed $35,000; and husband took a loan from the seller. Husband testified that his business expenses are $19,720 monthly, which includes paying two employees. JS does not receive any wages but receives $460 monthly as repayment of her investment. Husband pays himself $1,000 monthly from the business. Husband’s bank statement from June 2018 shows a $1,000 deposit, which husband testified was from the business. After paying business expenses and paying himself $1,000, the business "nets between $500 and $700 a month."
Prior to buying the restaurant, in the months immediately following his DOC termination, husband received money from DOC for his "final check" and "[his] deferred comp that [he] cashed out."2 After buying the restaurant, husband received another $15,000 or $16,000 from DOC as part of a settlement related to his termination.
At the time of the hearing, husband was in the process of purchasing a house for $150,000. He had recently been living in a camper for about four months. Husband had taken an $80,000 loan from an individual (not a bank) to purchase the house. Husband had also cashed out his retirement, netting him about $68,000 after federal taxes but before state taxes, to buy the house.
Husband testified that his personal expenses are $3,041.15 per month, of which "half" is paid by JS. That is, husband and JS each pay about $1,520 per month for husband’s personal expenses. It is unclear whether that amount includes the $670 house payment that husband will owe when his house purchase closes.3
At the close of the evidence, the parties gave closing arguments. Wife moved to dismiss, arguing that husband had not proved a change in circumstances, that his job loss was "voluntary," and that spousal support should be continued at $1,800 per month. Wife made no arguments as to what an appropriate amount of spousal support might be in the event that the trial court continued support but reduced the amount. For his part, husband summarized the evidence of his financial circumstances and argued that he could not afford spousal support. The court took the case under advisement.
The trial court subsequently issued a written opinion with findings. As to husband, the court found that husband is 53 years old, does not have a college education, was terminated from his employment in December 2017, did not leave his employment voluntarily or to avoid the support obligation, was denied unemployment, cashed out the retirement that he was awarded in the divorce to buy a business, has current monthly income of "less than $1000 per month," and hopes to grow the business. As to wife, the court found that wife has income of $2,863 per month,4 is "disabled and unable to obtain future employment income or assets," and received the home and farm in the divorce.
After stating its findings, the court concluded:
The court thereafter entered a supplemental judgment of modification, ordering husband to pay spousal support to wife in the amount of $900 per month, indefinitely, as well as ordering him to pay $9,900 in arrears, plus interest. The court later entered a supplemental judgment regarding attorney fees, ordering husband to pay $3,781 to wife for her attorney fees and costs. Husband appeals both supplemental judgments.
In his first assignment of error, husband challenges the supplemental judgment of modification, arguing that the trial court abused its discretion when it continued spousal support at $900 per month. When a party seeks modification or termination of spousal support, the trial court "must determine whether there has been a substantial, unanticipated change in economic circumstances since the time of the earlier award." Davis and Lallement , 287 Or. App. 323, 327-28, 401 P.3d 1230 (2017) (emphases, internal quotation marks, and brackets omitted); see also ORS 107.135. If there has been, the trial court "must determine what amount of support is just and equitable under the totality of the circumstances." Davis , 287 Or. App. at 328, 401 P.3d 1230 (internal quotation marks omitted). Here, no one challenges the trial court’s change-in-circumstances determination. The only disputed issue is the trial court’s "ultimate determination about a just and equitable amount of support," which we review for abuse of discretion. Tilson , 260 Or. App. at 432, 317 P.3d 391 (internal quotation marks omitted). "[T]here is a range of reasonableness for a ‘just and equitable’ award of spousal support." Brown and Brown , 259 Or. App. 618, 627, 315 P.3d 422 (2013).
Husband argues that the trial court abused its discretion in ordering him to pay $900 per month of spousal support, particularly given the court’s express finding that husband’s income is "less than $1000 per month." Husband argues that the court should have terminated support altogether—given that, as husband puts it, his "prior employment has ended, his new employment pays less than minimum wage, and wife is financially better off than he is"—or at least temporarily reduced support to a "nominal" amount. Noting the trial court’s lack of explanation for its ultimate determination, husband...
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