In re Brush

• Jurisdiction: Oregon
• Citation: In re Brush, 279 Or.App. 25, 377 P.3d 620 (Or. App. 2016)
• Docket Number: A152239
• Parties: In the Matter of the Marriage of Theresa Marie Brush, Petitioner–Appellant, and Patrick Jay Brush, Respondent–Respondent, and Melissa Ann Brush, Adult Child.
• Court: Oregon Court of Appeals
• Decision Date: 22 June 2016

279 Or.App. 25

377 P.3d 620

In the Matter of the Marriage of Theresa Marie Brush, Petitioner–Appellant and Patrick Jay Brush, Respondent–Respondent and Melissa Ann Brush, AdultChild.

A152239

Court of Appeals of Oregon.

Argued and submitted January 14, 2015.

June 22, 2016

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

Kevin L. Kelly argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

ORTEGA, P.J.

Wife appeals a judgment of dissolution, challenging the trial court's property division and its failure to award spousal support.In particular, she argues that the court should not have awarded husband $125,000 of the inheritance that she received from her father—either because the inheritance was not subject to the presumption of equal contribution under ORS 107.105(1)(f)(D) or because, if the presumption applied, she rebutted it.She also contends that the court erred in not awarding her spousal support because, at the time of dissolution, the parties had a significant income disparity and she was unable to meet her expenses without financial help from husband.We conclude that an amendment to ORS 107.105(1)(f), which was enacted during the 2011 legislative session and which removed separately held property acquired by inheritance from the presumption of equal contribution, became effective while the parties' domestic relations proceeding was pending and, under the terms of the legislation, should have been applied by the trial court to the parties' property division.Because the court applied the statute without regard to the amendment, we vacate and remand the property division for consideration under the correct statutory provision.Separately, we affirm the court's denial of spousal support.

The relevant undisputed background facts are as follows.The parties married in 1982, had six children during the marriage, and separated in September 2009.At the time of the dissolution trial, wife was 47 years old and husband was 50 years old.In 2007, wife inherited from her father assets that were worth about $450,000 at the time of dissolution trial.As relevant to this appeal, her father's will devised “the residue of my estate in equal shares to my two daughters.”Accordingly, the will did not mention husband.Wife kept the inheritance property separate from the marital estate, in part to protect it from husband's creditors.At the time of trial, wife was earning $2,284 per month and husband was earning between $5,000 and $6,000 per month.During the course of the marriage, however, husband had engaged in a number of failed business ventures.

Wife petitioned for dissolution in October 2009.The dissolution trial took place on four separate days between January and December 2011.The court announced its findings and judgment from the bench on December 14, 2011.As relevant to this appeal, the court determined that wife should pay husband a $125,000 equalizing judgment from her inheritance and that neither party should receive spousal support.The court entered a dissolution judgment reflecting its decision on July 23, 2012.The court vacated that judgment in November 2012 and entered a “corrected” dissolution judgment in April 2013.That corrected judgment, however, did not alter any terms of the judgment that are relevant on appeal.

On appeal, wife asserts that the trial court's property division incorrectly awarded husband part of her inheritance.First, she contends that the trial court erred by concluding that wife's inheritance was subject to the presumption of equal contribution under ORS 107.105(1)(f)(2011), amended by , Or. Laws 2011, ch. 306, § 1.She asserts that the court should have applied ORS 107.105(1)(f), which as amended effective January 1, 2012, removed separately held property acquired by inheritance from the presumption of equal contribution, and that it was error for the court to not apply the amended version of the statute.Second, and alternatively, she contends that even if the presumption of equal presumption is applicable to the parties' proceeding, she presented evidence that successfully rebutted the presumption, and the court erred in concluding otherwise.

For necessary context, we begin by describing the legislature's amendment of ORS 107.105(1)(f), the timing of the dissolution proceedings in this case, and the arguments wife made to the trial court regarding disposition of her inheritance.

When the parties' dissolution trial began in January 2011, ORS 107.105(1)(f)(C)(2011) provided, in relevant part, that “there is a rebuttable presumption that both parties have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held.”Accordingly, wife asserted in her trial memorandum that, under the case law that existed as of January 2011,¹she planned to rebut the presumption of equal contribution to acquisition of her inheritance with evidence that her father had not intended for husband to receive any part of the inheritance.

Meanwhile, during the 2011 legislative session, Senate Bill(SB) 386 (2011) was introduced to counteract our decision in Olesberg and Olesberg , 206 Or.App. 496, 136 P.3d 1202(2006), rev. den. , 342 Or. 633, 157 P.3d 788(2007).In Olesberg, we concluded that, in relation to the inheritance of one spouse,

“to rebut the presumption of equal contribution, it is not sufficient to show simply that the inheritance devolved only to husband and his siblings in equal shares.The fact that the mother's estate was divided three ways among her children does not establish that she had no intention to benefit wife, her daughter-in-law of 25 years.If that evidence were sufficient to overcome the presumption of equal contribution, the presumption would not only be rendered meaningless, but it would also incorrectly place the burden on the nonrecipient spouse to rebut it.”

206 Or.App. at 503–04, 136 P.3d 1202.

As introduced, SB 386 amended ORS 107.105(1)(f)(2011) so that separately held, gifted property was not subject to the presumption of equal contribution.The legislature passed SB 386 in May 2011 and the governor signed it in June 2011, with an effective date of January 1, 2012.Or. Laws 2011, ch. 306, § 1.As amended, ORS 107.105(1)(f)(D) provided that “[p]roperty acquired by gift to one party during the marriage and separately held by that party on a continuing basis from the time of receipt is not subject to a presumption of equal contribution.”²SB 386 also provided that the amendments to ORS 107.105“apply to domestic relations proceedings pending or commenced on or after the effective date of this 2011 Act.”Or. Laws 2011, ch. 306, § 2(emphasis added).

In December 2011, near the end of the dissolution trial, wife provided the court with a copy of SB 386 and argued:

“The Oregon legislature, in this past legislative session, addressed the issue of inheritances.It's—with a copy of the Senate Bill that I've given you, basically, Your Honor, what—what's commonly referred to as the Ol[e]sberg case, * * * the legislators determined or they decided that an inheritance received during the marriage that has been kept separate—as what's happened in this case—does not fall within the presumption of equal contribution.That goes into effect less than 30 days from now, January 1st, and we want it to be part of Your Honor's consideration in determining how to resolve this case.”

Later in the trial, wife reiterated her position that she had kept her inheritance separate, and “we think the proper state of the law today is as the legislators drafted it that goes into effect here in 30 days, and * * * there is no rebutting the presumption.The legislature has taken that out.”

At the end of the trial on December 14, 2011, the court issued an oral ruling from the bench, finding that wife had kept the inheritance separate, but that she had not rebutted the presumption of equal contribution.Accordingly, as part of the property award, the court ordered wife to pay husband an equalizing judgment of $125,000 “from the inheritance.”The court also ruled that neither party would receive spousal support.On July 23, 2012, the court entered the dissolution judgment, which, among other things, reflected the equalizing judgment and the denial of spousal support.Notably, the court never addressed the effect of SB 386 on the case in its oral or written rulings.

Wife contends that, given the timing of the amendment of ORS 107.105(1)(f)(D), the court erroneously applied the presumption of equal contribution to her inheritance.That argument turns on whether the parties' domestic relations proceeding was “pending” on January 1, 2012, the effective date of SB 386.SeeOr. Laws 2011, ch. 306, § 2(“The amendments to ORS 107.105 * * * apply to domestic relations proceedings pending or commenced on or after [January 1, 2012].”)(Emphasis added).She maintains that, although the trial ended on December 14, 2011, and the trial court made oral rulings from the bench that day, the case was “pending” on January 1, 2012, because the court had not yet entered a written dissolution judgment.

Husband claims that wife failed to preserve her argument because “she never asked the court to apply [SB 386] once it was actually in effect.”Husband argues that, because wife “never once” asked the court to apply the new law “during the almost 16 months it took for the court to enter the judgment on appeal,”we should conclude that wife failed to preserve her argument.

We reject husband's preservation argument.Our preservation rules function to give a trial court“the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made.”Peeples v. Lampert , 345 Or. 209, 219, 191 P.3d 637(2008).Pragmatically, “[w]hat is required of a party to adequately present a contention to the trial court can vary depending on...