In re Domestic Partnership of Joling

Decision Date15 May 2019
Docket NumberA165778
Citation443 P.3d 724,297 Or.App. 568
Parties In the MATTER OF the DOMESTIC PARTNERSHIP OF Ronald Dean JOLING, Jr., Petitioner-Appellant, and Jackie Diane Joling, Respondent-Respondent.
CourtOregon Court of Appeals

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

Margaret H. Leek Leiberan, Portland, argued the cause for respondent. Also on the brief was Jensen & Leiberan.

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


Petitioner appeals from a judgment that dissolved petitioner's domestic relationship with respondent. Among other things, the judgment divided the parties' property and awarded their primary asset, their previously shared home, entirely to respondent (less some set offs that are not in dispute before us). Because the evidence does not support a reasonable inference that the parties intended that respondent would receive the entirety of the home in a property division, we conclude that the trial court abused its discretion and reverse and remand for the trial court to reconsider the division of the parties' real property.

We first address our standard of review. Because an action to dissolve a domestic partnership is an equitable proceeding, Branam and Beaver , 225 Or. App. 630, 634, 202 P.3d 886 (2009), we have discretion to review the facts and record de novo . ORS 19.415(3)(b). However, petitioner has not sought de novo review, and this is not the type of exceptional case where we would exercise our discretion to engage in such a review. Staveland and Fisher , 295 Or. App. 210, 212, 433 P.3d 749 (2018), rev. allowed , 364 Or. 723 (2019) ; see also ORAP 5.40(8)(c) (stating that we will exercise our discretion to review de novo "only in exceptional cases"). "Consequently, we are bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record." Staveland , 295 Or. App. at 212, 433 P.3d 749 (citations and internal quotation marks omitted). We review a trial court's division of property in the dissolution of a nonmarital domestic relationship for an abuse of discretion. Id . at 218, 433 P.3d 749.

Petitioner and respondent participated in a religious wedding ceremony in California in 1993. The parties, however, decided not to obtain a California wedding license. Petitioner's father, a self-ordained minister who performed the marriage ceremony, told respondent that a marriage license was unnecessary because "marriage is between God and the couple" and incorrectly informed her that she and petitioner would be legally married in any event because Oregon had common-law marriage.

During the ceremony, the couple exchanged vows and signed a covenant. Petitioner vowed that he would "love, honor, and care for" respondent. In return, respondent vowed that she would "love, honor, and obey" petitioner. The parties also exchanged traditional vows that they would "take" each other as "wedded husband" and "wedded wife," "to have and hold from this day forward. For better, for worse; for richer, for poorer; in sickness and in health; to love and to cherish 'til death do us part." The written marriage covenant stated that "Groom [petitioner], and Bride [respondent] before God and witnesses were united in Holy Matrimony." The covenant was signed by petitioner, respondent, the minister, and 10 witnesses.

For 21 years following that ceremony, petitioner and respondent presented themselves to their community as a married couple. They cohabitated, had three children (only one of whom was still a minor at the time of dissolution), and listed their tax status as married when preparing their tax forms, which were sometimes filed jointly and sometimes separately.

For the duration of their partnership, the parties divided duties of work and family life. Petitioner worked outside the home as a general contractor. Respondent maintained the parties' home, raised the children, and, for a time, homeschooled them. Respondent testified that her work at home included cooking, cleaning, laundry, shopping, gardening, and helping to build the family home. She did "everything" when it came to household chores. In doing so, she sacrificed opportunities for further education or to obtain other job skills. Respondent also held various jobs outside the home to supplement the family income, including working at an auto parts store, as a secretary and data entry clerk, and as a teacher's assistant. The parties maintained that general arrangement for 21 years.

With regard to the parties' family home, petitioner had saved approximately $50,000 prior to the marriage ceremony, and, of that amount, he used $24,000 as a down payment for the property on which they would later build the home. Petitioner also invested approximately $25,000 for supplies to build a barn on the property. Petitioner built the family home on the property, and respondent worked along-side petitioner in that effort. The couple also titled the deed to their home as "a married couple." Respondent presented expert testimony that the home was appraised at some point before trial at $488,900.

The parties permanently separated in October 2014, when petitioner left the family home. After he left, petitioner continued to pay for respondent's and the children's living expenses. Petitioner and respondent decided to divorce in early 2015. At some point after that decision, the parties learned from their attorneys that, because they did not have a state marriage license, they were not legally married. Petitioner testified that, after he learned that he and respondent were not legally married, he believed he no longer had an obligation to support her. In the fall of 2015, petitioner significantly reduced the amount of support that he paid for respondent's household and personal expenses but continued to pay child support.

Petitioner petitioned for custody of the parties' minor child and dissolution of their domestic partnership. Respondent counterclaimed for breach of a claimed contract of marriage. Respondent's counterclaim is based, in part, on the premise that petitioner breached his vows to support her when he stopped fully supporting her in the fall of 2015.

Based on these facts, the trial court concluded that petitioner had breached an express and implied contract of marriage and that, as damages for that breach, respondent should be awarded the entirety of their family home (less a set off of $24,000 for petitioner's initial down payment that came from his premarriage-ceremony funds and other smaller set offs not at issue). It appears that the court awarded the entirety of the home to respondent because, among other reasons, it was the parties' largest asset and the court questioned whether it had authority to award spousal support in a case involving a domestic partnership that did not result in a legal marriage. The court reasoned as follows in a letter opinion:

"In summary, this is a marriage just like any other, except for the marriage license. *** [U]nder normal circumstances, this would be a case where [respondent] would certainly be entitled to significant spousal support.
"Assuming that the Court of Appeals has ruled that spousal support is not allowed, in a domestic partnership case (and not in a partition case), and that is an unbending principle even though the facts in Brazell v. Meyer , [42 Or. App. 179, 600 P.2d 460 (1979) (rejecting spousal support in a domestic partnership) ], are different than the facts in this case; then the respondent has advanced several arguments that she should, nevertheless, be entitled to spousal support and/or damages."

The court also concluded that it was more appropriate to award respondent the house because respondent had testified that, "if she were awarded typical spousal support in periodic payments, she has been informed by petitioner that he would not pay those; and because he is self-employed, it would be difficult for her to collect subsequent payments." Thus, the court awarded the family home to respondent apparently as a substitute for an award of spousal support. The court specifically ruled, however, that respondent was not entitled to an award of on-going spousal support.

Instead, the trial court ruled in favor of respondent on her breach of contract counterclaim, finding that petitioner breached a contract that was formed by the parties' vows, the signed covenant, and subsequent conduct. The contract, according to the trial court, had elements of an express contract, an implied contract, and a quasi-contract that was "established by the parties' conduct through the years." The trial court concluded that the vows spoken at the ceremony created the terms of the contract:

"[A] party who has contributed services to a relationship may attempt to recover for the value of the services under one of three theories—express contract, implied-in-fact contract, or a quasi-contract.
"* * * * *
"The express contract, is the ‘marriage covenant’ document, that the parties and witnesses signed on the date of their marriage and the oral wedding vows, including petitioner's pledge, at the marriage ceremony to ‘love, honor, and care for the respondent. (emphasis added). Finally, the conduct of the parties, as mentioned above, is in every way consistent with a true married couple."

The trial court relied on McHenry v. Smith , 45 Or. App. 813, 609 P.2d 855 (1980), to determine that there was a contract created between the parties. In McHenry , we held that a contract between an unmarried couple that "contemplated all the burdens and amenities of married life" is enforceable. Id . at 816, 609 P.2d 855 (internal quotation marks omitted). The court further concluded that petitioner breached the contract when petitioner stopped making full payments for household bills to respondent and when he repudiated the contract by asserting he was never legally married to respondent, because he "understood [that] he...

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  • Nonmarital Contracts.
    • United States
    • Stanford Law Review Vol. 73 No. 1, January 2021
    • January 1, 2021
    ...North Carolina Suvillaga, No. 17 CVS 244,2019 WL 386853 (N.C. Super. Ct. Jan. 28,2019) In re Domestic Oral Oregon Partnership of Joling, 443 P.3d 724 (Or. Ct. App. 2019) Case Outcome Lytle V. Newell, Invalidating a contract for services because 74 S.W. 693,693 it facilitated "illegal sexual......

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