In re Hughes-Kuda

• Jurisdiction: Oregon
• Citation: In re Hughes-Kuda, 286 Or.App. 554, 399 P.3d 478 (Or. App. 2017)
• Docket Number: A160747
• Parties: In the MATTER OF the MARRIAGE OF Kathleen Ann HUGHES-KUDA, Petitioner-Respondent, AND Alan Peter KUDA, Respondent-Appellant.
• Court: Oregon Court of Appeals
• Decision Date: 06 July 2017

286 Or.App. 554

399 P.3d 478

In the MATTER OF the MARRIAGE OF Kathleen Ann HUGHES-KUDA, Petitioner-Respondent, AND Alan Peter KUDA, Respondent-Appellant.

A160747

Court of Appeals of Oregon.

Argued and submitted January 5, 2017.

July 6, 2017

Laura Graser, Portland, argued the cause and filed the briefs for appellant.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent.

Before DeVore, Presiding Judge, and Garrett, Judge, and Duncan, Judge pro tempore.

DeVORE, P. J.

Husband appeals from the trial court's amended general judgment of dissolution. ORS 107.105. The judgment directed wife to pay husband spousal support of $2,750 per month for six and one-half years. Husband challenges the award, contending that the trial court erred as a matter of law by failing to award support indefinitely. We conclude that the trial court did not abuse its discretion, and we affirm.

Husband does not seek de novo review, ORS 19.415(3), and we do not believe such a review is warranted in this case. See ORAP 5.40(8)(c) (de novo review appropriate only in exceptional cases). As a consequence, we are "bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record, and we state the facts consistently with that standard." Morton and Morton , 252 Or.App. 525, 527, 287 P.3d 1227 (2012).

The parties were married for 17 years. Before meeting husband, wife had earned her medical degree and became a psychiatrist. Throughout the marriage, wife worked demanding hours. Before and during the marriage, husband owned several businesses.

The parties did not have children. The parties often ate separately, in part, due to wife's work schedule or her dietary preferences.

Husband did some laundry, and sometimes each did their own. At times, wife hired people to help with home chores.

The parties moved during the course of the marriage, living in Montana, North Dakota, and finally Oregon. The moves were prompted largely by wife's employment opportunities. At each location, husband started a new business—tiling businesses, a tree farm operation, and a car renovation business. Eventually, each business proved to be unsuccessful. Husband spent much of his time improving or remodeling the parties' homes. For at least four years of the marriage, wife rented a room closer to her work, living only part time with husband.

During the marriage, the parties kept separate finances. The parties did not have joint bank accounts or joint credit cards, and they did not purchase assets together. Wife paid all of the parties' household living expenses, including the mortgages, utilities, health insurance, home improvement costs, and other expenses. Wife also helped pay off husband's consumer debt several times. Generally, husband's financial contribution to the marriage was relatively insignificant. Occasionally, husband paid for restaurant dinners or movies, but, for the most part, husband did not spend his money on marital or household expenses. Any income husband derived from his businesses went into his personal account or went back into those businesses. In his business dealings, husband preferred to deal in cash and was secretive of how much money he had and how much debt he owed. At one point, husband had $25,000 in cash on hand, but none went toward household or marital expenses.

In 2013, the parties separated. Wife moved out of the house and rented a room from a friend. After separating, wife transitioned to forensic psychiatry because it paid well, was less demanding, and suited her health needs as she neared retirement age. Prior to the transition, wife had worked 70-hour weeks, experiencing depression, stress, high blood pressure, and weight gain. Husband continued to live in the parties' Oregon home, and, for a while, wife continued to pay the mortgage—about $4,800 per month. In October 2014, husband's elderly mother moved into the home with husband and began paying the mortgage on husband's behalf.

At the time of trial, wife was 63, and husband was 69. Although the parties had minor health issues, they were relatively healthy for their age.¹ The trial court found that wife could earn about $16,000 per month as a forensic psychiatrist and that husband's income was $969 per month from social security benefits. Husband testified that he "wasn't looking into retiring" and that he "never thought [he would] retire." Despite his unsuccessful ventures, there was no dispute that husband was a hard worker. He had a record between 2012 and 2014 of generating income: $54,245 in 2012; $51,284 in 2013; and $65,375 in 2014. The trial court found that it was "difficult to ascertain the source of those funds, except mortgage payments from mother, probable vehicle transactions[,] and the [tree farm business] consulting fee."

The trial court divided property and debt in a manner that is not at issue on appeal.² Among the factors contained in ORS 107.105(1)(d)(C) (noted below), the court considered especially the disparity in the parties' earning capacity, the duration of the marriage, the age and health of the parties, husband's positive work ethic, and wife's desire to "slow down." In the end, the trial court awarded husband spousal support of $2,750 per month for six and one-half years, which is when wife turns 70. It is that award that husband challenges on appeal.

Under ORS 107.105(1)(d), the trial court has discretion to award an amount and duration of spousal support that is "just and equitable." E.g. , Berg and Berg , 250 Or.App. 1, 2, 279 P.3d 286 (2012). We review the trial court's spousal support award for an abuse of discretion and "will not disturb the trial court's discretionary determination unless the trial court misapplied the statutory and equitable considerations required by ORS 107.105." Id . ;see Bailey and Bailey , 248 Or.App. 271, 275, 273 P.3d 263 (2012) (reviewing trial court's spousal support award for an abuse of discretion).

Husband argues that the award is not just and equitable, as required by statute. In his view, the trial court failed to recognize the "breadwinner/homemaker paradigm" and erred, as a matter of law, when failing to award indefinite spousal support.³ In determining maintenance support, ORS 107.105(1)(d)(C) requires that the trial court consider a number of factors:

"The factors to be considered by the court in awarding spousal maintenance include but are not limited to:

"(i) The duration of the marriage;

"(ii) The age of the parties;

"(iii) The health of the parties, including their physical, mental and emotional condition;

"(iv) The standard of living established during the marriage;

"(v) The relative income and earning capacity of the parties, recognizing that the wage earner's continuing income may be a basis for support distinct from the income that the supported spouse may receive from the distribution of marital property;

"(vi) A party's training and employment skills;

"(vii) A party's work experience;

"(viii) The financial needs and resources of each party;

"(ix) The tax consequences to each party;

"(x) A party's custodial and child support responsibilities; and

"(xi) Any other factors the court deems just and equitable."

Given this statute, the trial court has discretion to consider the statutory factors in light of its factual findings. Cullen and Cullen , 223 Or.App. 183, 190, 194 P.3d 866 (2008) ("In awarding spousal support, no one factor is dispositive." (Internal quotation marks omitted.)). In this case, the court did just that, expressly relying on its findings with reference to the statutory factors in reaching its conclusion. Accordingly, we reject husband's initial contention that the trial court erred as a matter of law by failing to apply the correct methodology.

The remaining question is whether the trial court abused its discretion in awarding husband spousal support of $2,750 per month for six and one-half years. See Brush and Brush , 279 Or.App. 25, 35, 377 P.3d 620 (2016) (the appellate court will not interfere with the trial court's determination of what constitutes a "just and equitable" support award unless there is an abuse of discretion). A pair of cases point to the answer.

In Berg , 250 Or.App. 1, 279 P.3d 286, the parties ended an 18-year marriage. The parties were past middle-age. One was a high-earning spouse, and the other was a low-earning spouse. The trial court's decision terminated spousal support after eight years, when the husband, the high-earning spouse, would turn 72. On wife's appeal, we concluded:

"[W]e agree with wife that, in a marriage of this length involving a large disparity in earning capacities, one might expect an award of longer duration. * * * However, as noted, the trial court did not make any findings explaining its award of support. Given husband's age at the end of the trial (67), his health (husband had had prostate surgery and had previously suffered and recovered from a stroke ), and the nature of his work, there is evidence from which the trial court could have found that it was unlikely that husband would work past the age of 72. Our role is not to second guess the trial court's reasoning or substitute our judgment for that of the trial court. We cannot say that either the amount or duration of the award determined by the trial court to be just and equitable was legally impermissible, i.e. , was an abuse of discretion."

Id . at 5, 279 P.3d 286. We affirmed.

In Jacobs and Jacobs , 179 Or.App. 146, 39 P.3d 251 (2002), the parties had a long marriage and uncommon financial circumstances. The parties had been married for 22 years. The wife was 51, and the husband was 61. The parties...