In re Johnson

• Jurisdiction: Oregon
• Citation: In re Johnson, 277 Or.App. 1, 370 P.3d 526 (Or. App. 2016)
• Docket Number: C102470DRC,A153575.
• Parties: In the Matter of the MARRIAGE OF Nelva Lee JOHNSON, Petitioner–Respondent, and Bart Anthony Johnson, Respondent–Appellant, and Patricia Johnson–Ewing, Respondent below.
• Court: Oregon Court of Appeals
• Decision Date: 16 March 2016

277 Or.App. 1

370 P.3d 526

In the Matter of the MARRIAGE OF Nelva Lee JOHNSON, Petitioner–Respondent, and Bart Anthony Johnson, Respondent–Appellant, and Patricia Johnson–Ewing, Respondent below.

C102470DRC

A153575.

Court of Appeals of Oregon.

Argued and Submitted Nov. 6, 2014.

Decided March 16, 2016.

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

David N. Hobson, Jr., Beaverton, argued the cause for respondent.With him on the brief was Hobson and Associates, LLC.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.

ORTEGA, P.J.

Husband appeals a general judgment of dissolution, asserting four assignments of error.The first two involve husband's contention that the trial court erred by awarding wife indefinite transitional and maintenance support.In his third and fourth assignments of error, husband challenges the trial court's denial of his motion to supplement the record and its division of the marital property.We write to address husband's first, third, and fourth assignments of error, and affirm the award of maintenance support, the subject of the second assignment of error, without written discussion.We affirm the trial court's denial of husband's motion to supplement the record, reverse and remand the judgment for the trial court to reconsider the award of transitional support, and vacate and remand the property division for the court to make the appropriate findings.

Husband requests de novo review; however, because this is not an exceptional case, we decline to exercise our discretion to apply such review.SeeORS 19.415(3)(b)(we have discretion to apply de novo review in equitable actions);ORAP 5.40(8)(c)(stating that we will exercise our discretion to apply de novo review only in exceptional cases).Therefore, we"state the facts consistently with the trial court's express and implied findings, supplemented with uncontroverted information from the record."Stuart and Ely,259 Or.App. 175, 177, 313 P.3d 317(2013)(internal quotation marks omitted).

The parties met in 1979, shortly after wife graduated from high school, and moved in together that same year.They married in 1984 and had a son in 1986.The parties separated around June of 2010.Wife was 49 years old and husband was of similar age at the time of the dissolution.

Around the time of the parties' separation, wife suffered an apparent mental breakdown, the cause of which is not clear from the record.She displayed a "set of acting out behaviors" and delusional thinking, symptoms associated with psychotic process and post-traumatic stress disorder (PTSD).During that period of time, wife was drinking and smoking marijuana heavily.She also engaged in activities that led to criminal charges, including possession of marijuana, unlawful possession of a firearm, first-degree burglary, first-degree theft, and criminal mischief.Some of the charges were dismissed and others resulted in convictions.Husband described wife's behavior as bizarre and unusual for her.

Eventually, wife's condition stabilized, but she had by that time been fired from her job.Before her discharge, she had worked as a senior administrator at Intel, earning $25 an hour, plus bonuses and benefits.She holds a high school diploma and has completed some community college courses but has had difficulty finding new employment.The vocational expert who testified at trial opined that wife's criminal record and her discharge would prevent her from returning to a similar employment position and that she would have to either find entry-level clerical positions that were "felony-friendly" or seek low-wage, production positions that involved manual labor, which the vocational expert acknowledged would also be difficult for her to obtain.She estimated that it would take wife six to eight months to secure the latter type of employment.The vocational expert concluded that, professionally, wife would have to start all over again.She opined that wife's best option would be to develop a plan where she would seek unpaid volunteer work and participate in additional training to update her clerical and administrative skills, which would place her in a better position to reenter her previous field of employment.She also recommended that wife seek to have her criminal record expunged starting in January 2014, when she would first be eligible to do so, and that she should complete a six-week program through Better People, a nonprofit dedicated to helping convicts reenter the workforce.Wife testified that she was willing to follow the vocational expert's recommendations.

We move to facts relevant to the property division.During the years that the parties were together, they lived on property owned by husband's mother, Ewing.At first, they lived in Ewing's home, but they later moved to a separate rental property, also owned by Ewing, which consisted of a house on 10 acres of land.We refer to that property in its entirety as Tax Lot 400.The parties did not pay rent while living on that property, except for the first year or so after moving in, nor did they pay any property taxes or insurance.Then, in 2000 or 2001, Ewing gave the parties permission to tear down the rental house where they had been living and to build a new house on that lot.The "deal," according to Ewing, was that the parties"could live [in the new house] as long as they paid the property tax and insurance, but if for any reason they decided they didn't want to live there, if they[left] then it came back to [Ewing]."Eventually, Ewing, as the title holder of Tax Lot 400, placed the property into a trust.

After building the house on Tax Lot 400, the parties bought 80 acres of land adjacent to that lot.To acquire the 80 acres, they traded a 13–acre lot that they had previously purchased with wife's inheritance money and paid about $88,000 more.The $88,000 came from a line of credit that husband obtained from West Coast Bank; Ewing cosigned on the line of credit, but wife was not a named borrower.Husband testified that he started making $1,000 monthly payments on the $88,000 loan balance beginning in December 2004.However, as of the trial date—August 2012—the loan balance was approximately $73,000.When asked by the trial court why the balance was still so high, husband explained that he had borrowed an additional $20,000 on the line of credit in order to buy an excavator, as well as $9,000 to pay for his divorce legal fees.Husband then explained that the excavator was not listed as a marital asset because he had sold it for $19,000 and used the proceeds to make improvements on the 80–acre property, such as installing a septic system and improving the driveway.The appraiser who testified regarding the value of the 80 acres did not identify those improvements in his assessment and simply stated that the "80 acres looked to be forested, second growth" worth $375,000.

In addition to the 80 acres, husband acquired a one-third interest in 20 acres of another property; the remaining interest was split between Ewing and husband's brother.The three of them appeared to have owned the property jointly with a right of survivorship.Husband purchased his interest with about $5,000 that he inherited from his grandparents during the marriage.He testified that he did not commingle the inheritance money with marital assets at any point in time; instead, his inheritance went directly towards contributing to the $20,000 family purchase of the 20 acres, now valued at $95,000.

The trial court issued a letter opinion in which it made express findings of fact.It awarded wife $500 per month in indefinite transitional spousal support and $2,000 in indefinite maintenance support, stating:

"[Wife's] income, to follow the path set out by the vocational expert, will be $0 now to allow her to get back to reasonable income in the near future.Because of her financial situation she needs the support of [husband] until she can get back on her feet.

" * * * * *

"[Wife] is essentially unemployable now and would need 6–8 months to get a minimum wage job at a gas station, according to the vocational expert.

"Her record can potentially be cleared in January of 2014 and by following the path of volunteering and keeping her skills up she can be more successful then.

" * * * * *

" * * * [Wife] needs the support now so he will pay $500 per month transitional support and $2,000 maintenance support, both to be indefinite, since we do not know how long the transitional will be needed.When [wife] gets her record cleared and gets a reasonable paying job that will be considered a change sufficient for the court to consider a modification."

In the dissolution judgment, the court ordered wife to "make reasonable efforts to allow her to obtain reasonable paying employment in the future."

As to the division of property, the trial court found that neither wife nor husband had any interest in Tax Lot 400 and, thus, it did not assign value to that property.The trial court then called for the sale of the 80 acres and directed that the profits of the sale be used to pay the amount owed on the line of credit ($73,148), less the $29,000 that husband had taken out afterwards.That is, the court implicitly found that the $29,000 that husband had borrowed against the line of credit was not a marital debt.The court also awarded husband title to his one-third interest in the 20 acres after factoring its value into the marital property.As to that property, the court stated:

"In a 33 year marriage where [husband] is living in a $400,000 home rent free for life (in the court's opinion based on the testimony of all three of the parties and the fact they had already lived there rent free for over 30 years).It is just and proper to include all assets of the marital estate, therefore [husband's] 1/3 interest in [20 acres] is awarded to [husband] with the value of $32,300.It is also just and proper to award [wife] a slightly longer half of the

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