In re Mitchell

• Decision Date: 17 June 2015
• Docket Number: 1104319CV,A154284.
• Citation: 353 P.3d 28,271 Or.App. 800
• Parties: In the Matter of the Marriage of Vickie Lee MITCHELL, Petitioner–Respondent, and Sidney Floyd MITCHELL, Respondent–Appellant.
• Court: Oregon Court of Appeals

271 Or.App. 800

353 P.3d 28

In the Matter of the Marriage of Vickie Lee MITCHELL, Petitioner–Respondent

and

Sidney Floyd MITCHELL, Respondent–Appellant.

1104319CV

A154284.

Court of Appeals of Oregon.

Argued and Submitted Dec. 9, 2014.

Decided June 17, 2015.

Jeffrey E. Potter, Eugene, argued the cause for appellant. With him on the briefs was Gardner, Potter, Budge, Spickard & Cascagnette, LLC.

Nathan J. Ratliff, Klamath Falls, argued the cause for respondent. With him on the brief was Parks & Ratliff, PC.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.

Opinion

TOOKEY, J.

Husband appeals a general judgment of dissolution, challenging the trial court's division of husband's military retirement benefits, award of spousal support to wife, and order that husband maintain life insurance, naming wife as beneficiary. He raises four assignments of error on appeal, arguing that the court erred when it (1) awarded wife 50 percent of the divisible portion of husband's military retirement benefits, (2) awarded wife spousal maintenance support in the amount of $1,000 per month, for an indefinite period of time, (3) awarded wife transitional support in the amount of $3,500 per month for 60 months, and (4) ordered husband to maintain a life insurance policy, naming wife as beneficiary, for at least $750,000 as long as husband is required to pay spousal support, and then at least $250,000 thereafter. We affirm with regard to husband's first assignment of error and reject, without discussion, husband's third assignment of error; however, for the reasons stated below, we reverse with regard to husband's second and fourth assignments of error and remand for reconsideration the portions of the judgment relating to spousal maintenance support and life insurance.

We begin with a brief overview of the facts, and we provide additional facts as needed in our discussion below. Husband does not request de novo review of this case, and we decline to exercise our discretion to review this case de novo. See ORS 19.415(3)(b) (“Upon an appeal in an equitable action or proceeding other than an appeal from a judgment in a proceeding for the termination of parental rights, the Court of Appeals, acting in its sole discretion, may try the cause anew upon the record or make one or more factual findings anew upon the record.”); ORAP 5.40(8)(c) (we exercise our discretion to review de novo only in “exceptional cases”). Therefore, we are “bound by the trial court's findings of historical fact that are supported by any evidence in the record.” Porter and Griffin, 245 Or.App. 178, 182–83, 262 P.3d 1169 (2011). We present the facts consistently with that standard.

Husband and wife were married for 20 years and had two children, ages 16 and 12, at the time of the dissolution. Prior to the marriage, husband had obtained a bachelor's degree and served as a military officer in the Marine Corps. During the marriage, husband continued to serve in the Marine Corps, and he also obtained a master's degree. He retired from the military after 24 years of service, having served eight years before the marriage and 16 years during the marriage. After retiring from the military, and before the parties separated, husband worked in a county management position in Klamath Falls, Oregon. Then, after the parties separated, husband moved to California, where he had obtained a position as a Marine Corps Community Services Deputy Director, earning $10,000 per month.

Wife had also obtained a bachelor's degree before the marriage, and had worked as a manager at a retail clothing store. At times during the marriage, wife worked as a bank teller, retail clothing sales clerk, cheer coach, and legal secretary, but she was unable to fully utilize her education, training, and experience in a professional capacity, in part because the parties had relocated 11 times due to husband's military obligations. Wife also spent time as a stay-at-home mother and, although both parties were actively involved in their children's lives, wife was the primary parent. Wife was not employed at the time of the dissolution, but she was taking preliminary courses at Klamath Community College with the intent of ultimately obtaining a degree as a dental hygienist. She estimated that she would be able to earn $50,000 per year as a dental hygienist.

Prior to the dissolution proceedings, husband and wife entered into a mediated agreement in which they agreed upon issues of custody and parenting time in regards to their two children. In that agreement, they also agreed to split most of their property evenly; the only items of property that they disagreed upon, and asked the court to divide, were husband's military retirement benefits, the marital residence, and the value of husband's truck. At trial, wife also sought spousal support in the following amounts: transitional support in the amount of $1,500 per month for five years; compensatory support in the amount of $2,000 per month for 15 years; and maintenance support in the amount of $2,000 per month for five years, $2,750 for two years, and then $2,000 per month indefinitely. Wife also asked that husband be required to maintain a life insurance policy in the amount of $750,000 “to secure his child and spousal support obligation, and her share of the military retirement [benefits].”

The parties presented their evidence and testimony as to those issues and, at the close of the evidentiary portion of the proceeding, wife submitted written proposed findings of fact, and husband submitted written proposed findings of fact and conclusions of law. Regarding spousal support, husband suggested that wife should receive only transitional support, in the amount of $3,500 per month for eight months, and then $2,500 per month for 52 months. He also suggested that the life insurance policy that he would be required to maintain should be in the amount of only $250,000 for 10 years.

Closing arguments were held more than three weeks later, and the court subsequently issued a letter opinion in which it set forth its findings of fact and explained its decisions regarding property division, spousal support, and life insurance. Regarding the parties' property, the court (1) awarded wife 50 percent of the divisible portion of husband's military retirement benefits, (2) ordered the parties to sell the marital residence and divide the proceeds equally, and (3) rejected wife's request for an equalizing judgment for 50 percent of the value of husband's truck. Regarding spousal support, the court awarded wife (1) transitional support in the amount of $3,500 per month for 60 months, to allow her to complete her education and become fully employed as a dental hygienist; and (2) spousal maintenance support in the amount of $1,000 per month indefinitely. Finally, the court noted that “[l]ife insurance is necessary to provide income to replace both the retirement benefits being awarded to [wife] as well as spousal support should [husband] die”; thus, it ordered husband to provide life insurance, naming wife as beneficiary, in the amount of $750,000 “so long as he has a spousal support obligation,” and, thereafter, in the amount of $250,000.

Husband then filed a motion to reopen and supplement the record and for clarification, as well as an objection to the proposed general judgment. As discussed in further detail below, two of the issues raised in husband's motion related to the spousal support award and life insurance requirement set forth in the court's letter opinion. After a hearing, the court issued a second letter opinion and denied husband's motion. The court then entered the dissolution judgment, which incorporated its original letter opinion.

HUSBAND'S MILITARY RETIREMENT BENEFITS

In its first letter opinion, the trial court explained its division of husband's retirement benefits as follows:

“The court is to provide for the division of the retirement or pension plan as may be just and proper in all the circumstances. ORS 107.105(1)(f). [Husband] receives a military pension of $4634 together with a military disability pension of $1747. The general pension which is subject to division is taxable. The disability pension is neither taxable nor subject to division. [Husband] receives a total pension benefit of $6381 per month. He was in service 24 years, 16 during which the parties were married. If the court awarded [wife] a prorated portion of the entire pension, she would receive approximately $2100 per month (1/2 x 16/24 x $6381). Recognizing the court's limitation in dividing the pension and that [husband] is receiving a $1747 non-taxable benefit, I find it is just and proper under the circumstances to award [wife] one half of the divisible portion.”

Subsequently, in the dissolution judgment, the trial court awarded wife “an amount equal to fifty percent (50%) of the total amount of the member's disposable retired pay.”

On appeal, husband asserts that the trial court erred when it awarded wife 50 percent of the total amount of husband's military retirement benefits—specifically, husband contends that it was error to award wife any portion of his military retirement benefits that had accrued before the marriage. Husband makes two arguments in support of that contention. First, he argues that it was legal error to award wife a greater portion of the divisible military retirement benefits for the purpose of offsetting his nondivisible veterans' disability benefits, in violation of federal law.¹ Second, husband argues that the trial court abused its discretion in making the award, because neither wife nor the court explained why awarding half of husband's retirement benefits that had accrued before the marriage would be “just and proper in all the circumstances.” See ORS 107.105(1)(f) (when rendering a judgment of marital dissolution, a court may provide for “the division or other disposition between the parties of the real or personal property, or both, of either or both of the...