In re Morton

• Jurisdiction: Oregon
• Parties: In the Matter of the Marriage of Cynthia R. MORTON, Petitioner–Respondent, and Ronald E. Morton, Respondent–Appellant.
• Citation: 252 Or.App. 525,287 P.3d 1227
• Docket Number: C091952DRA; A146005.
• Court: Oregon Court of Appeals
• Decision Date: 26 September 2012

252 Or.App. 525

287 P.3d 1227

In the Matter of the Marriage of Cynthia R. MORTON, Petitioner–Respondent, and Ronald E. Morton, Respondent–Appellant.

C091952DRA; A146005.

Court of Appeals of Oregon.

Argued and Submitted April 18, 2012.

Decided Sept. 26, 2012.

Daniel S. Margolin, Portland, argued the cause for appellant.With him on the briefs was Stephens Margolin PC.

Laura Graser, Portland, argued the cause and filed the brief for respondent.

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

HADLOCK, J.

Husband appeals a judgment of dissolution, challenging the trial court's spousal support award to wife and its division of the parties' property and debts.We reject his challenge to the spousal support award without discussion and write only to address the division of the property and debts.We conclude that the trial court acted within its discretion in making the division and therefore affirm.

At the outset, we address the scope of our review.Husband asks that we exercise our discretion under ORS 19.415(3) to review the record de novo.We decline to do so.SeeORAP5.40(8)(c)(“The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases.Consistently with that presumption against the exercise of discretion, requests [for de novo review] are disfavored.”).Therefore, 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.¹Sconce and Sweet,249 Or.App. 152, 153, 274 P.3d 303,rev. den.,352 Or. 341(2012).

The parties were married in 1995.The dissolution petition was filed in 2009.At the time of trial, in 2010, husband was 63 years old and wife was 48.The parties have no children together, though husband has two adult children from a previous marriage.Shortly after the parties married, they purchased a home on Kiowa Court in Tualatin.Both parties are in good health physically, but wife has mental-health difficulties.At the time of trial, wife had been seeing a psychiatrist, Dr. Stark, for nine years.According to Stark, wife has a high IQ, but he diagnosed her with Asperger's Syndrome, type-II bipolar disorder, attention deficit hyperactivity disorder, and mixed personality disorder.Stark gave wife a “global assessment of functioning” test, which psychiatrists use to determine whether a patient should receive inpatient or outpatient care.A score between 41 and 50 indicates “serious impairment in social, occupation, or school functioning”; a score below 41 supports giving inpatient treatment.Wife's score was 42.A vocational-rehabilitation consultant, Martin, evaluated wife before trial and described her as having “a difficult time engaging” by making eye contact, interacting, and answering questions by offering information beyond simply answering the question itself.According to Martin, wife had “no ability to actually offer emotion in conjunction with a situation.* * * [I]t was as though [wife] was programmed, as though she was like a parrot who could repeat the words and obviously had been taught socially appropriate behaviors, but was just going through miming them, in essence.”

During the marriage, wife acted as the homemaker, doing roughly 85 percent of the housekeeping and yard work.She also worked from 1995 until 2006 as a transactions processor for a bank, earning $24,000 per year.Martin described wife's job as “four repetitive tasks that you do over and over and over again.It's sort of—it's copying, matching, copying, matching kind of basic, basic activities.”Wife did the same job, without promotion, for 11 years.In 2006, the bank closed the department that wife worked in and terminated her position.Shortly thereafter, the bank gave her another position, but she was unable to master the skills of the new job and was fired after four weeks.Wife has not worked outside the home since then.According to Martin, wife would need vocational rehabilitation services to have “any hope and chance of getting a job” and would be limited to minimum-wage work.

Throughout the marriage, husband worked as a lumber broker and was paid strictly on commissions.From 2004 to 2007, he earned over $150,000 per year.When the housing market began to suffer in 2008, his income decreased to less than $44,000, and the next year it decreased again to just over $16,000.Beginning in early 2008, husband's income came in part from taking draws against future earnings.At the time of trial, husband's income had not rebounded, and he owed his employer approximately $13,700 for draws he had taken.

Husband managed the parties' finances during the marriage.When wife was working, she testified, husband “did allow [her] to spend [her] own paycheck” for personal expenses.At some point, wife developed a spending problem.According to husband, wife's spending exceeded her income by thousands of dollars a month because she“would spend a lot of money on massages and a lot of money on pampering herself, facials, [and c]lothes * * *.”

Wife's father died in December 2003, leaving a substantial estate.He did not have a will, so the estate went into probate, and wife and her two siblings inherited it through intestate succession.The estate consisted of securities, cash, three apartment complexes, and the home that wife's father and stepmother had lived in.Wife's brother, Wall, served as the personal representative for the estate.The estate was not distributed until February 2008 because of uncertainty about how to distribute it.Ultimately, wife received title to one of the apartment complexes and some of the other assets.²The total value of her inheritance was nearly $1.25 million.

While the probate was pending, Wall generally dealt with husband, rather than wife, regarding the estate because husband had a better grasp of the matter.Wife hired an attorney, West, to help with the distribution, and he generally dealt with husband as well.Over the course of many phone calls and e-mail exchanges with Wall and West, husband helped to negotiate an agreeable distribution.The apartment complexes had been appraised early in the proceeding, but once a general agreement had been reached on how the property would be distributed, both husband and wife's sister asked Wall for updated appraisals.The new appraisals saved the estate some $12,000 in taxes.Husband also persuaded Wall to reduce his fee for being the personal representative by $8,000.

As noted above, wife lost her job in 2006, while the probate was pending.Because the parties anticipated that wife would receive a substantial amount of money when her father's estate was distributed, husband agreed that wife did not need to seek a new job.

At some point, wife contacted West about forming a trust for the inheritance.West prepared a draft living trust for her, which she was to take to the parties' accountant.Wife instructed West not to tell husband about the trust until it was executed and ready to be funded, because she thought husband would object and that keeping it from him until then would minimize the arguments that might result.For reasons not disclosed in the record, wife ultimately did not pursue the trust.

Shortly after the estate was distributed, the parties sold the apartment complex that wife had inherited.Wife's intention was to use the proceeds of the sale to buy a nicer apartment complex.Husband persuaded wife to wait for a year to make that purchase, by which time, he said, their stock holdings would have appreciated significantly in value, allowing them to buy a much nicer complex.Husband later learned that, to avoid paying capital-gains taxes on the sold property by making a “1031 exchange” for another commercial property, paperwork for the exchange had to be filed before the property was even listed for sale.Because the paperwork had not been filed, the parties incurred approximately $112,000 in capital-gains taxes on the sale of the inherited apartment complex.

As it turned out, the parties did not buy another apartment complex.Around the time that the inherited complex was sold, husband deposited $700,000 of the inheritance into his trading account and invested it in stocks.Over the course of the next two years, the stocks lost approximately $180,000 in value.During the same period, husband transferred $493,000 from the trading account into, at first, the parties' joint checking account and, beginning in March 2009, an account in husband's name only.

As noted above, husband's income began to decline sharply around the same time that wife received the inheritance, and both parties relied on the inheritance money to maintain, and even enhance, their lifestyle.Indeed, both spent inheritance money quite freely.Some of the money was used to pay off previous debts, but much of it was spent on entertainment, travel, elective surgeries and cosmetic procedures, furniture, clothing, a motorcycle, gifts for family members, and the like.As the trial court found, before wife received the inheritance, the parties' net income allowed them to spend an average of about $8,000 per month; during the two years between receiving the inheritance and the dissolution trial, their combined spending averaged more than $20,000 per month.

The parties' single biggest expenditure was a new house.In 2008, after they sold the apartment complex, husband believed that the housing market had dropped as low as it would go.Wife initially resisted buying a new house because she did not want to move, but husband persuaded her that a new home would be a good investment and that, if she made a down payment of $300,000, she would be reimbursed when they sold their Kiowa Court home.Wife agreed, and they bought a home on Cottonwood Street for $640,000, using $300,000 of inheritance money for the down...