In re Staveland

• Jurisdiction: Oregon
• Parties: In the MATTER OF the DOMESTIC PARTNERSHIP OF Kirsten Kari STAVELAND, Petitioner-Respondent, and Michael Jon FISHER, Respondent-Appellant.
• Citation: 433 P.3d 749,295 Or.App. 210
• Docket Number: A163944
• Court: Oregon Court of Appeals
• Decision Date: 05 December 2018

295 Or.App. 210

433 P.3d 749

In the MATTER OF the DOMESTIC PARTNERSHIP OF Kirsten Kari STAVELAND, Petitioner-Respondent, and Michael Jon FISHER, Respondent-Appellant.

A163944

Court of Appeals of Oregon.

Argued and submitted December 5, 2017.

December 5, 2018

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

Robert T. Scherzer, Portland, argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

GARRETT, J.

Respondent Fisher appeals a general judgment of dissolution of a nonmarital domestic relationship and a supplemental judgment awarding attorney fees to petitioner.Respondent asserts three assignments of error.In the first assignment, he argues that the trial court erred when it ruled that petitioner Staveland was entitled to half of the appreciation in value of respondent’s house (the Dickinson house) that occurred while she lived there with respondent.In a second assignment, respondent challenges the trial court’s calculation of appreciation, arguing that the court erred by awarding petitioner appreciation that accrued after the parties separated.In a third assignment, respondent asserts that the trial court erred in awarding petitioner attorney fees without adequately explaining the basis of its award.For the reasons below, we reverse and remand the general judgment for recalculation of the division of property, vacate and remand the supplemental judgment, and otherwise affirm.

Neither party seeks de novo review, ORS 19.415(3), nor do we conclude that it is warranted.SeeORAP 5.40(8)(c)(explaining that this court will exercise de novo review 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.’ "Schwindt and Schwindt , 290 Or. App. 357, 359, 414 P.3d 859, rev. den. , 363 Or. 119, 421 P.3d 353(2018)(quotingMorton and Morton , 252 Or. App. 525, 527, 287 P.3d 1227(2012) ).

The parties met in April 2011.In June of that year, respondent purchased the Dickinson house for $467,500.Petitioner did not contribute to the purchase, and title was taken in respondent’s name only.The parties moved in together at the Dickinson house later that month.

When the parties moved in together, they talked about sharing living expenses.Respondent agreed to pay the mortgage, property taxes, homeowners’ insurance, and some food expenses; petitioner agreed to pay for "everything else," including utilities, car insurance, and other food expenses.Overall, respondent paid more expenses than petitioner.Each party also worked to improve the house, including painting rooms, tiling and carpeting floors, and removing a wall between rooms.Overall, respondent did the majority of the work on most projects, and some projects were completed by respondent alone.All materials for the improvements were paid for by respondent.With respondent’s approval, petitioner made most of the decisions regarding the selection of furniture, color schemes, the arrangement of art, and other decorations.

Meanwhile, the parties kept their respective incomes and financial accounts separate.The one exception was a joint Vanguard investment account.The parties carefully tracked their respective contributions to, and interest in, that account.

Petitioner also owned a house on Ainsworth Street (the Ainsworth house), which she operated as a rental property during her period of cohabitation with respondent.Respondent held no interest in that property at any time.When the parties began cohabitating, the Ainsworth house was "underwater"(i.e. , had a market value less than the outstanding mortgage).At all times, petitioner solely assumed the liabilities and responsibilities associated with the Ainsworth house, including mortgage payments, taxes, and the collection of rental income, which petitioner kept separate.Respondent contributed no money and minimal labor toward that property; on three occasions, respondent fixed a toilet, installed a stove, and helped tenants move out.¹

In December 2011, respondent proposed marriage.Petitioner believed that marriage would have negative tax consequences.Thus, instead of getting legally married, the parties held a ceremony at the Dickinson house that resembled a wedding but was not accompanied by legal action to change the parties’ marital status.The parties distributed invitations that referred to the Dickinson house as "our house," and approximately 40 to 50 friends and family members attended, only some of whom understood that respondent and petitioner were not getting legally married.

Petitioner’s father conducted the ceremony, and the parties exchanged rings and vows and hired a professional photographer and band.After the ceremony, the parties told at least some friends and acquaintances that they were "married."

In March 2014, the parties’ son was born.Petitioner assumed a majority of the childcare duties, although respondent also provided some daily childcare.Petitioner paid for direct childcare expenses like clothes, diapers, food, and medical care.Respondent contributed to those costs indirectly by sometimes writing checks to petitioner.

In the fall of 2015, petitioner began to discuss separating from respondent.Respondent told petitioner that, if she was not going to be his partner anymore, she should start paying him rent.Petitioner suggested that she pay $1,000 per month.The parties never acted on that conversation, however, and petitioner moved out of the Dickinson house in December 2015.

Upon separating, the parties agreed to divide their separately owned financial accounts according to whose name was on the account.Respondent agreed that petitioner would keep all of her interest in the Ainsworth home, which had appreciated substantially during the parties’ relationship and was no longer "underwater."The parties agreed to divide the Vanguard account based on their respective contributions.The parties never discussed or reached any express understanding regarding their respective interests in the Dickinson house.

Petitioner brought this action for dissolution of the nonmarital domestic relationship, seeking custody of the parties’ son, and asserting an interest in one-half of the appreciation in value of the Dickinson house.At trial, the parties testified to their different views regarding the Dickinson house.Respondent testified that he never intended to share his assets with petitioner; petitioner, in contrast, said that she had viewed the Dickinson house as "our house" during the time that she lived there.

An appraiser hired by petitioner concluded that the Dickinson house was worth $635,000 as of October 19, 2016(near the date of trial).The appraiser also testified that the Dickinson house had appreciated 10.3 percent in the preceding year and estimated that, when petitioner moved out in December 2015, the Dickinson house might have been worth between $584,000 and $585,000.The appraiser then qualified that estimate, explaining that, although the estimated range as of December 2015 was "an indication" of what the house could be worth, that figure was less reliable than a true appraisal.

After the close of evidence, the trial court made the following findings regarding the Dickinson house:

"* * * [E]verybody agrees that legally the analysis is under [ Beal v. Beal , 282 Or. 115, 577 P.2d 507(1978) ] and what their intent was.And frankly, your intent [was] to be married.Your intent was to have a family and live together for the rest of your lives.You were very much in love and you wanted to get married, and * * * I know that you got advice from a tax person that it would cost you some money if you got married, and I’m not gonna go behind your decision.

"But it was clearly both of your decisions that because of the tax consequences that you understood would occur if you married, and you both decided that what you would do is get married but for the paperwork, but for the license and registering the marriage.

"You, frankly, held yourselves out as husband and wife.You bought rings.You exchanged vows.You * * * told people at work and probably people who are parents of—friends or playmates of [your son’s] that you were married, and the only people you * * * told the truth to were your very closest family and friends.

"And so there isn’t any question in my mind that your intention was to live as a married couple, to raise the child as a married couple in spite of the fact that you were not legally married. * * *

"* * * [T]here is no question [that respondent] chose the house, you paid * * * the down payment, you paid the mortgage, the deed’s in your name.And there also isn’t any question that as you² were testifying the first day * * * you referred to it as: We moved into our house; we fixed up our house; we painted our house; we had our wedding ceremony—or our non-wedding ceremony at our house.You invited people to come to our house.

"* * * I think probably until both of you met with lawyers to talk about what the * * * law is in this situation that you stake out your positions until you figured out what it needed to be in order to keep the home as for yourself, because there isn’t any question that * * * that was your family home, and your plan was to raise your child there.

"And there isn’t any question that you fixed it up together, that you each contributed to fixing up that home.And I’m sure that [respondent] paid a great deal more in terms of financial contribution.I’m sure that [petitioner] and other members of her family contributed significant physical labor and decision making about decor and colors and all of those things.

"You’ve lived in that house, it’s your family home, and you both cared for it and fixed it up and treated it as your family home.So * * * she is entitled to one-half of the increase in the value of the home.

"But the only truly solid number that I have for

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