In re Varro

• Jurisdiction: Oregon
• Citation: In re Varro, 300 Or.App. 716, 454 P.3d 35 (Or. App. 2019)
• Docket Number: A166157
• Parties: In the MATTER OF the MARRIAGE OF Zoltan A. VARRO, Petitioner-Appellant, and Cynthia Varro, Respondent-Respondent.
• Court: Oregon Court of Appeals
• Decision Date: 27 November 2019

300 Or.App. 716

454 P.3d 35

In the MATTER OF the MARRIAGE OF Zoltan A. VARRO, Petitioner-Appellant, and Cynthia Varro, Respondent-Respondent.

A166157

Court of Appeals of Oregon.

Argued and submitted September 20, 2019.

November 27, 2019

John C. Howry, Medford, argued the cause for appellant. Also on the briefs was The Law Office of John C. Howry, P.C.

Kendell H. Ferguson, Grants Pass, argued the cause for respondent. Also on the brief was Sorenson, Ransom, Ferguson & Clyde, LLP.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J.

In this domestic relations case, which turns on evidence presented during the dissolution proceedings concerning the nature of dental training and the business of dentistry, husband appeals a general judgment of dissolution, an order, and two supplemental judgments. Husband assigns error to, among other things, the trial court’s (1) award of transitional spousal support to wife, and specifically the amount and the duration of that award; (2) denial of husband’s motion for reconsideration regarding the award of transitional spousal support to wife, which husband filed after wife found employment as a dentist; and (3) denial of husband’s motion to modify the award of transitional spousal support to wife, which husband argued was appropriate due to wife’s employment as a dentist.¹ For the reasons that follow, we affirm.

I. FACTS, STANDARD OF REVIEW, AND PROCEDURAL HISTORY

Husband requests de novo review; however, because we do not consider this to be an exceptional case, we decline to exercise our discretion to apply such review. See ORS 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").

Having declined husband’s request for de novo review, "we are bound by the trial court’s express and implicit factual findings if they are supported by any evidence in the record." Stewart and Stewart , 290 Or. App. 864, 866, 417 P.3d 438 (2018) (internal quotation marks omitted). If the trial court did not make express findings on a particular issue in dispute, "we assume that the trial court found the facts in a manner consistent with its ultimate conclusion." Id. (internal quotation marks omitted). We state the facts consistently with that standard.

In 2003, wife graduated from dental school. In 2004, wife met husband and they married in April 2006. At that time, wife was employed full time as a dentist, and husband was completing a radiology residency at Oregon Health & Science University (OHSU) in Portland, Oregon, the city in which wife was raised, and wife’s mother and stepfather reside.

During their marriage, wife discussed with husband the possibility of opening her own dental practice. During the dissolution proceedings, evidence was presented that wife wanted to open her own dental practice for several reasons, including "being successful as a dentist" and because owning a practice gives dentists an opportunity to "pick [their own] salary," insofar as they get to determine how many hours per week they work. Wife also believed that she would have greater control over her schedule if she owned a practice than if she pursued other avenues of employment in the dental field, and that would allow her to cater to her children’s schedules. Additionally, wife believed that she might be able to earn more money working a few days a week in a dental practice that she owned than in a dental practice that she did not own. In short, her ideal situation would be owning her own practice.

In June 2007, a little over a year after they were married, wife and husband moved to Vacaville, California, so that husband could complete a four-year commitment to the United States Air Force (USAF). Husband made that commitment prior to beginning his residency at OHSU, because he believed that it would make him a more competitive candidate when applying for radiology residencies.

After wife and husband moved to Vacaville, wife did not immediately start working outside the home because, as husband explained during the dissolution proceedings, wife and husband had just moved and they were trying to start a family. In June 2008, wife and husband had their first child.

Beginning in January 2009, husband was deployed overseas, and wife started working as a dentist one day per week. Around June or July 2009, when husband returned from deployment, wife began working two days per week as a dentist, primarily treating pediatric patients, which differs in many respects from treating adult patients. Wife stopped working around June 2010. In November 2010, the parties had their second child.

Around June 2011, after husband’s USAF commitment ended, the parties returned to Portland so that husband could complete a one-year radiology-related fellowship at OHSU. Wife was not working outside the home during husband’s fellowship in Portland.

In June or July 2012, after husband had completed his fellowship, wife and husband moved to Grants Pass, Oregon, where husband had received a job offer to work as an associate in a radiology practice. Wife and husband would have preferred to stay in Portland, but the job market for radiologists did not allow for it.

In August 2012, wife obtained employment working one day per week as a dentist in Grants Pass.² Wife experienced difficulty in that position. During the dissolution proceedings, wife explained that, in that position, she performed only the dental procedures that she felt she could perform without engaging in malpractice, which were "very limited," given her sporadic and limited work as a dentist following wife and husband’s move to Vacaville. She also explained that she was not confident with the procedures that she was performing at that job.

In August 2013, husband became a partner at the radiology practice in Grants Pass. As a result, husband’s income increased. He earned $496,266 in 2014 and approximately $542,000 in 2015.³

In contrast to husband’s continued career success and upward advancement, in April 2014, wife’s position at the dental clinic where she worked was eliminated. Wife explained during the dissolution proceedings that her position was eliminated by her employer’s chief financial officer, and that there was "probably a correlation" between the elimination of her position and her failure to "produce[ ]" at that job, and that at that job she "fell short" of the dental clinic’s goals.

In December 2014, husband filed a petition for dissolution and took the position that wife should be "awarded limited and reasonable transitional spousal support." Wife, for her part, sought spousal support and asked the trial court to allow her to move to Portland.

Wife explained that she sought spousal support because she would "need help with transitioning back into [her] field" and she believed that husband had left her in a very bad position. She had, in her view, sacrificed her career for her family so that husband could build his career, but once he reached the "top of his field" and was making "over half a million a year," husband "kicked [her] to the curb." She had "stopped everything" and "followed [husband] around," trusting that husband would "be [there] for [her]," but, instead, he was not. Wife explained that she was 47 years old and was "starting from scratch."

With regard to relocating to Portland, wife believed that relocating to Portland would increase the likelihood that she would be able to "actually really make it" as a dentist.⁴ During the dissolution proceedings, evidence was presented that the demographics of the Portland market would increase the likelihood of wife being able to open a successful dental practice. That is, in part, because the patient-to-dentist ratio in the Rogue Valley, where Grants Pass is located, makes it a "bad market" for someone to open a dental practice, and the demographics in Portland are "much better."⁵ As a result, a dentist opening a practice in the Rogue Valley would need to spend a substantial amount of money and time marketing the practice for it to become successful.

Evidence was also presented during the dissolution proceedings that the Rogue Valley is a better market in which to purchase an existing practice than it is to open a new practice. But, while approximately 32 dental practices were for sale in Portland around the time of the dissolution proceedings, only one dental practice was for sale within a 60-mile radius of Grants Pass, and that practice was listed at $815,000. As one witness observed during the dissolution proceedings, $815,000 is "a lot of dentistry."

During the dissolution trial, the parties thoroughly litigated wife’s employability and earning potential as a dentist, and presented evidence regarding various aspects of the dental industry; as is relevant to our analysis, we summarize some of the evidence below.

Husband called the manager of a vocational rehabilitation firm, Stan Potocki, who husband’s attorney had been retained to "do an assessment of the employability of" wife. Potocki opined that wife was "of course" employable as a dentist, because she was licensed to practice dentistry, and that wife needed no additional training to reenter the labor market. Potocki also opined that wife could find part-time employment in three months and full-time employment in six months.

Potocki also explained that there are different niches in the labor market for dentists. Specifically, according to Potocki, dentists can (1) open their own practice and be self-employed, (2) work as an associate dentist at a private practice as, "in essence," an employee, or (3) work in the public sector at a clinic. In his view, wife would be employable in any of those scenarios, but noted that "opening a practice[ ] would take quite a bit more of an endeavor businesswise." Potocki also stated that public sector dentistry typically pays less than private sector dentistry.

With...