In the Matter of The Marriage of Cathleen A. Barron

• Decision Date: 12 January 2011
• Docket Number: 961072025; A138072.
• Citation: 240 Or.App. 391,246 P.3d 500
• Parties: In the Matter of the MARRIAGE OF Cathleen A. BARRON, aka Cathleen Park, Petitioner–Respondent,andJeffrey L. BARRON, Respondent–Appellant.
• Court: Oregon Court of Appeals

240 Or.App. 391
246 P.3d 500

In the Matter of the MARRIAGE OF Cathleen A. BARRON, aka Cathleen Park, Petitioner–Respondent,andJeffrey L. BARRON, Respondent–Appellant.

961072025; A138072.

Court of Appeals of Oregon.

Argued and Submitted Oct. 6, 2009.Decided Jan. 12, 2011.

[246 P.3d 501]

Ridgway K. Foley, Jr., Portland, argued the cause for appellant. With him on the briefs were John Bassett and Greene & Markley, P.C.Ted A. Martin argued the cause and filed the brief for respondent.Before WOLLHEIM, Presiding Judge, and SERCOMBE, Judge, and DUNCAN, Judge.^*DUNCAN, J.

[240 Or.App. 393] Husband appeals the trial court's supplemental judgment reducing, but not terminating, his spousal support obligation to wife. Husband argues that the trial court should have terminated the support because the purpose of the support has been satisfied. Specifically, husband argues that the purpose of the support was to ensure wife could maintain a certain standard of living and that, as a result of her remarriage, wife has become able to maintain that standard without the support. On de novo review, ORS 19.415 (2007),¹ we agree and, therefore, terminate husband's spousal support obligation.

The relevant facts are as follows. Husband and wife were married for 24 years. They have nine children. Throughout the marriage, husband worked outside of the home and wife was responsible for maintaining the home and raising the children. The parties' marriage was dissolved in April 1998. The dissolution judgment awarded wife custody of the parties' minor children. It also awarded her the family home, $694 in monthly child support, and $1,200 in monthly spousal support.

The dissolution court based the spousal support award on the parties' incomes and earning capacities. In the dissolution judgment, the court explained the basis for the support as follows:

“This is a long term marriage. The wife has remained outside the traditional work force throughout the marriage to maintain

[246 P.3d 502]

the family home and to raise the parties' children. She has suffered extreme professional detriment, has few marketable skills, and requires spousal support. As a result, [spousal support ²] shall be indefinite.”

[240 Or.App. 394] The dissolution judgment resulted in a monthly household income of $1,410 for husband ($3,304 in earned income minus $694 in child support and $1,200 in spousal support) and $2,933 for wife ($1,039 in potential income plus $694 in child support and $1,200 in spousal support).

In June 2007, wife remarried. In September 2007, husband filed a motion to terminate or reduce his spousal support obligation on the ground that wife's economic circumstances had improved to the point she no longer needed the support. Wife's individual income had not increased in the nine years since the dissolution—she had remained a homemaker and had no individual income other than the $694 in child support and $1,200 in spousal support—but her new husband, Park, had a monthly income of $3,574. Wife had sold the family home and she lived with Park, who paid all of her housing expenses. Husband argued that Park's $3,574 income offset wife's need for the $1,200 in spousal support. Husband also argued that wife's economic circumstances had improved because the parties' children had grown and all but the youngest had left home.

Like wife, husband had remarried and his economic circumstances had improved. His monthly earned income had increased from $3,304 to $7,500. Relying on Moser and Gilmore, 184 Or.App. 377, 56 P.3d 417 (2002), husband argued that the increase in his income was irrelevant to whether his spousal support obligation should be terminated or reduced.

Husband argued that modification of his spousal support obligation was governed by ORS 107.135(2)(a) (1997), which was in effect at the time of the dissolution, and which provided:

“A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support.”

According to husband, wife's remarriage and resulting improved economic circumstances constituted a “substantial change” justifying termination of his spousal support obligation because the purpose of the support had been to [240 Or.App. 395] ensure that wife was able to maintain a certain standard of living and that, after her remarriage, wife was able to maintain that standard without the support.

Wife did not dispute that her economic circumstances had improved, but she did dispute that the improvement justified a modification of husband's spousal support obligation. Wife relied on the current version of the modification statute, ORS 107.135(3)(a), as amended and renumbered since the parties' dissolution, which provides:

“A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse.”

(Emphasis added.) The italicized language was added in 1999 as part of a revision of the spousal support statutes that also created three categories of spousal support: transitional, compensatory, and maintenance. Or. Laws 1999, ch. 587, §§ 1–3, codified at ORS 107.105, ORS 107.135. Wife acknowledged that, at the time of the dissolution of the parties' marriage, dissolution courts were not required to categorize support as transitional, compensatory, or maintenance and, therefore, “back in '97 and '98, she couldn't have been asking for one or the other because we didn't make that distinction yet.” But, wife argued that, under the current modification statute, ORS 107.135(3)(a), the trial court had

[246 P.3d 503]

to determine whether the spousal support was compensatory support. She further argued that the trial court could not terminate the support if it was compensatory support, but the court could terminate the support if it was maintenance support:

“Either the judgment awarded [wife] compensatory spousal support, in which case [husband] is not now entitled to termination, modification because according to the statute he cannot * * * come in here and show you that he's suffered some extreme unforeseeable economic catastrophe, or that judgment awarded [wife] maintenance spousal support.

[240 Or.App. 396] “If the court determines that she was awarded maintenance spousal support, then according to the Moser case analysis, indeed it's undisputed that [husband] would be entitled to terminate that maintenance spousal support based upon the numbers upon which we agree, to the extent that the award was for maintenance spousal support.”

Husband countered that the statutory language on which wife relied was inapplicable because it was enacted after entry of the parties' dissolution judgment. He argued that the trial court should not attempt to categorize the support using categories that had not been defined at the time the support was awarded.

The trial court accepted wife's argument that ORS 107.135(3)(a) applied, and the court concluded that the support was compensatory support, which could not be modified absent a qualifying reduction in husband's income. But the court found that, because husband had to pay for medical and dental insurance for one of the parties' adult children, “extraordinary circumstances” justified reducing the spousal support from $1,200 to $900.

On appeal, the parties renew the arguments they made in the trial court. Thus, as an initial matter, we must determine which version of the modification statute applies. We conclude that the version in effect at the time of the dissolution, ORS 107.135(2)(a) (1997), applies. As noted, the language on which wife relies was added to the statute in 1999, the year after the dissolution of the parties' marriage. Or. Laws 1999, ch. 587, §§ 1–3. The law that amended the statute specifically provided that the amendments “apply only to petitions for annulment, dissolution...