In the Matter of The Marriage of Janet May Luty

• Citation: 245 Or.App. 393,263 P.3d 1067
• Decision Date: 08 September 2011
• Docket Number: 950666403; A141437.
• Court: Court of Appeals of Oregon
• Parties: In the Matter of the Marriage of Janet May LUTY, Petitioner–Respondent,andJeffrey Alexander Luty, Respondent–Appellant.

245 Or.App. 393

263 P.3d 1067

In the Matter of the Marriage of Janet May LUTY, Petitioner–Respondent,andJeffrey Alexander Luty, Respondent–Appellant.

950666403; A141437.

Court of Appeals of Oregon.

Argued and Submitted Sept. 27, 2010.Decided Sept. 8, 2011.

Robert Demary, Portland, argued the cause and filed the brief for appellant.Paul G. Dodds, Portland, argued the cause for respondent. With him on the brief were James W. Hendry and Brownstein, Rask, Sweeney, Kerr, Grim, DeSylvia & Hay, LLP.Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.ARMSTRONG, J.

Husband appeals a supplemental judgment denying his motion to terminate or, in the alternative, to reduce his spousal support obligation to wife; finding husband in contempt for willfully failing to pay wife various obligations imposed by the parties' stipulated dissolution judgment; and awarding wife her attorney fees in the contempt proceeding. Of the three assignments of error raised by husband, we reject without discussion his challenge to the contempt determination and the related award of attorney fees and write to address husband's contention that the court erred in concluding that the decrease in his income after the indefinite suspension of his license to practice medicine was not a significant change in economic circumstances justifying the termination or reduction of his spousal support obligation. We agree with husband on that assignment and, accordingly, reverse and remand.

We review the facts de novo. ORS 19.415(3) (2007).¹ Husband and wife were married for 15 years. About eight years into the marriage and one year after the birth of the last of the parties' three children, husband entered medical school. While husband was pursuing his medical degree, he had, at times, a part-time job, but wife, working full time and receiving assistance from her parents, covered the majority of the family's financial needs and assumed most of the household and childcare responsibilities. After husband graduated from medical school, he began his residency, and, because husband's income had increased, wife began working part time and spent more time taking care of the parties' children.

Shortly thereafter, the parties sought to dissolve their marriage. The court entered a stipulated judgment of dissolution in 1996, imposing on husband, among other things, a spousal support obligation that was consistent with the obligation to which the parties had agreed in a marital settlement agreement. Husband's spousal support obligation was structured in such a way that it would increase over time in anticipation of the increased income husband would earn after completing his residency; his income was $8,333 per month at the time of the dissolution. Specifically, husband was required to pay spousal support of $333 per month from October 1995 to June 1996; $2,000 per month from July 1996 to December 1999; and $2,500 per month from January 2000 to December 2012.

In addition to his spousal support obligation, husband was required to pay $1,000 per month for child support. However, in 1998, wife sought to increase husband's child support obligation because his income had substantially increased since the entry of the dissolution judgment, which resulted in a stipulated modification to the judgment increasing child support. In 2002, husband moved the court for a decrease in his child support obligation, and the court entered another stipulated modification to the dissolution judgment that reduced child support. The 2002 stipulated modification provided, as pertinent to this case:

“2. CHILD SUPPORT.

“ * * * * *

“G. Future Modification of Support. * * * In order to avoid further litigation between them, the parties do not intend to further modify child support, and increases or decreases to each party's income shall not constitute a substantial change of financial circumstances. The parties agree that the court shall have jurisdiction to review and modify the payment of child support and spousal support in the event either party files for a future modification of child or spousal support.”

(Capitalization and underscoring in original; emphasis added.)

From 2002 to 2006, husband was employed as a physician, earned between $200,000 and $256,000 a year, and met all of his support obligations. However, husband's cocaine use, which began when he first met wife, increased after the parties' separation and escalated in 2005 from “recreational use” to a serious problem affecting his work performance. In 2006, husband gave his employer, Providence Health Systems (Providence), notice that he was resigning, and, despite his attempts to withdraw his notice, his employment was terminated. In June 2007, husband stopped making payments to wife on his spousal and child support obligations.

After pursuing treatment for his addiction and borrowing large sums of money from his family and friends, husband began working for Providence again in February 2008. Two and one-half months later, husband, who had been in treatment for nine months for his cocaine addiction, had a “slip” from his recovery and used cocaine due, according to husband, to work-related anxiety. After that slip, husband revealed his substance abuse disorder to the Health Professionals' Services Program, which subsequently informed the Oregon Medical Board of the issue. As a result, husband lost his job at Providence, and his license to practice medicine was effectively suspended pending completion of an investigation into husband's fitness to continue practicing medicine. Despite some efforts to find a better-paying job after the suspension, husband began working for minimum wage through a staffing service.

Based on the substantial decrease in his income and his resulting inability to pay his spousal support obligation, husband filed a March 2008 motion seeking to terminate or reduce spousal support. Husband contended that his decrease in income was a substantial change in his economic circumstances justifying such a modification and that the court had to apply the 1997 version of ORS 107.105 when considering that contention. In response, wife denied that there had been a substantial change in economic circumstances sufficient to modify spousal support and, in May 2008, filed a motion seeking to have the court hold husband in contempt for, among other things, failing to pay her $28,750 in spousal support arrearages that had accumulated as of her filing.

After the hearing on the motions, the court issued a letter opinion, concluding that

“[t]he bottom line is that [husband] is a recovering substance abuser who has lost, at least temporarily, his license to practice medicine as an Oregon physician and therefore cannot earn as much money as he could in the past. How long it will take him to recover to the point where he could regain his license and return to a similar income level is unknown. Given the circumstances which led to his voluntary reporting to the Oregon Board of Medical Examiners and the subsequent suspension of his license, I believe it is within [husband's] power and control to regain his license, subject of course to his ability to conquer his addiction.

“The most significant issue is whether the court may or should consider modifying the spousal support ordered in this case, as the answer to that question could moot other issues. After careful consideration of both sides' arguments, with a deep acknowledgement of the difficulties addicts have in overcoming their disease, I agree with the legal and public policy arguments submitted by [wife]. Therefore, I conclude that I * * * will not modify the spousal support based on [husband's] addiction. This conclusion would be the same regardless of which statute [governing spousal support] applies, so ultimately the parties' contentions in that regard are moot.”

The court also found husband in contempt for, among other things, his failure to pay his various support obligations. Accordingly, the court entered a supplemental judgment declining to modify husband's spousal support obligation, finding husband in contempt, and awarding wife her support arrearages and her attorney fees.

On appeal, husband renews his argument that his substantial and involuntary reduction in income establishes a change in economic circumstances sufficient to justify the termination or reduction of his spousal support obligation. Wife remonstrates that the court correctly denied husband's motion to modify spousal support because (1) the language in the 2002 stipulated modification of the dissolution judgment precludes husband from obtaining a modification of spousal support based on a change in his income and (2) a decrease in husband's ability to pay spousal support resulting from his cocaine addiction does not justify modification of his otherwise appropriate spousal support obligation. For...