In the Matter of The Marriage of Derek Abrams

• Decision Date: 25 May 2011
• Docket Number: 081427; A142232.
• Citation: 259 P.3d 92,243 Or.App. 203
• Parties: In the Matter of the Marriage of Derek ABRAMS, aka Steven D. Abrams, Petitioner–Respondent,andLisa Lee ABRAMS, Respondent–Appellant.
• Court: Oregon Court of Appeals

243 Or.App. 203

259 P.3d 92

In the Matter of the Marriage of Derek ABRAMS, aka Steven D. Abrams, Petitioner–Respondent,andLisa Lee ABRAMS, Respondent–Appellant.

081427; A142232.

Court of Appeals of Oregon.

Argued and Submitted March 15, 2011.Decided May 25, 2011.

Chelsea D. Armstrong argued the cause for appellant. With her on the briefs was Sherman, Sherman, Johnnie & Hoyt, LLP.Lorena Reynolds argued the cause and filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.NAKAMOTO, J.

This case involves the award of spousal support upon the dissolution of the parties' 28–year marriage. Wife appeals from a judgment awarding transitional support to her in the amount of $750 per month for 24 months. Wife contends that she is entitled to a longer duration of transitional support and to indefinite maintenance support. On de novo review, ORS 19.415,¹ we modify the judgment to award maintenance support of $1,800 per month and otherwise affirm.

The parties married in 1980 when they were 19 years old. During the last seven years of the marriage, they separated “in house” several times, and in 2005, wife moved to Nevada. At the time of trial, both parties were age 48 and in good health. The parties have one adult child who is independent.

This appeal relates only to the trial court's award of spousal support.

Husband was the primary wage earner during the marriage and has consistently had stable full-time employment. At the time of dissolution, he worked for Oregon State University as an information technologist, and the trial court found that his income was approximately $7,600 per month. His monthly expenses as shown on his uniform support affidavit were approximately $6,175. Husband testified that he is also attempting to develop a musical entertainment business, but that it is not yet profitable. Should the business not become profitable in the next year, husband's intention is to abandon it. Should the business become profitable, his intention is to sell it.

At the time of the marriage, the parties agreed that they would live off of husband's income and that they would not go into debt. Wife was a homemaker throughout the marriage and had primary responsibility for childcare. She also managed the parties' finances and frugal lifestyle and earned a small amount of income from a variety of part-time jobs, including house cleaning, working in retail and in restaurants, and driving for the United States Postal Service. In 2004, wife obtained a hair stylist license. She volunteered at a salon before the parties separated, because she did not need the income and wanted to improve her skills.

In 2005, the parties separated, and wife moved in with family in Nevada. During the first year of separation, she did not work. She had access to the parties' joint accounts and used her debit card to withdraw small amounts of cash each month and to pay for living expenses. Husband also gave her $400 to $500 when she requested it; but, wife was frugal and did not have many expenses. Husband continued to pay for wife's health and auto insurance.

After the first year of separation, wife began to work cutting hair. Most recently, during the seven months preceding trial, wife was employed at a salon in Nevada at minimum wage and earned approximately $990 per month. Wife testified that the economy has had a negative impact on her employment as a stylist and on her ability to find other work. She testified that she has not found full-time employment in a hair salon, but that, if the economy improves, she hopes to have income of $2,000 per month. The trial court imputed to wife a potential minimum wage income of $1,455. Wife's uniform support affidavit lists monthly expenses of approximately $3,380.

Both of the parties enjoyed some success playing poker professionally. At one time, wife aspired to become a professional poker player, but that did not develop. Husband used the parties' poker earnings to start his entertainment business.

At trial, wife sought 48 months of transitional support of $750 and indefinite maintenance support of $2,000. The trial court awarded wife 24 months of transitional support of $750 per month, but no maintenance support. In its letter opinion, the trial court explained that no maintenance support was warranted because “[w]ife is young enough and healthy enough to improve her earning ability and seek employment within two years that would sustain her.”

Wife is satisfied with the amount of transitional support, but she contends on appeal that the duration of transitional support is insufficient to allow her to attain full-time employment in light of current economic conditions. She contends, further, that in light of the length of the marriage and the disparity in the parties' earning capacities, she is entitled to an award of maintenance support in the amount of $2,000 per month.

In support of the trial court's award, husband argues that, considering wife's already-marketable skills as a hair stylist, two years is sufficient to allow her to attain a level of self-sufficiency. See ORS 107.105(1)(d)(A); Harris and Harris, 349 Or. 393, 416, 244 P.3d 801 (2010) (transitional support is appropriate in an amount and duration “needed for a spouse to obtain the training and education necessary for reentry into the job market”). Husband contends, further, that the trial court appropriately determined that an award of maintenance support, see ORS 107.105(1)(d)(C), is unnecessary, because the parties lived frugally during the marriage, and wife's eventual earnings as a hair stylist will be sufficient to support the lifestyle that she has chosen for herself during the years of separation. We conclude that the trial court's award of transitional support is adequate and affirm that award without further discussion. We write to address the issue of maintenance support and conclude that, without an award of spousal maintenance to wife, the judgment was not just and equitable, and that an award of $1,800 per month in indefinite support is appropriate.

The court is authorized by ORS 107.105(1)(d) to award spousal support in an amount and for a duration that is “just and equitable.” Maintenance support, the type of support at issue in this case, allows one financially able spouse to contribute to the support of the other, depending on the financial needs and resources of each party. Harris, 349 Or. at 416, 244 P.3d 801. In a long-term marriage such as this, the primary goal of spousal support is to provide a standard of living to both spouses that is roughly comparable to the one enjoyed during the marriage, Mallorie and Mallorie, 200 Or.App. 204, 219–20, 113 P.3d 924 (2005), rev. den., 340 Or. 18, 128 P.3d 1122 (2006), while at the same time keeping in mind the objective of ending the support/dependency relationship within a reasonable time, if that is possible without injustice or undue hardship, Taylor and Taylor, 136 Or.App. 416, 419, 902 P.2d 120 (1995).

A spousal support award should be based on circumstances existing at the time of dissolution, but must also take into account the lifestyle enjoyed by the parties during the marriage. Cullen and Cullen, 223 Or.App. 183, 190, 194 P.3d 866 (2008). In addition, spousal support should not be set at an amount that is higher than the obligor can reasonably afford to pay at the time of dissolution. Id.

An award of spousal support is not precluded when one party has received a lump sum award, such as wife's equalizing judgment in this case, Bounds and Bounds, 185 Or.App. 619, 624, 60 P.3d 1090 (2003), as long as it is otherwise just and equitable to award support to enable the dependent spouse to maintain a standard of living comparable to that enjoyed during the marriage. In determining the amount and duration of support, the court must consider the factors outlined in the statute, ORS 107.105(1)(d)(C), as well as the other financial provisions of the judgment; none can be considered in isolation. Grove and Grove, 280 Or. 341, 344, 571 P.2d 477, modified on other grounds, 280 Or. 769, 572 P.2d 1320 (1977).

The statutory provision relating to maintenance support, ORS 107.105(1)(d)(C), provides that the court may award

“[s]pousal maintenance as a contribution by one spouse to the support of the other for either a specified or an indefinite period. The factors to be considered by the court in awarding spousal maintenance include but are not limited to:

“(i) The duration of the marriage;

“(ii) The age of the parties;

“(iii) The health of the parties, including their physical, mental and emotional condition;

“(iv) The standard of living established during the marriage;

“(v) The relative income and earning capacity of the parties, recognizing that the wage earner's continuing income may be a basis for support distinct from the income that the supported spouse may receive from the distribution of marital property;

“(vi) A party's training and employment skills;

“(vii) A party's work experience;

“(viii) The financial needs and resources of each party;

“(ix) The tax consequences to each party;

“(x) A party's custodial and child support responsibilities; and

“(xi) Any other factors the court deems just and equitable.”

We consider each of the relevant factors:

The duration of the marriage. This is a marriage of over 28 years and, even with the periods of separation, it is considered to be long-term, thus weighing in favor of a support award that places the parties in relative parity regarding their standard of living, Sather and Sather, 238 Or.App. 235, 238, 243 P.3d 76 (2010), and—to the extent possible—allows the parties to maintain the standard of living enjoyed during the marriage. McLauchlan and McLauchlan, 227 Or.App. 476, 206 P.3d 622, rev. den., 346 Or. 363, 213 P.3d 577 (2009); Boyd and Boyd, 226 Or.App. 292, 301, 203 P.3d 312 (2009); Weakley and Weakley, 177 Or.App. 363, 371, 33 P.3d 1045 (2001).

The age...