Kirkendall and Kirkendall
Decision Date | 28 March 2007 |
Docket Number | A127290.,03P-2418. |
Citation | 156 P.3d 84 |
Parties | In the Matter of the MARRIAGE of R. Todd KIRKENDALL, Respondent, and Lisa Ann Kirkendall, Appellant. |
Court | Oregon Court of Appeals |
Kevin T. Lafky, Salem, argued the cause for appellant. With him on the briefs were Mindy Stannard and Lafky & Lafky.
Dennis V. Messoline, Salem, argued the cause and filed the brief for respondent.
Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.
Wife appeals from a judgment of dissolution of marriage, assigning error to the trial court's distribution of real and personal property. We review de novo but give deference to the trial court's implied credibility findings. ORS 19.415(3); Lind and Lind, 207 Or.App. 56, 58, 139 P.3d 1032 (2006). We affirm.
Husband and wife married on September 29, 2000. As the trial court observed, "during the period of the marital relationship there was cohabitation and extensive commingling of assets and activities between" husband and wife and wife's mother and stepfather, the Laubes. At the time of the marriage, both parties were living with and paying rent to the Laubes. Soon thereafter the parties purchased and moved to the marital residence (the Lakeview home). A short time later, the Laubes purchased and moved to the Summit Avenue property, which was closer to the Lakeview home than their previous home was. The Summit Avenue property was purchased in the names of wife and her mother, with a right of survivorship. Wife testified that the Summit Avenue property was placed in both their names so that wife would be able to care for her stepfather if anything should happen to her mother. Husband, however, testified that the property was placed in both names so that wife would own the property when her mother died. Husband further testified that he contributed significant, uncompensated time and labor to remodeling the Summit Avenue property; wife and her mother minimized the amount of work that husband did, and wife's mother testified that he had been paid for at least some of that work.
Husband and wife later acquired the Glen Creek property, a lot adjacent to the Lakeview home. Wife's mother used the Summit Avenue property as security to obtain a $59,000 line of credit, of which approximately $49,000 was used to finance the Glen Creek purchase and $10,000 was used to pay off a vehicle owned by wife. The parties dispute whether husband and wife were expected to pay off the entire $59,000 line of credit, although they did make the monthly payments on that debt. According to husband, at least, he and wife had planned to remodel the Lakeview home so that
the Laubes could live with them while a new house was being built on the Glen Creek lot. The Summit Avenue property then would be sold to finance the construction costs of the new house, and both families would live together permanently in the new residence, with the Laubes residing in the basement.1 According to husband, he and wife would have owned the new residence and "were going to sign a contract with [wife's mother] so that she could never be removed" from the house. By the time of trial, however, the parties were trying to sell the Glen Creek lot.
At trial, wife contended that her mother is the sole owner of the Summit Avenue property, which therefore is not a marital asset. Additionally, she requested that the proceeds from the sale of the Glen Creek lot first be used to pay the line of credit that her mother had obtained to finance its purchase and that the remainder of the proceeds be divided equally between the parties. Husband asserted, however, that the inclusion of wife's name on the deed for the Summit Avenue property and the intent to use proceeds from its sale to finance construction of a new marital home made the property a marital asset. He contended that wife's one-half interest in that property should be factored into the equalizing of the assets. Husband believed that the proceeds from the sale of the Glen Creek lot should be divided equally, disregarding the line of credit secured by the Summit Avenue property.
The trial court concluded that a one-half interest in the Summit Avenue property is a marital asset, because wife is a record owner with a right of survivorship and because of the parties' plans to cohabitate with the Laubes. The court awarded wife the interest in the Summit Avenue property, adjusting its value to reflect half of the line-of-credit encumbrance. The court concluded that, given that adjustment, the proceeds from the sale of the Glen Creek lot should be divided equally without considering the line of credit any further.
On appeal, wife contends that the trial court erred (1) by finding the Summit Avenue property to be a marital
asset or, alternatively, if it is a marital asset, by not finding that she had overcome the presumption of equal contribution, and (2) by ordering that proceeds from the sale of the Glen Creek property be split evenly without first paying back the loan obtained by wife's mother. For the reasons set forth below, we affirm.
We first consider the trial court's decision to treat the one-half interest in the Summit Avenue property as a marital asset. It is undisputed that wife acquired title to an interest in the property during the marriage. The deed is presumptive proof of ownership. See Hilterbrand v. Carter, 175 Or.App. 335, 340, 27 P.3d 1086 (2001) . At trial, the parties offered conflicting testimony about their intentions regarding the Summit Avenue property, and the trial court's findings are more consistent with husband's description of events. Taking into account the...
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§6.6 Debts
...property, a court may divide the debts that the parties incur[red] during the marriage." In re Marriage of Kirkendall, 211 Or App 566, 571, 156 P3d 84 (2007). See also In re Marriage of Shlitter, 188 Or App 277, 283, 71 P3d 154 (2003). The allocation of marital debts between the parties is ......
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§9.5 Third-Party Property Interests In Family Law Litigation
...only so that she could care for her stepfather if anything were to happen to her mother (In re Marriage of Kirkendall, 211 Or App 566, 568, 156 P3d 84 (2007)). The list does go on, and the Oregon Rules of Civil Procedure contemplate the joining of third parties in all types of civil litigat......