Marriage of Massee, In re

• Jurisdiction: Oregon
• Parties: In the Matter of the MARRIAGE OF David MASSEE, Respondent on Review, and Constance Genevieve Massee, Petitioner on Review. 93; CA A84859, SC S43076.
• Citation: 328 Or. 195,970 P.2d 1203
• Docket Number: C-31338,Nos. CC,s. CC
• Court: Oregon Supreme Court
• Decision Date: 22 January 1999

Page 1203

970 P.2d 1203

328 Or. 195

In the Matter of the MARRIAGE OF David MASSEE, Respondent on Review and Constance Genevieve Massee, Petitioner on Review.

Nos. CC 93C-31338; CA A84859, SC S43076.

Supreme Court of Oregon.

Argued and Submitted March 7, 1997.

Decided Jan. 22, 1999.

J. Michael Alexander, of Burt, Swanson, Lathen, Alexander, McCann & Smith, Salem, argued the cause and filed the briefs on behalf of petitioner on review.

John Hemann, of Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P.C., Salem, argued the cause and filed the briefs on behalf of respondent on review.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM and KULONGOSKI, Justices. ^**

KULONGOSKI, J.

We address two questions in this marital dissolution action. The first question is whether the appreciation, during the marriage, of assets brought to the marriage by husband and held separately by him is a marital asset under ORS 107.105(1)(f) (set forth below). The trial court divided the marital property without deciding this question. We conclude, as did a divided Court of Appeals sitting en banc, that such appreciation is a marital asset.

The second question is whether wife is entitled to share in that marital asset. The trial court concluded that wife was not entitled to share in the appreciation of husband's separately held assets and awarded husband all the interest in those assets, including any appreciation in the value of those assets that occurred during the marriage. On appeal, the Court of Appeals concluded that husband successfully rebutted the presumption in ORS 107.105(1)(f) that both spouses contributed equally to the acquisition of marital assets and affirmed the trial court's division of the marital property. Massee and Massee 138 Or.App. 589, 599, 601, 911 P.2d 320 (1996) (en banc). As we explain post, we affirm in part and reverse in part the decision of the Court of Appeals, reverse the judgment of the circuit court, and remand the case to the circuit court for further proceedings.

The Court of Appeals reviewed this case de novo. Pursuant to ORS 19.125(4), this court also may review de novo, or it may limit its review to questions of law. The facts relevant to the resolution of the issues before us are not in dispute, although their legal significance is. Accordingly, there is no reason to review de novo. Denton and Denton, 326 Or. 236, 238, 951 P.2d 693 (1998). We take the following undisputed facts from the opinion of the Court of Appeals and from the record.

The parties were married in February 1991, and husband filed for dissolution of the marriage in February 1993. Husband has been a farmer for most of his adult life. At the time of the marriage, he owned substantial farming, business, and real estate holdings. Those holdings included the Mission Nut Company, the Mission Cherry Company, a farm, a residence, a large tract of land known as the "bayou property," and commercial buildings in Salem and Wilsonville. The Wilsonville building contained a retail hardware business and related equipment that husband owned.

Wife brought into the marriage a car and some personal items. Before the marriage, wife worked as a clerk at a local bank and had completed a variety of classes at Chemeketa Community College. Her principal source of income before the marriage was the sale of stocks given to her by her mother. At the time of the marriage, wife was employed part-time as a manicurist. Wife also brought into the marriage a small amount of personal debt, less than $5,000. Husband paid that debt during the marriage.

During the first year of the marriage, wife worked infrequently as a manicurist. She also worked, without pay, for no more than four months as manager of husband's hardware store. Wife worked between 45 and 70 hours during one hazelnut harvest and was paid by husband for that work. She worked for husband between 10 hours and 50 hours during one cherry harvest. Husband did not pay her for that work. On occasion, wife also provided refreshments to farmers while they waited to unload crops at husband's cherry and hazelnut businesses.

Early in the marriage, wife expressed a desire to attend school and acquire additional vocational training. Husband requested that wife stay home and manage the household, and he assured her that he would take care of her in the future and that she need not work outside the home. Wife acquiesced in that matter.

The parties separated briefly in August 1991, approximately six months after their marriage. The parties separated again in late 1991. In November 1991, wife stopped working at the hardware store. She took approximately $5,000 from the hardware store business account. Contemplating filing for dissolution of the marriage, she spent about $1,500 of that money on legal fees and about $300 on food and incidentals. She later returned the remainder to husband's accounts.

Husband did not place wife's name on any of his properties. Wife did not contribute any of her separate money to the upkeep or improvement of the businesses, equipment, or properties that husband brought into the marriage. Throughout the marriage, husband kept all his bank accounts separate from wife's, with two exceptions. Wife was on the hardware store business account during her tenure as manager of that business. The parties also maintained a joint checking account for household expenses. Husband typically deposited $550 each month into that joint checking account, which wife then used for groceries, clothing, and incidental expenses. Husband paid the home mortgage and all improvements, repairs, and utilities from his separate accounts.

Throughout the marriage, except for the periods when the parties were separated wife worked as a homemaker, in addition to the occasional paid and unpaid employment in husband's businesses noted above. She did the shopping, cooking, errands, and laundry, and she generally managed the marital household. Wife also spent approximately 1,000 hours improving the exterior appearance of the family residence, including spraying for weeds, power-washing the house and carport, and maintaining and improving landscaping.

The parties' final separation occurred in early 1993, and husband filed for dissolution of the marriage in February 1993. The trial court concluded that the parties had not commingled their financial affairs, that the parties easily could be restored to their premarital financial positions, and that the property division should be in the nature of a "rescission," "notwithstanding whatever appreciation occurred in the assets." Massee, 138 Or.App. at 592, 911 P.2d 320. Accordingly, the trial court did not determine husband's exact net worth either at the time of marriage or at the time of dissolution. The trial court awarded husband all the assets that he brought into the marriage, including any appreciation of those assets that occurred during the marriage. Id. The trial court awarded wife the property she brought into the marriage and six months of spousal support at $1,750 per month, as well as most of the personal property acquired jointly during the marriage, with an approximate total value of $17,250. Id.

Wife appealed, assigning error to the trial court's division of property. She argued that the trial court should have awarded her a share of the appreciation, during the marriage, of the assets that husband brought into and held separately during the marriage, because such appreciation is a marital asset. Id. at 592-93, 911 P.2d 320. Wife also argued that the trial court's application of the rescission doctrine, without regard to ORS 107.105(1)(f), failed to recognize her efforts as a homemaker and ignored the statutory presumption of equal contribution to the acquisition of marital assets. Id. at 593, 911 P.2d 320. The Court of Appeals concluded that the appreciation, during the marriage, of husband's separately held assets is a marital asset, and that the statutory rebuttable presumption of equal contribution, ORS 107.105(1)(f), applied to the acquisition of that appreciation. Id. at 594-96, 911 P.2d 320. The court then affirmed the trial court's property division after concluding that wife did not contribute, either directly or indirectly, to the appreciation of husband's separately held assets, and that husband thus had overcome the statutory rebuttable presumption of equal contribution. Id. at 599-600, 911 P.2d 320. We allowed wife's petition for review.

We begin our analysis with the pertinent statutory wording. ORS 107.105(1)(f) governs the division of marital property in a marital dissolution action. That paragraph is long, complicated, and somewhat cumbersome. The first, third, and fourth sentences of paragraph (1)(f) are relevant to this case. We quote those sentences as they appear in the statute:

"(1) Whenever the court grants a decree of marital annulment, dissolution or separation, it has power further to decree as follows:

" * * * * *

"(f) For the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances. * * * The court shall consider the contribution of a spouse as a homemaker as a contribution to the acquisition of marital assets. There is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held." ¹

In interpreting the wording of a statute, this court's task is to discern the intent of the legislature. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). We discern that intent by examining, first, the text and context of the statute. Id. at 610-11, 859 P.2d 1143. The context includes "other provisions of the same statute and other related statutes," id. at 611, 859 P.2d 1143, as well as relevant judicial construction of those statutes. See ...