Marriage of Pope, Matter of

• Decision Date: 07 June 1985
• Parties: In the Matter of the Marriage of Ronna H. POPE, Appellant-Cross-Respondent, and Guy Brownell Pope, Respondent-Cross-Appellant. D7904-62977; CA A30698.
• Court: Oregon Court of Appeals

Page 518

698 P.2d 518

73 Or.App. 242

In the Matter of the Marriage of Ronna H. POPE,

Appellant-Cross-Respondent,

and

Guy Brownell Pope, Respondent-Cross-Appellant.

D7904-62977; CA A30698.

Court of Appeals of Oregon.

Argued and Submitted Oct. 26, 1984.

Decided April 17, 1985.

Reconsideration Denied June 7, 1985.

Jacob Tanzer, Portland, argued the cause for appellant-cross-respondent. With him on briefs was Ball, Janik & Novack, Portland.

William J. Howe, III, Portland, argued the cause for respondent-cross-appellant. With him on brief was Howe & Harris, Portland.

Before BUTTLER, P.J., JOSEPH, C.J., and WARREN, J.

BUTTLER, Presiding Judge.

Wife appeals an order granting husband's motion to modify the 1980 decree dissolving the parties' 22-year marriage by terminating husband's obligation to make payments according to the parties' property settlement agreement, which was incorporated into the dissolution decree. The parties agreed in paragraph 3.1 of the agreement, denominated support, that husband would pay wife $42,000 per year (plus a 10 percent annual cost of living increase provided for elsewhere in the agreement) from July 1, 1980, through June 30, 1990, unless either party died or wife remarried; if wife remarried before July 1, 1985, the payments were to continue until that date; if she remarried after July 1, 1985, the payments were to terminate on the date of her marriage. The trial court concluded that those payments constituted spousal support rather than part of the negotiated property settlement and that wife's remarriage to a wealthy man in 1982 was a sufficient change in circumstances to warrant their termination.

Husband cross-appeals, assigning as error the trial court's denial of his motion to terminate his obligation to maintain life insurance on his life for the benefit of wife under paragraph 9.1 of the agreement. The trial court concluded that that obligation was not subject to modification, because, unlike the payments required by paragraph 3.1, it constituted part of the property settlement.

The two paragraphs of the agreement and decree with which we are concerned provide:

"3.1 Husband shall pay Wife the sum of $42,000 per year commencing July 1, 1980 and each year thereafter through June 30, 1990, or until as otherwise terminated as provided herein, said sum to be paid in advance in semi-annual equal payments. The payments to be made to Wife pursuant to this paragraph shall terminate only in the event of the death of Husband or Wife, or on July 1, 1985 if Wife remarries prior thereto, or upon the remarriage of Wife after July 1, 1985, whichever shall first occur.

" * * *

"9.1 For a period of ten years following execution of this agreement, or until September 30, 1985 if Wife remarries prior thereto, or upon remarriage of Wife after September 30, 1985, whichever shall first occur, Husband shall, at his sole cost and expense, maintain and provide in full force and effect life insurance naming and providing for payment to Wife upon death of Husband the sum of $500,000. Husband shall deliver to Wife a copy of the insurance policy maintained by Husband pursuant to the provisions of this paragraph and provide upon request evidence of payment of the premiums therefor. In the event Husband shall fail to pay the premiums or provide such insurance, Wife may, but shall not be obligated to, pay such premiums or obtain such insurance, and Husband shall be liable to Wife for the cost thereof. In the event of termination of the obligation of Husband under this subparagraph, any policy of life insurance in existence pursuant to the provisions hereof shall become the sole property of Wife to be maintained at her expense. Husband agrees to co-operate and do whatever may reasonably be required to maintain any life insurance obtained under this subparagraph or to obtain a lower premium therefor."

We consider first husband's cross-appeal. Emphasizing the undisputed interrelationship between the two paragraphs, husband contends that, if the trial court was correct in concluding that paragraph 3.1 provided for support and was modifiable, it must have erred in concluding that paragraph 9.1 was part of the property settlement and, thus, not subject to modification. It is clear that paragraph 9.1 was intended to be, at least in part, a mechanism to protect wife if husband died before his obligations under paragraph 3.1 terminated. To that extent husband's argument is persuasive.

However, paragraph 9.1 contains essential attributes of a property settlement. First, the benefit provided ($500,000) is substantially greater than the sum of the payments potentially payable under paragraph 3.1 ($382,543). Second, paragraph 9.1 does not provide for a reduction of the original life insurance benefit as the 10 year term progresses. Finally, and most significantly, that paragraph provides:

"In the event of termination of the obligation of Husband under this subparagraph, any policy of life insurance in existence pursuant to the provisions hereof shall become the sole property of Wife to be maintained at her expense."

Accordingly, we agree with the trial court in finding that paragraph 9.1 is a part of the property settlement and is not subject to modification.

In her appeal, wife advances three lines of argument: (1) the payments provided for in paragraph 3.1 represent a part of the property settlement and not spousal support; (2) even if the payments do represent spousal support, public policy dictates that the terms of an integrated property settlement agreement, negotiated at arms length with the aid of competent counsel, which are deemed fair when accepted and incorporated in the decree, are not subject to modification; and (3) even if the payments do represent spousal support, wife's remarriage, which was an occurrence that was anticipated and was specifically provided for in the payment terms, cannot form the basis for modifying the obligation.

Because we agree with wife's third argument, we address it first. Although courts have the authority to set aside, alter or modify any obligation deemed to be support when there has been a substantial change of circumstances, ORS 107.135(1)(a) and (2), a circumstance that was within the contemplation of the parties at the time of the original decree is not by itself sufficient to justify modification. See, e.g., Harden and Harden, 67 Or.App. 687, 690, 679 P.2d 348 (1984); Hellweg v. Hellweg, 30 Or.App. 995, 997, 568 P.2d 710 (1977); Pratt and Pratt, 29 Or.App. 115, 118, 562 P.2d 984 (1977). As a general rule, the remarriage of the dependent spouse does not ipso facto terminate the obligation to pay support provided by the decree, Grove and Grove, 280 Or. 341, 571 P.2d 477 (1977), ¹ and a general provision in the decree that support will not terminate if the dependent spouse remarries does not necessarily preclude modification if that spouse remarries. Furthermore, if there is no agreement, and the decree is silent, remarriage of the dependent spouse may be a...