Marriage of Richardson, Matter of
| Decision Date | 14 February 1989 |
| Parties | In the Matter of the MARRIAGE OF William L. RICHARDSON, Respondent- Cross Appellant, v. Verlena R. Richardson, Appellant-Cross Respondent. TC D86-1712; SC S34988. |
| Court | Oregon Supreme Court |
On appeal from Washington County Circuit Court. *
Elizabeth Welch, Portland, filed the brief and argued the cause on behalf of the appellant-cross respondent.
Garr M. King, Portland, argued the cause on behalf of the respondent-cross appellant.
Before PETERSON, C.J., and LINDE, CARSON and JONES, JJ., and HOWELL, J. Pro Tem.
Pursuant to ORS 19.210, the Court of Appeals certified to this court this appeal in a suit for dissolution of marriage. No children were born of the marriage. The only issues before this court concern the property division made by the trial court and the awards of spousal support and attorney fees. Both parties appeal.
When the parties married on July 2, 1961, husband had just completed his first year of law school. Both parties worked while he attended law school. Wife had previously received a bachelor's degree in sociology. After his graduation they moved to Oregon where husband worked in various areas of public and private practice and as a municipal and district court judge and, since 1976, as a Court of Appeals judge. After their marriage and while the parties lived in Salem, wife worked for a secretarial service and then enrolled in a graduate school in social work.
In 1964 wife developed emotional problems and was hospitalized for five weeks in the Oregon State Hospital. The parties moved to Portland and wife worked as a social worker. In 1968 wife was hospitalized again for emotional problems. In 1970 she resigned her position as a social worker and managed an apartment house. She returned to social work in 1972 and was hospitalized again for three months in 1976. She engaged in part-time teaching from then until 1980. Wife was hospitalized again for three weeks in 1980.
In 1980 the parties separated but did not seek dissolution of their marriage, fearing that a dissolution would cause wife to lose the benefits of husband's medical health insurance. Wife enrolled in Portland State University and received a bachelor's degree in English in 1982. She then moved to Montana, enrolled in college and received a master's degree in Fine Arts in 1984. She returned to Portland, did private tutoring, and taught in the public schools.
After separating in 1980, the parties agreed to a support arrangement. Husband initially paid $600 per month to wife, which later increased to $800 and finally to $850 per month in 1984. These payments largely financed wife's education at Portland State University and the University of Montana. Husband also paid her unreimbursed medical expenses, car insurance, gasoline expenses, and for the occasional use of a Visa Card.
While they were separated, but before this dissolution proceeding began, the parties individually acquired a number of assets. Husband acquired a deferred compensation plan and a 1970 truck, valued respectively at $10,797 and $750. During this period wife acquired a 1984 Honda automobile valued at $2,700 and a condominium worth $39,500. 1
Before the parties separated in 1980, husband had paid $30,035 into a Public Employe's Retirement System (PERS) account. 2 However, his rights in the plan Husband filed suit for dissolution of marriage in May 1986 and a decree of dissolution was entered on January 22, 1988. In dividing the marital assets, the trial court distinguished between property acquired by the parties before and after separation, the latter of which was awarded entirely to the spouse responsible for its acquisition. The trial court awarded the entire PERS account to husband, apparently on the theory that, although the account was a "marital asset," the statutory presumption of equal spousal contribution (found in ORS 107.105(1)(f)) had been rebutted because husband's rights in the pension did not vest until after the parties had permanently separated. The court divided the individually acquired assets (i.e., those acquired after separation) as follows:
had not yet "vested," meaning that if husband had left his employment at the date of separation he would not have been entitled to any retirement benefits. Husband's rights in the plan vested in 1984, after the parties separated.
[307 Or. 374]
Property Husband Wife
Condominium $39,500
1984 Honda 2,700
PERS account $104,008
Deferred
Compensation Plan 10,797
1970 truck 750
------------------ -------- -------
TOTAL $115,555 $42,200
Because husband had been awarded the greater part of the individually acquired assets, the court applied Pierson and Pierson, 294 Or. 117, 653 P.2d 1258 (1982), and awarded wife the greater share of the jointly acquired marital assets as follows:
Property Husband Wife
Balsam
Drive residence $45,100
Blossom Drive
rental residence 12,570 $ 10,000
5 acres at Kaiser Rd. 20,000
Lots at Manzanita 50,000
Real estate
contract receivable 7,000
379 shares psychiatric
center stock 17,529
2 Alpha Romeos 3,300
Cash surrender value
life insurance policy 1,667
---------------------- ------- --------
TOTAL $60,970 $106,196
Including both the individually acquired assets and the jointly acquired assets, this property division awarded husband $176,525 and it left wife with $148,396.
The trial court concluded that wife's emotional problems prevented full-time employment but that she would be able to continue teaching part-time. The court awarded wife the sum of $650 per month for two years starting November 1, 1987 and $500 per month as "permanent" spousal support. 3 The court also awarded $2,000 as attorney fees to wife.
On appeal wife contends that she should have been awarded one-half of the value, at the time of trial, of husband's PERS retirement fund 4 and that the permanent spousal support should be raised from $500 per month to $1,500 per month. Husband cross-appeals, contending that the trial court should not have awarded "permanent" spousal support or attorney fees.
At trial there was evidence that wife's 1987 income from part-time teaching averaged The trial court made no factual findings concerning wife's monthly expenses. In her Uniform Support Application she listed total monthly living expenses of $2,563 per month. That sum seems inconsistent with her testimony at trial. She testified that she paid $145 per month on her car loan, $115 on medicine, $33 on car insurance, $12 on home insurance and $200 per month on doctor fees for a total of approximately $500. She also testified that she needed $400 per month "to live." Assuming that this sum should be added to the $500 above, her total expenses appear to be approximately $900 per month.
$533 per month. In addition, she also received $100 per month from a boarder living at her home. The trial court made no specific factual findings regarding wife's income, but it awarded her a contract receivable for the sale of real property which paid her $200 per month plus spousal support of $650 per month, totalling $1483 per month until November 1, 1989, and $1,333 thereafter when the spousal support decreases to $500 per month.
In relevant part, ORS 107.105(1) provides that when a court grants a decree of dissolution, it has authority to decree as follows:
Wife contends that the trial court's division of property was not just and proper under the circumstances as is required by ORS 107.105(1)(f). In particular she argues that the trial court improperly awarded husband all of the PERS account, resulting in an unequal division of the marital assets.
As noted above, the trial court concluded that husband's pension was an asset individually acquired by husband because his rights in the plan vested after the parties had separated. The court therefore awarded husband the entire value of the account. We think that this approach was improper.
ORS 107.105(1)(f) provides in part that "[a] retirement plan or pension or an interest therein shall be considered as property." (Emphasis added.) Added to ORS 107.105(1)(f) in 1983, see Or.Laws 1983, ch. 728, § 2, this provision overruled Giovanini and Giovanini, 50 Or.App. 279, 622 P.2d 772 (1981), and sought to make it clear that both vested and unvested pensions were property subject to the court's dispositional power. In Giovanini, the Court of Appeals had ruled that the nonvested portion of a pension was not divisible property. 50 Or.App. at 282, 622 P.2d 772. By adding to ORS 107.105(1)(f) the language that a pension "or an interest therein shall be considered as property," the proponents of the measure thought that "it should be clear that the committee is including both vested and unvested [pensions]." See Minutes, Senate Committee on Judiciary, Testimony of Nancy Campbell, April 20, 1983, p. 7. When it was later suggested that the phrase "or an interest therein" be deleted, a member of the Senate Committee on Judiciary argued that this language should be retained because "the pension may not be vested...
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