MARRIAGE OF WEBER

• Decision Date: 27 May 2004
• Citation: 91 P.3d 706,337 Or. 55
• Parties: In the Matter of the MARRIAGE OF Larry WEBER, Petitioner on Review, and Marilyn Weber, Respondent on Review.
• Court: Oregon Supreme Court

91 P.3d 706

337 Or. 55

In the Matter of the MARRIAGE OF Larry WEBER, Petitioner on Review, and

Marilyn Weber, Respondent on Review.

(CC C95-1232DR; CA A113178; SC S49905).

Supreme Court of Oregon.

Argued and Submitted September 4, 2003.

Decided May 27, 2004.

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

Gary Zimmer, of Zimmer & Bunch, LLC, Portland, argued the cause for respondent on review. With him on the briefs was Cecil Reniche-Smith.

Before, CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.¹

De MUNIZ, J.

The issue in this marriage dissolution case is whether, under ORS 107.135, a post-dissolution increase in a payor spouse's annual income is a substantial change in economic circumstance that permits the reconsideration of a payor spouse's support obligation. Husband, the payor in this case, is a physician. In the months preceding the parties' 1994 marriage dissolution, husband's income had declined significantly due to changes in the medical profession. The parties resolved their divorce by stipulated dissolution judgment. That judgment presumed that husband's reduced income level would continue indefinitely and calculated wife's spousal support based on that amount. Within three years of the parties' marriage dissolution, however, husband's income had returned to the level that husband and wife had enjoyed before husband's income began to decline. In 1999, wife moved to modify the award of spousal support based on husband's increased income, and the trial court granted that motion.

Husband appealed, and the Court of Appeals affirmed. Weber and Weber, 184 Or. App. 190, 56 P.3d 406 (2002). This court allowed husband's petition for review. We limit our review to questions of law, ORS 19.415(4) and, on review, we hold that the post-dissolution increase in husband's income is not a substantial change in economic circumstance under ORS 107.135 that permitted the reconsideration of husband's spousal support obligation. We therefore reverse the decision of the Court of Appeals and the judgment of the trial court.

We state the facts as they were presented in the Court of Appeals' opinion below:

"The parties were married in 1971 while in their junior year of college. At the time of the dissolution in 1995, both parties were 45 years old, and their two sons were 14 and 10, respectively. Wife obtained a master's degree in special education during husband's first two years of medical school. Husband's medical training lasted a total of seven years, and wife provided family support through teaching employment during the remaining five of the seven years. When husband entered the workforce as a physician, the parties agreed that wife would stay at home to start their family and raise the children. Wife was a stay-at-home parent for the remainder of the marriage—approximately 14 years.

"During the last six years of the marriage, husband's professional income, including a $30,000 annual pretax contribution to his retirement plan, averaged more than $260,000 per year. The parties enjoyed a lifestyle commensurate with that level of income, including many vacations, a substantial gift and entertainment budget, and late-model vehicles.

"In 1994, after filing a petition to dissolve the parties' marriage, husband told wife that his income for that year would be drastically reduced because of changes in his practice that had resulted in a substantial reduction in his workload. In a letter to wife, husband stated that his 1994 practice income likely would be less than $150,000 and that `the bottom [was] not in sight.' Husband's attorney restated that position in two letters to wife's attorney, and husband provided letters from other physicians with whom he practiced affirming that there was little or no expectation that husband's income would return to its previous level.

"Based on the foregoing information, the parties agreed to a stipulated judgment of dissolution that presumed an income level of $150,000 for husband. That presumed income was not explicitly posited in the spousal support provision of the judgment, but the child support worksheet filed with the judgment expressly included it. The judgment presumed that wife's gross monthly income was $823. The parties agreed that husband would pay $3,560 per month in spousal support for four years beginning in June 1995 and that, thereafter, support would continue indefinitely in the amount of $2,500 per month. Husband agreed not to seek a reduction in spousal support for the first four years after the judgment was entered should wife remarry, cohabit with another person, or obtain employment. Husband was required to pay child support for each child until the last day of July following the child's graduation from high school. Thereafter, husband was to be solely responsible for the cost of four years of college for each child. The parties agreed that when the older child graduated from high school, child support would be recalculated without the parties having to show an unanticipated, substantial change of circumstances.

"In September 1999, after the parties' older son graduated from high school, husband filed a motion to modify his child support obligation. In response to that motion, and particularly with reference to the income information provided by husband, wife filed a motion to modify the judgment to increase husband's spousal support obligation. Information disclosed in the modification proceeding showed that husband's income and standard of living had, by 1997, returned to their pre-1994 levels. From 1997 through 1999, husband's pretax income averaged $249,000 and, at trial in this proceeding, husband testified that he expected his year-2000 income to range between $240,000 and $270,000. Husband testified that he had taken several foreign vacations since the dissolution and had purchased a new vehicle. Husband also testified that he had not done any additional training or taken any courses to improve his skills or earning capacity since the dissolution judgment was entered in 1995.

"At the time of the modification hearing in 2000, wife was a half-time public school teacher earning $1,566 per month. Wife also was attempting to establish herself as an artist but had income averaging only $60 per month from that work. In addition, wife had passive income of $220 per month and spousal support of $2,500 per month, yielding total monthly income of about $4,300. Wife testified that her lifestyle had deteriorated since the dissolution; she had taken fewer vacations than before, she had traded her late-model vehicle in for an older car, and she now bought her clothes at resale shops.

"There was no evidence in the modification proceeding that, in negotiating the stipulated judgment of dissolution in 1995, husband had misrepresented his then-current income or that his expectation and assertion that it would not increase in the future were unreasonable."

184 Or.App. at 192-94, 56 P.3d 406.

The trial court granted wife's motion for increased support. In a written decision, the trial court reasoned that it was proper to increase support because an increase would permit wife to enjoy a standard of living not overly disproportionate to the parties' marital standard. In that regard, the trial court wrote:

"`This is not a subsistence case; it is a standard of living case. Wife is not starving. Husband's monthly expenses reveal a comfortable standard of living, roughly comparable with that of the marriage. Wife lives substantially below the marital standard of living. Now that [h]usband has resumed that lifestyle, [w]ife is entitled to spousal support based on that life-style.'"² Id. at 194, 56 P.3d 406.

A majority of the judges of the Court of Appeals affirmed the trial court's judgment.³ In its opinion, the majority acknowledged that, in Feves v. Feves, 198 Or. 151, 254 P.2d 694 (1953), this court had held that a post-dissolution increase in a payor spouse's income ordinarily does not constitute changed circumstances warranting an attendant increase in spousal support. However, the Court of Appeals majority determined:

"This is not an ordinary case. Here, the evidence established that husband had resumed an income level commensurate with the parties' predissolution standard of living and that the resumption was not attributable to any post-dissolution enhancement of husband's own personal qualifications or accomplishments. Thus, wife was not seeking increased support based on post-dissolution income increases (1) that exceeded the marital standard of living; or (2) that wife had not, by reason of her marital contributions to husband's earning capacity, helped produce."

Weber, 184 Or.App. at 202, 56 P.3d 406. From that determination, the majority held that Feves

"does not control where, as here, wife has established that (1) the post-dissolution increase in husband's income was not the product of any post-dissolution enhancement of his personal qualifications or accomplishments and (2) it merely restored husband's income to a level that is consistent with the standard of living that the parties enjoyed during the marriage."

Id. Ultimately, the majority concluded that the trial court did not err in increasing wife's spousal support based on husband's increased post-dissolution income.

Instead of focusing on the modification statute, ORS 107.135, the parties have focused, as did the majority and the dissent in the Court of Appeals, exclusively on the application of this court's decision in Feves.⁴ Although we ultimately conclude that the Feves decision contributes to our understanding of ORS 107.135 and, therefore, is important to the resolution of this case, we consider it important to highlight the position that Feves and other decisions of this court occupy within the hierarchical order of family law. To the extent that the legislature...