MATTER OF MARRIAGE OF TOMOS

• Decision Date: 12 January 2000
• Citation: 995 P.2d 576,165 Or. App. 82
• Parties: In the Matter of the MARRIAGE OF Ioana Maria TOMOS, Respondent, and Jon Tomos, Appellant.
• Court: Oregon Court of Appeals

995 P.2d 576

165 Or. App. 82

In the Matter of the MARRIAGE OF Ioana Maria TOMOS, Respondent, and

Jon Tomos, Appellant.

(94-7-275; CA A103510)

Court of Appeals of Oregon.

Argued and Submitted November 1, 1999.

Decided January 12, 2000.

Les Rink, Beaverton, argued the cause and filed the brief for appellant.

Darren Nienaber, Certified Law Student, argued the cause for respondent. With him on the brief were Theresa L. Wright and Lewis and Clark Legal Clinic.

Before LANDAU, Presiding Judge, and LINDER, Judge, and BREWER, Judge.

BREWER, J.

Husband appeals from a judgment awarding indefinite spousal support to wife in this proceeding to modify the judgment dissolving the parties' marriage. Husband contends that the trial court erred in determining that his increased income and deterioration in wife's health and employability constituted changes of circumstances warranting an award of indefinite spousal support. On de novo review, ORS 19.415(3), we affirm.

The parties were married for 28 years. They have one adult child. Their marriage was dissolved in April 1995 pursuant to stipulation. The judgment awarded spousal support to wife in a "lump sum partial amount" of $7,500 and the further sum of $300 per month for two years. The judgment also provided:

"Neither party may seek relief from the court by any motion to modify * * * for a period of 30 months from the date of this decree * * * either party may make application to the court, based upon a material change of circumstances, concerning spousal support after 30 months from the date of this decree. For purposes of determining any change of circumstances in the future, [wife's] income for 1994 was approximately $16,000 and [husband's] income for 1994 was approximately $16,000."

In May 1998, wife filed this modification proceeding to reestablish spousal support. At the time of the July 1998 hearing on wife's motion, husband was 58 and wife was 54 years old. A brief history of the parties' circumstances preceding the dissolution of their marriage will place their current dispute in context.

Both parties received professional educations in their native country, Romania, before immigrating to the United States in 1976. Husband was trained in law and wife in architecture. Wife worked as a civil engineer from 1977 until 1985 and supported the family during a portion of that period while husband attended law school. Wife later worked in husband's law office and, after the parties moved to Oregon in 1987, was employed as a civil engineer designer until 1988. At that time, an on-the-job back injury forced wife to leave that employment, because she was no longer able to work long hours at a drafting table. As a result of that injury, wife received a 37 percent permanent partial disability award and was paid monthly workers' compensation benefits until 1990. After wife's injury, the parties' purchased and remodeled several houses, using the proceeds of wife's benefits. Wife provided architectural services for those projects.

In 1994, the parties separated. At that time, wife went to work on a temporary basis for Multnomah County as a construction project manager. She primarily performed budgeting services, which she testified were indirectly related to her professional training. That job ended in 1996. Wife earned approximately $29,000 in 1995, the year of dissolution, and $25,000 in 1996. Wife's 1996 earnings also included income from a temporary job in which she performed translation work. Wife's income declined to approximately $10,000 in 1997, and she earned about $7,000 in the first half of 1998. Husband presented evidence that wife reported about $10,000 less than her actual income between 1995 and 1997. Husband also presented expert testimony that wife could earn between $25,000 and $33,000 per year in one of several professions for which he asserted she was qualified.

Wife testified that her health deteriorated substantially following the dissolution. Her back condition continued to bother her, and she suffered from depression, anxiety attacks, chronic laryngitis, diabetes, and complications associated with a head injury resulting from a fall. At the time of the modification hearing in July 1998, wife worked sporadically as an interpreter, received food stamps, and was covered under the Oregon Health Plan. Wife was using the proceeds of a second mortgage against her home that she secured in order to meet living expenses. Wife testified that, in spite of her health problems, she had applied for more than 70 employment positions since her temporary job as a translator ended in 1996. She testified that her job search was hampered by three factors: age, deteriorating health, and lack of up-to-date training in the engineering field. As a result, wife was unable to find full-time employment that would enable her to become wholly self-supporting.

After the parties separated, husband moved to Chicago, where he practices law. His income increased from about $16,000 in 1995 to at least $36,000 per year at the time of modification. Husband has remarried and has about $33,000 in consumer debt, including expenses for two trips he took to Europe with his current wife, and $7,500 in credit card debt for payments to wife in 1995. Husband testified that he cannot afford malpractice insurance or a secretary and that he has a heart condition that slows the pace of his work.

The trial court made the following written findings in the judgment modifying the dissolution judgment:

"1. There has been a material change of circumstances in that economically [husband] is now making over twice the amount he was making at the time of dissolution of marriage, and that [wife] has improved her income, but that it is now declining.

"2. There has been a further material change of circumstances in that [wife], due to a decision by the couple during the marriage, * * * turned from her career as an architectural draftsperson to pursue other economic opportunities, current lack of upgrade of computer skills, and her health, has made it difficult to obtain full time employment.

"3. This was a long term marriage, and that indefinite spousal support is warranted."

In oral findings made on the record before the entry of judgment, the trial court also found that wife's health problems were genuine and rejected husband's charge that they were staged in order to advance a claim for extended spousal support. The court also found wife's testimony concerning her search for employment to be credible. The court further found that both parties had understated their incomes to some extent but that wife was living "tenuously." The court ultimately awarded indefinite spousal support to wife in the sum of $400 per month. In doing so, the court considered husband's other financial obligations and awarded an amount it considered necessary "to stave off total poverty" for wife. This appeal by husband followed the entry of...