Tilson v.
| Decision Date | 26 December 2013 |
| Docket Number | C103209DRC; A151442. |
| Citation | 317 P.3d 391,260 Or.App. 427 |
| Parties | In the Matter of the MARRIAGE of Sandra Jean TILSON, Petitioner–Respondent Cross–Appellant, and Douglas Victor Tilson, Respondent–Appellant Cross–Respondent. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Helen C. Tompkins argued the cause for appellant-cross-respondent. On the briefs was Launa Lawrence Helton.
Margaret H. Leek Leiberan argued the cause for respondent-cross-appellant. With her on the briefs was Jensen & Leiberan.
Before SCHUMAN, Presiding Judge, and DUNCAN, Judge, and LAGESEN, Judge.*
The issue in this case is whether wife's remarriage approximately five months after the dissolution of her marriage to husband resulted in “a substantial change in economic circumstances” sufficient to permit the trial court to reconsider the spousal support award to wife under ORS 107.135(3)(a),1 and, if so, whether the trial court abused its discretion when it continued husband's $1,000 monthly maintenance support obligation after terminating husband's $500 monthly transitional support obligation. We hold that the trial court correctly concluded that wife's remarriage resulted in a sufficient change in wife's economic circumstances to authorize the trial court to reconsider the spousal support award and that the trial court acted within its discretion when it continued maintenance support. Accordingly, we affirm.
In accordance with our standard of review, we “state the facts consistently with the trial court's express and implied findings, supplemented with uncontroverted information from the record.” Kirkpatrick and Kirkpatrick, 248 Or.App. 539, 541, 273 P.3d 361 (2012). The parties' 20–year marriage was dissolved on June 9, 2011. At the time of the dissolution, husband earned a monthly gross income of $5,411.18 from his job as a TriMet light-rail operator. Wife earned approximately $726 per month as a self-employed nail technician. The trial court awarded spousal support to wife as follows: $2,000 per month ($1,000 as transitional support and $1,000 as maintenance support) for three months, from May 1, 2011 to August 1, 2011; $1,500 per month ($500 as transitional support and $1,000 as maintenance support) for two years, to August 1, 2013; and $1,000 per month as maintenance support for an indefinite period of time beginning August 1, 2013. The dissolution judgment stated that spousal support was
“awarded based on the length of the marriage (20 year marriage); the disparity in the parties' income; Wife sacrificed her career in part to help advance Husband in his career and to help care for Husband's son; and Wife is not afforded the same benefits from employment as Husband.”
The judgment further stated, “At any point, if Wife obtains employment where she consistently grosses $3,600.00 a month plus full benefits, Husband may [move] the court for a Show Cause hearing regarding modification of spousal support.”
Approximately five months later, wife remarried. At the time of dissolution, wife had been cohabitating with her new spouse, Prucha. However, at that point, neither wife nor husband anticipated that wife would marry Prucha. Upon learning of wife's remarriage, husband moved to modify the award of spousal support.
The trial court held an evidentiary hearing in March 2012 to evaluate the parties' respective financial positions. At that time, husband was earning approximately $400 less per month than he had been earning at the time of dissolution because of a reduction in his shift length, but husband did not contend that that reduction in income warranted a reduction in his spousal support obligation. Wife was employed as a cashier for a bark-dust company, a job she had held for several months. She was earning approximately $1,668.33 per month. The job permitted wife to take online classes in her free time at work. Through those classes, wife was developing the skills required to transition into better employment. Prucha was earning at most $3,856.67 per month 2 as a drafter for a manufacturing company. Prucha had a $413.60 monthly child support obligation and paid $50 a month for his son's health insurance coverage. Wife obtained dental insurance through Prucha's employer, paying for that coverage herself; wife recently had obtained basic medical coverage through her employer.
Wife and Prucha had not commingled their finances and were leery of doing so because of their experiences with prior marriages. Nonetheless, Prucha's intent in marrying wife was to live with her, and to take care of her, for the rest of his life. As a result of her remarriage, wife felt that she no longer needed the $500 monthly transitional support, which was scheduled to run for nearly another year and five months, provided that she could ask the trial court to restore the additional support if her new marriage did not succeed. However, wife felt that she still needed the $1,000 monthly maintenance support.
The trial court concluded that wife's remarriage resulted in an unanticipated “substantial change in economic circumstances” for purposes of ORS 107.135(3)(a) that permitted the court to reconsider the award of spousal support.3 The court then determined that those changed circumstances warranted the discontinuation of the award of transitional support but did not warrant modification of the maintenance support award. The court reasoned that, notwithstanding wife's remarriage and “the fact that there are some benefits that flow” to wife as result of the remarriage,
“the reality is, she still has to be largely self-sufficient here, and she doesn't have income for that, but I think with the maintenance that's ordered, that will be enough to get her what she needs to help her pay off her debt, have something of a rainy-day fund, but also to survive at a reasonable level.”
The court entered a supplemental judgment modifying the award of spousal support, husband timely appealed, and wife timely cross-appealed. On appeal, husband assigns error to the trial court's decision to continue maintenance support. On cross-appeal, wife assigns error to the trial court's determination that wife's remarriage constituted a “substantial change in economic circumstances” that authorized the court to reconsider the award of spousal support.
Husband requests de novo review only conditionally, asking that we engage in de novo review on appeal if we grant wife's request for de novo review on cross-appeal, but not otherwise. Although wife requests de novo review on cross-appeal, she has not demonstrated that this is an “exceptional case” warranting de novo review.4ORS 19.415(3)(b); ORAP 5.40(8)(c); Kaptur and Kaptur, 256 Or.App. 591, 596 n. 2, 302 P.3d 819 (2013). Accordingly, we decline to review de novo on either the appeal or cross-appeal. Instead, we review as follows.
Whether there has been a “substantial change in economic circumstances of a party” sufficient to warrant reconsideration of an award of spousal support under ORS 107.135(3)(a) presents a mixed question of fact and law. We review the trial court's implicit and explicit findings of historical fact regarding the parties' economic circumstances to determine whether those findings are supported by any evidence in the record. Long and Leduc, 237 Or.App. 652, 654, 241 P.3d 340 (2010). We review the court's determination that those facts constitute a “substantial change in economic circumstance of a party” under ORS 107.135(3)(a) for legal error. See generally Weber and Weber, 337 Or. 55, 91 P.3d 706 (2004) ().
If the changes to the parties' economic circumstances are sufficient to permit reconsideration of an award of spousal support, we review for abuse of discretion the trial court's determination whether and to what extent to modify the award. That standard of review follows from the fact that the trial court's task upon reconsideration of spousal support is to determine what level of spousal support, if any, is “just and equitable under the totality of the circumstances.” Luty and Luty, 245 Or.App. 393, 401, 263 P.3d 1067 (2011) (footnote omitted). And we review “the trial court's ultimate determination about a ‘just and equitable’ amount of support for abuse of discretion.” Bailey and Bailey, 248 Or.App. 271, 275–76, 273 P.3d 263 (2012).
A two-part framework governs the determination whether, and to what extent, an award of spousal support should be modified under ORS 107.135(3)(a). Frost and Frost, 244 Or.App. 16, 22–23, 260 P.3d 570 (2011). The threshold question is whether there has been “a substantial, unanticipated change in [economic] circumstances since the time of the earlier award.” Tomos and Tomos, 165 Or.App. 82, 87, 995 P.2d 576 (2000). Absent a qualifying change in circumstances, a trial court lacks authority to modify an award of spousal support. Weber, 337 Or. at 70, 91 P.3d 706. If the requisite change is present, then the trial court must determine what amount of support is “just and equitable under the totality of the circumstances.” Frost, 244 Or.App. at 23, 260 P.3d 570 (); see also Barron and Barron, 240 Or.App. 391, 397, 246 P.3d 500 (2011) (setting forth framework).
Here, the trial court correctly concluded that wife's remarriage resulted in a substantial, unanticipated change in the economic circumstances of the parties sufficient to permit the court to reconsider the award of spousal support. First, husband and wife both testified that they did not anticipate wife's remarriage at the time of the initial award of spousal support. Given that testimony, the court correctly found that wife's remarriage was unanticipated.
Second, with respect to...
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