Uhde and Uhde

• Decision Date: 26 December 2007
• Docket Number: A130945.,010361.
• Parties: In the Matter of the MARRIAGE OF Denise L. UHDE, Petitioner-Appellant Cross-Respondent, and Jack B. Uhde, Respondent-Respondent Cross-Appellant.
• Court: Oregon Court of Appeals

175 P.3d 511

217 Or. App. 258

In the Matter of the MARRIAGE OF Denise L. UHDE, Petitioner-Appellant Cross-Respondent, and Jack B. Uhde, Respondent-Respondent Cross-Appellant.

010361.

A130945.

Court of Appeals of Oregon.

Argued and Submitted August 7, 2007.

Decided December 26, 2007.

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant-cross-respondent.

Mark Johnson argued the cause for respondent-cross-appellant. With him on the brief were Johnson Renshaw & Lechman-Su PC.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

HASELTON, P.J.

Wife appeals, and husband conditionally cross-appeals, from a judgment of dissolution of marriage. Wife asserts that the trial court erred in denying her an award of maintenance spousal support, in requiring her to be solely responsible for transporting the parties' children for her parenting time, and in denying her request for attorney fees. On cross-appeal, husband argues that, if wife is awarded spousal support on appeal, she should be required to pay child support. Although we affirm the trial court's decision with respect to transportation for parenting time, we conclude that the trial court erred in denying wife maintenance spousal support pursuant to ORS 107.105(1)(d)(C).¹ That disposition requires a remand for reconsideration of wife's asserted entitlement to attorney fees. Finally, with respect to the cross-appeal, because wife is entitled to an award of maintenance spousal support, we remand for the trial court to determine wife's child support obligation in light of our disposition. We review de novo, ORS 19.415(3); see Dennis and Dennis, 199 Or.App. 90, 92 n. 2, 110 P.3d 607 (2005), and find that the material facts are as follows:

Husband and wife were married in December 1989. At the time of the dissolution trial in December 2003, husband was 46 and wife was 42. Husband has a post-graduate degree and worked throughout the marriage in a variety of administrative positions. At the time of the trial, he was the manager of information systems development at the Georgia Pacific lumber mill in Toledo, Oregon. In that position, husband earned an annual base salary of $81,100, which was augmented by bonuses, yielding total annual compensation of approximately $110,000.

Wife suffers from bipolar disorder, which is being managed through therapy and medications. She has completed high school and has accumulated 80 college credits, without obtaining a degree. Although wife is an accomplished violinist who has played on occasion with local orchestras, she has no history of significant employment outside of the home and has never held employment that would have permitted her to be self-sufficient. Following the birth of the parties' first child in 1991, the parties agreed that wife would stay at home full time.²

The parties separated in January 2001, with husband moving out of the family residence. Two weeks later, Larry Friesen began "visiting" wife and "staying as a guest," moving into the family residence in April 2001. Sometime after Friesen moved in and before September 2001 — the record is unclear as to precisely when — the parties' three children began living with husband and were continuing to do so at the time of the trial in late 2003. In September 2001, wife and Friesen moved to Vancouver, Washington, where they were still living at the time of trial.

The continuing relationship between wife and Friesen was the dispositive consideration in the trial court's decision not to award wife any maintenance support — and, consequently, is central to our review of that determination. Accordingly, we recount in detail our findings regarding the nature of that relationship and of Friesen's financial contributions towards wife's financial needs. From no later than April 2001 and through the trial in this matter more than two and one-half years later, wife and Friesen lived, and continued to live, in a committed relationship akin, in many essential aspects, to a domestic partnership or marriage. As of the time of trial, there was every indication that that relationship would continue.

Throughout their period of cohabitation, Friesen contributed substantially toward the payment of wife's living expenses. Although the record is not entirely clear, it appears that, from the time that Friesen and wife moved to Vancouver, he paid all, or virtually all, of her expenses for housing (she lived with him without paying rent), food, and utility expenses. However, husband's health insurer continued to provide coverage for wife's medical and psychiatric expenses, including the very substantial cost of some medications. In addition, husband continued to make monthly payments of $225 on wife's vehicle.³

The dissolution trial occurred in December 2003, nearly three years after the parties separated. At trial, wife sought an award of maintenance spousal support of $2,750 a month for 36 months, $2,000 a month for the next 24 months, and $1,500 a month indefinitely thereafter. Wife also sought an order directing husband to participate equally in the round-trip transportation of the children from Newport to Vancouver for her parenting time, as well as an award of attorney fees. On appeal, wife challenges the trial court's adverse disposition on each of those matters, with principal emphasis on the trial court's determination that she was not entitled to any award of maintenance spousal support.⁴

In determining that wife was not entitled to any maintenance spousal support, the trial court acknowledged that husband earned approximately $110,000 a year; that wife, because of her mental health constraints, could earn no more than $1,000 a year; and that, given that disparity and other material considerations under ORS 107.105(1)(d)(C), wife would ordinarily be entitled to a substantial award of maintenance spousal support. However, in the trial court's view, wife's continuing relationship with Friesen — and his assumption of at least a very substantial portion of her expenses — effectively abrogated any obligation by husband to pay maintenance support:

"[Wife] is a woman who has been, and will remain, unable to generate any workplace income. * * * For the balance of her life, she will not be able to survive without being supported financially by someone else.

"* * * * *

"* * * Wife is a person who is clearly entitled to spousal maintenance. At no time during the marriage did Husband not understand that he was her sole source of income, that he was her sole provider. The dissolution of the marriage does not change her dependence.

"* * * * *

"[Nevertheless], [i]f [under Bates and Bates, 303 Or. 40, 733 P.2d 1363 (1987),] remarriage or its equivalent may constitute a `change of circumstances' justifying termination of a spousal support obligation, they surely represent factors which would warrant ordering no spousal support in the first instance.

"* * * * *

"* * * [T]he testimony and exhibits demonstrate that Mr. Friesen has significant assets and income, such that [wife] will be able to enjoy a lifestyle consistent with that which [husband] provided to her during their years together. Had Mr. Friesen come along later, after spousal support had been awarded in this case, that support would be terminated at this juncture because the purposes of the initial award would have been met. Given that, no spousal support should be awarded at this time. In addition to the other benefits of Mr. Friesen's relationship with [wife], he has been, and is, providing what would otherwise be the spousal maintenance that would be [husband's] responsibility."⁵

Wife challenges that disposition. She acknowledges that her continuing relationship with Friesen may be a basis for reducing husband's putative maintenance spousal support obligation — i.e., "the financial assistance that Friesen has given, and may in the future continue to give, needs to be factored into the [spousal support] analysis." However, wife asserts that, given the proper application of ORS 107.105(1)(d)(C) to the totality of her circumstances, the trial court erred in determining that her relationship with Friesen precluded any obligation on husband's part. She concludes that Friesen's financial assistance "in no way is a complete substitute for all support, ever."

Husband remonstrates that Friesen has, effectively, fully assumed the payment of wife's living expenses and that he has the capacity to continue to do so. Consequently, husband reasons, by analogy to cases involving modification of spousal support following the recipient's remarriage, the trial court's decision comported with ORS 107.105(1)(d)(C).

We note, at the outset, the unusual, albeit not unprecedented, posture of this case. We and the Oregon Supreme Court have frequently decided cases involving motions to modify or eliminate a spousal support obligation following the recipient's remarriage or post-dissolution participation in a domestic relationship. Morrison and Morrison, 139 Or.App. 137, 145, 910 P.2d 1176 (1996). See, e.g., Bates and Bates, 303 Or. 40, 44, 733 P.2d 1363 (1987); Bishop and Bishop, 137 Or.App. 112, 903 P.2d 383 (1995); Ho and Ho, 93 Or.App. 421, 762 P.2d 344 (1988); Vaughn and Vaughn, 25 Or.App. 655, 550 P.2d 1243 (1976).⁶ The inquiry in such cases is not whether the new relationship "bears the economic earmarks of a marital relationship" but, instead, "whether [the recipient spouse's] anticipated living expenses have been materially reduced because of [the] new living arrangement and whether that arrangement is likely to continue." Bishop, 137 Or.App. at 115, 903 P.2d 383. However, we have rarely addressed circumstances in which the new relationship has been established before the dissolution — before the trial court's initial determination of entitlement, if any, to spousal support — rather than after the dissolution. Indeed, it appears that we have only one reported decision in that posture: Howard...