March 16, 2009

New Case Law – an Oregon divorce lawyer’s take on why NOT to harass your spouse post separation (and a few other issues)

On March 4, 2009, the Oregon Court of Appeals published an opinion in Boyd and Boyd.  In the Boyd case, wife appealed from a divorce judgment, claiming the trial court erred in dividing the marital property, awarding husband attorney fees, and in the amount of her spousal support award.  The parties had been married 30 years, and had been gifted substantial monies during the marriage from wife’s family.  Husband was making $4000 per month at the time of the dissolution, and wife was not working, nor did she work during the marriage. Wife also received by inheritance real estate worth approximately $133,000.  The trial court included wife’s inherited property in the property distribution and awarded it to wife (rather than awarding it as wife’s separate property).  The court’s original math had wife receiving approximately $15,000 more in property than husband.  The trial court also awarded husband $13,274.70 in attorney fees, and gave wife $200 per month indefinite spousal support.  The trial court’s logic was that wife would receive reduced spousal support and the long half of  the property in exchange for not having to pay an equalizing judgment.

Both parties made corrections to the trial court’s letter opinion. The brickyard property and husband’s retirement had been substantially overvalued. The trial court’s new math resulted in wife receiving $50,000 more in property than husband, however, the court still did not order an equalizing judgment to be paid.

The Court of Appeals disagreed with the trial court’s inclusion of the inherited property in the distribution, and excluded it as wife’s separate property.   The court noted that excluding the property produced a more equal distribution.

The Court of Appeals also disagreed with the trial court that $200 per month of spousal support was adequate in a long term marriage.  The court raised wife’s support award to $750 per month and noted that the primary goal of spousal support in a long term marriage is for the receiving spouse to enjoy a standard of living not overly disproportionate to that enjoyed during the marriage.  The effect of the increase in spousal support was to eqalize  husband and wife’s post divorce income, assuming that wife could earn minimum wage.

The court upheld husband’s award of attorney fees against wife.  We previously blogged about the analysis the court uses in determining if one party should pay the other’s fees, and if so, how much.  The Boyd court focused on wife’s post separation conduct. Wife was angry, and had left about 700 messages on husband’ s answering machine in the 16 months between separation and trial. Many of them were threats that she would make this expensive, that she would not settle and would then appeal, and that husband could not afford to fight her.  Many of the messages ended up as an exhibit in court. 

This is an interesting case for several reasons. First, the trial court’s math and analysis were flawed, and the result at the court of appeals may have been different had the trial court not changed its ruling.  Help your attorney get accurate values on assets, accounts, and debts so they can get good information to the court.

This case is also interesting for the attorney fee award against wife.  As divorce lawyers, we see many parties who are embittered by the divorce process, and who then lash out at their spouse.  We tell people not to do it. The wife in Boyd probably didn’t listen to her lawyer’s advice, and was dumb enough to leave repeated threatening messages that ended up as exhibits in court! You should assume that anything you write (or say on a recorded message) during litigation may show up as an exhibit in trial, but Ms. Boyd still could not restrain herself.  While we are a no fault divorce state, the court can and will consider conduct under ORS 20.075 (1) and ORS 20.075(2)in determining if a spouse should pay the other’s fees.  

The entire opinion can be found at