October 17, 2008

New Case Law – October 15, 2008 decisions of the Oregon Court of Appeals

As a Portland Oregon divorce law firm, Stephens & Margolin LLP is dedicated to keeping up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On October 15, 2008, the Oregon Court of Appeals published 4 opinions on family law cases: 

  • Bean and Bean, in which the court ruled on the amount and duration of a spousal support award and division of military retirement benefits;
  • Brinkly and Brinkly, in which the court ruled on a modificaition of custody request by a non-custodial mother;
  • Cullen and Cullen, in which the court ruled on the amount and duration of spousal support; and
  • English and English, Jr., in which the court ruled on issues of property division and spousal support.

In Bean and Bean, the question before the court was whether wife had been awarded enough spousal support for a long enough period of time and whether she had received a proper amount of husband’s military retirement benefits.  The parties were married for over twenty years and wife had sacrificed her own employment opportunities and moved extensively to enable husband to advance his own military career and raised the parties’ children.  The trial court had awarded wife transitional spousal support of $1,000 for 10 months.  The court of appeals held that was not a sufficient amount or duration of monthly support for wife to obtain enough traning and advancement in her career and modified the amount to $1,500 for 3 years.  The court upheld the trial court’s division of husband’s military benefits based upon the time rule “(because the parties were married for half of the time during which husband accrued retirement benefits, wife was entitled to half of a half-share, see generally Richardson and Richardson, 307 Or 370, 769 P2d 179 (1989)).”  The entire opinion can be reviewed at http://www.publications.ojd.state.or.us/A136278.htm.

In Brinkly and Brinkly the court reviewied a trial court’s decision to modify an award of sole custody to father by providing sole custody to mother.  At the time of the divorce father was awarded sole custody of the parties’ son.  At the time mother was a severe methamphetamine addict.  Three years after the divorce, mother file a motion to modify custody.  At trial, the evidence demonstrated that mother had attended counseling and her methamphetamine addiction was “in full, sustained remission.”  The evidence also showed that father had pulled the child’s ear and had not attended required counseling.  The trial court found that there had been a substantial change in circumstance and awarded custody to mother.  The court of appeals upheld the ruling.  The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A137235.htm.

In Cullen and Cullen, the court of appeals again ruled on the amount and duration of spousal support provided to Wife.  The parties had been married for 25 years.  Husband was 50 and Wife 44.  The parties owned a business together which Husband ran.  Wife’s primary occupation was as homemaker.    The trial court ordered husband to pay “step-down” maintenance spousal support to wife in the amount of $8,000 per month for four months, $7,000 per month for one year, $6,000 per month for the next 18 months, and $5,500 per month for an indefinite time thereafter.  Husband appealed, arguing that the amount of support was too much considering Wife’s assets and investment income that she can earn from the assets.  Prior Oregon caselaw provides that in a long term marriage, “the primary goal of maintenance support is to provide a standard of living comparable to the one enjoyed during the marriage.”  With regard to step-down support, “a judgment may provide for a larger maintenance award initially and a reduced award after a spouse has had an opportunity to achieve financial independence, . . . and may be continued indefinitely where necessary to allow the supported spouse to maintain a lifestyle not overly disproportionate to that enjoyed during the marriage.”  The  court of appeals agreed partially with Husband and reduced the amount of support to an indefinite support award of $4,500 per month.  The entire opinion can be reviewed here:  http://www.publications.ojd.state.or.us/A131021.htm.

In English and English, Jr., the court ruled on both property division and spousal support.  The parties were married for 25 years but lived separately for the last 11 years of the marriage.  In his appeal, “Husband asserts that the trial court erred in finding that evidence of the manner of the parties’ separation did not rebut the presumption of equal contribution to marital assets obtained by husband during that time and in awarding wife compensatory spousal support for her alleged contributions to husband’s career during the marriage.”  The court of appeals ruled for Wife and affirmed the trial court’s ruling.  The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A133289.htm.

If you have any questions about Oregon appellate law or need an Oregon family law appeals lawyer please contact Daniel Margolin or C. Sean Stephens at Stephens & Margolin LLP