895 P.2d 345 | Or. Ct. App. | 1995
Wife appeals from a dissolution judgment. She seeks an award of spousal support as well as modification of both the property distribution and the child support award. Husband cross-appeals and also seeks modification of the property distribution and the child support award. In addition, he appeals from the supplemental judgment for attorney fees and costs. We review de novo, ORS 19.125, and remand for entry of an amended judgment.
At the time of trial, wife was 42 years old and husband was 49. The parties had been married for 16 years and had two children, ages 15 and 13. Husband is a physician and owns part of a weight loss business. Through his employment, he earns more than $10,000 per month. Wife is a high school graduate who, at the time of the marriage, was working in a large department store’s management training program . She quit her j ob when their first child was born in 1978. During the course of the marriage, she contributed significantly to husband’s practice; she managed the clinic’s affairs and kept the books for some time. More significantly, when husband was in an alcohol rehabilitation program for eight months in 1990 and 1991, she was solely responsible for keeping the practice open. During her husband’s absence, she hired doctors and took on more of the responsibilities of managing the affairs of the practice. Husband acknowledged that he would not have had a practice to return to but for wife’s efforts. She currently earns $800 to $900 per month from Cookwell, Inc., a small retail cookware store and coffee shop. The parties own Cookwell in partnership with another couple. They bought the business to provide the wives an opportunity to work and earn money. Both wife and her partner also work two or three days a week at Cookwell.
The parties accumulated significant assets during their marriage. Those assets include husband’s practice, worth $135,620;
Wife first assigns error to the court’s failure to award any spousal support. Under ORS 107.105(l)(d), the court is authorized to award spousal support to one party in “such amount of money for such period of time as it may be just and equitable for the other party to contribute.” One objective of spousal support is to allow each party to achieve an economic standard of living not overly disproportionate to that enjoyed during marriage to the extent that is practicable. Christensen and Christensen, 123 Or App 412, 415-16, 859 P2d 1192 (1993).
Wife testified that she is unable to work and there is evidence in the record, including testimony from wife’s therapist, that corroborates her testimony. However, that evidence is contradicted by the evidence of wife’s efforts during husband’s stay in the alcohol rehabilitation program, as well as her own testimony regarding her ability to work.*
The court apparently thought that wife is entitled to spousal support, but did not award any. The court concluded that “spousal support would ordinarily be considered on a permanent basis but for the income which will be provided the petitioner upon property division.” The court was referring to income produced from the lease of the medical clinic building, which the court considered as income to wife. Nonetheless, the length of the marriage and the standard of living established during the marriage, coupled with wife’s contributions to husband’s practice and her absence from the job market, persuade us that an award of spousal support is appropriate. In the light of these factors, we award wife indefinite spousal support in the amount of $1,000 per month.
Wife next assigns error to the trial court’s refusal to allow her to testify regarding husband’s abuse of her and the children. She wanted to use that evidence to support her claim for spousal support and to rebut the presumed correctness of the child support award derived from the guidelines. OAR 137-50-330. Such evidence is barred by ORS 107.036(2), which provides:
“The court shall not receive evidence of specific acts of misconduct, excepting where child custody is an issue and such evidence is relevant to that issue, or excepting at a hearing when the court finds such evidence necessary to prove irreconcilable differences.”
Wife attempts to put child custody at issue by arguing that, even though husband currently does not request visitation, the court should preemptively restrict his access to the children. We decline to address that issue. If husband ever requests visitation, the court may consider appropriate
Wife next assigns error to the property distribution made by the court. Specifically, she argues that the court incorrectly valued her one-half interest in Cookwell, Inc. Both parties’ experts used the capitalization of earnings method to calculate the value of the business,
On appeal, wife accepts husband’s expert’s calculation, except she argues that he failed to take into account a reasonable salary expense for wife and her partner. By not subtracting this expense, she argues, the expert overstated the income stream and, thus, overstated the value of the business as a whole. We agree with wife that husband’s expert should have subtracted a reasonable salary expense. Husband’s expert valued the entire income stream of Cookwell at $43,625. Wife asks for a total salap
Husband also assigns error to the court’s property distribution. He argues that the court incorrectly valued the pension awarded to him by failing to discount the pension by 34 percent for future taxes. Both parties’ experts testified that the actual value of the pension’s assets is $631,445. Husband’s expert testified that husband would inevitably incur tax liability on the assets when he receives distributions from the pension. He further testified that the tax rate is currently in a state of flux, but that the current rate is 34.5 percent,
The court used a discount figure of 20.5 percent and arrived at a discounted value of $500,000. The parties disagree over the propriety of the discount and, more significantly, what the discount rate should be. We faced a similar question in Alexander and Alexander, 87 Or App 259, 742 P2d 63 (1987). The experts’ positions in Alexander were almost identical to the experts’ positions in this case and, in that case, the trial court discounted the pension’s value by 15 percent. We allowed the use of a discount rate and, because we could find no evidence to support the 15 percent discount figure, we modified the judgment to discount the husband’s pension by 35 percent. A similar result is appropriate here. We can find no evidence supporting a 20.5 percent discount rate and therefore apply a discount rate of 34 percent. Husband’s pension should be valued at $416,754.
Accordingly, we modify the property distribution to assign the correct values to Cookwell, Inc., and the pension. Valuing Cookwell, Inc., at $42,816 and the pension at
Wife next assigns error, and husband cross-assigns error to the court’s calculation of child support. Both argue that the court miscalculated their own and the other spouse’s income. In addition, wife assigns error to the trial court’s failure to find that the presumed correct amount of child support was rebutted by the evidence of the needs of the children. However, our review of the evidence and the trial court’s findings, does not persuade us that there was any error. Accordingly, we affirm the trial court in that regard. Nonetheless, we must remand the case for recalculation of child support to take into account the award of spousal support.
Finally, husband assigns error to the court’s supplemental judgment requiring him to pay $50,000 towards wife’s attorneys fees. Although our review is de novo, the decision of “whether to award attorney fees and costs is a matter largely in the trial court’s discretion.” Reitmeier and Reitmeier, 98 Or App 58, 60, 778 P2d 962 (1989); Haguewood and Haguewood, 292 Or 197, 212, 638 P2d 1135 (1981). In Haguewood, the Supreme Court had an opportunity to address the appropriateness of awarding attorney fees in a case involving substantial assets. There, the court said:
“property and payments have been awarded to the parties evenly. Substantial costs of litigation for both sides have been reasonably incurred. If the husband is to pay the wife’s cost of litigation, then the property division should be adjusted accordingly to reflect his assumption of her obligation. That is not necessary, however, because both parties are financially able to pay their attorneys with resources now or soon available to them * * *. In other words, both parties will have equal estates and access to resources with which to pay for the litigation. There is no reason to require either to bear the other’s costs.” Id. at 213-14.
We reach a similar result in this case. Because both parties were awarded substantial financial resources that will enable each to pay their own attorney fees, and, because there are no other circumstances in this record that would call for the
On appeal and cross-appeal, remanded for entry of amended judgment awarding wife judgment of $17,477, awarding wife spousal support of $1,000 per month commencing October 19, 1993, and for child support; on cross-appeal, supplemental judgment reversed. No costs to either party.
Most of the assets were evaluated by both husband’s and wife’s experts. Where they were able to agree on a value for an asset, we have used that value. Where the experts have disagreed, we note the disagreement in this opinion.
As explained later in the opinion, the court discounted the value of the pension
When asked if she worked 40 - 50 hours per week during husband’s alcohol treatment program, wife testified:
“Of course, I was trying to keep my husband’s practice open so he had something to come back to. I’d work 80 hours a week to do that.”
Wife was allowed to testify and introduce evidence of her and the children’s continued need for therapy and counseling. We have weighed this information in our consideration of her other assignments of error regarding spousal support and child support.
Wife’s expert also used the book value approach and determined that a one-half interest in Cookwell would be worth $34,000.
See, e.g., Advising Oregon Business, Oregon Continuing Legal Education, §46.11 (1991)
The difference in values results from a number of factors including wife’s expert’s application of a minority discount and subtraction of a salary expense and husband’s expert’s readdition of accelerated depreciation expense.
Husband’s expert testified that a 34.5 percent rate is the appropriate one. However, on appeal, husband only argues for the 34 percent rate that he used on his joint assets and liabilities worksheet that he submitted to the court.
Although it can be argued that future tax rates are speculative in that they are subject to change, they are no more speculative than the capitalization rate applied to value corporations, see infra.
In Craig v. Craig, 30 Or App 419, 567 P2d 141 (1977), we said:
1 ‘The reasonableness of attorney fees is a question of fact tobe determined in the light of the particular circumstances of the individual case. The factors to be considered include the nature of the proceeding, the novelty and difficulty of the issues involved, the time reasonably required for research, preparation and for trial, the skill and standing of counsel, the value of the interest involved, the result obtained and the other financial demands the decrees place on the husband. Colbath and Colbath, 15 Or App 568, 516 P2d 763 (1973).
“* * * The amount of any contribution is intertwined in the financial considerations of the parties and is in reality in the nature of a property division.” Id. at 423.
