In this аppeal from the property division provisions of a dissolution decree, wife contends that the trial court’s order requiring her to pay husband $48,000 is inequitablе and unconstitutional. Husband cross-appeals, contending that he should have been awarded approximately half of the total property owned by the parties.
The parties were married for eight years and have two children, ages 3 and 6. Husband, age 31, has been employed for several yeаrs as assistant branch manager of a major bank with an annual salary of slightly over $15,000. Wife is 32, has a college education, and has not been employed sinсe the parties were married in 1969. Both are in good health. The parties’ income was supplemented by substantial gifts and loans from wife’s parents. In 1976, wife reсeived a portfolio of securities as beneficiary of a trust established by her parents in 1959. The securities yield approximately $30,000 in dividends annually, and at time of trial, they were valued at $338,000. Husband brought no separate assets of substantial value into the marriage and had none at the time of trial.
The parties separated in 1977, and the dissolution of their marriage became final a year later. The dissolution decree awarded custody of the two children to wife and ordered husband to pay $30 a month in child support and to maintain life insurance policies with the children as beneficiaries. There was no provisiоn for spousal support. The residence, with an equity of approximately $28,000, was awarded to wife.
Wife contends that the trial court’s division of the parties’ assets was not "just and prоper,” ORS
ORS 107.105(l)(e) sets out the court’s authority to divide the parties’ property in the dissolution decreе. It provides in pertinent part:
"Whenever the court grants a decree of annulment or dissolution of marriage or of separation, it has power further to decree as follows:
* * * *
"(e) For the division or other disposition between the parties of the real or personal property, or both, of either оr both of the parties as may be just and proper in all the circumstances. * * *” (Emphasis supplied.)
The cases recognize that separately ownеd property received by one spouse as a gift may be included in formulating a property division, Dietz and Dietz,
Wife’s constitutional argument is essentially this: Under the Due Proсess Clause of the Fourteenth Amendment, the state, in the exercise of its "police power,” may divest a person of property only if that divestment bears a reasonable relationship to the achievement of the public purposes which underlie the grant of authority. She asserts that the purpоses of ORS 107.105(l)(e), permitting the dissolution decree to award separate property on one spouse to another, are to insure that suppоrt obligations are fulfilled, that the parties are self-sufficient, and that contributions to marital assets are repaid. Here, wife argues,
Both the constitutional analysis and the statutory construction urged by wife are fallacious. The term "police power” — if it has any legal significance at all, see Linde, Without Due Process, 49 Or L Rev 125, 146-58 (1970)—refers to the inherent plenary power of the state, which is subject only to specific constitutional restrictions. Bowden v. Davis,
Wife’s constitutional argument is fallacious in that it assumes that the public purposes of the state function of property division in cases of marriage tеrmination can be listed inclusively, precisely articulated and mathematically applied. Certainly her reference to assurance of the sрouses’ future self-sufficiency as a public purpose is an acknowledgement
Here, the award was equitable. Wife’s gross income from the securities she received in 1976 was nearly twice her husband’s salary, and her income сontributed significantly to their standard of living. The dissolution decree awarded her net assets worth over $300,000, including the parties’ residence, while husband received net assets worth approximately $60,000. Obviously, the trial court’s property division accounted for the source of securities and the fact that wife must use the dividends from the securities to support herself and the children.
Although this court’s review is de novo and we must exercise independent judgment based on our own review of the record, our role is not to substitute our preferences for those of the lower court. We will not modify a property division unless we are convinced that we can make a significantly preferable disposition than that made by the trial court. McCoy and McCoy,
Affirmed. No costs to either party.
Notes
rThe decree also distributed other marital assets and liabilities, but the issues do not require us to set out those provisions.