Husbаnd appeals a dissolution judgment, challenging the trial court’s property division and decision to award wife a portion of her attorney fees. Husband contends that the court unjustly required him to pay certain debts without giving him a balancing award of other property. He also argues that the court improperly awarded attorney fees without giving him an adequate opportunity to object to the amount of fees that wife requested. We сonclude that the trial court did not abuse its discretion in dividing the property as it did. See Kunze and Kunze,
Except as discussed below, the pertinent facts are undisputed. Husband and wife moved in together and combined their finances in July 2000, they married in August 2002, and the dissolution petition was filed in late 2008. At issue in the divorce was the division of property including personal property, three real properties, and husband’s irrigation business, Fay and Company, as well as debts including $136,296 owed in back taxes and a home equity line of credit. To accomplish that division, the trial court first assigned each item either to husband or to wife. The court then totаled the value of the property and debts awarded to each party (with some exceptions, which we explain in more detail below), and ruled that husband was entitled to an equalizing payment of $10,567 from wife because the net value of property awarded to her exceeded the net value of the award to husband by twice that amount.
In conjunction with that ruling, the court also assigned business-associated debts to husband, again at zero value for purposes of the property division. That assignment is reflected in the judgment, which, along with awarding husband the business, also states that husband “shall assume and pay and hold [wife] harmless from any and all tax debts, credit card debts and loans related thereto.”
The trial court appears to have been skeptical about husband’s assertions regarding the balance owed on the HELOC. That skepticism is reflected in the court’s letter opinion, which spells out the ramifications of awarding the Sleepy Hollow property to husband. In that letter, the court rejected husband’s testimony that the property was subject to a total mortgage of $175,000, and stated, “[N]o documentation was offered into evidence [to support husband’s testimony], and the court instead will rely on the documents in evidence.” Accordingly, when calculating the amount of equity in the Sleepy Hollow property to attribute to husband for purposеs of equalizing the property awards, the court subtracted from its value only the $88,067 balance on a first mortgage that was documented in a mortgage statement admitted into evidence. The court did not subtract any amount either for the HELOC that husband testified was secured by the Sleepy Hollow property or for any other debt.
In discussing the Harbeck property, the court similarly noted that husband had testified that the parties had negative equity in the prоperty, and again expressed skepticism: “Husband testified that a mortgage on this property exceeds its value by $10,200; no documents are in evidence, however, although Wife agrees that Husband has a business-related line of credit.” The court awarded the property to wife and ordered husband to pay the outstanding
Although the court stated in the letter opinion that it would rely only on documented evidence of the parties’ mortgage debts, the judgment (which wife’s attorney drafted) refers to the HELOC in the provision disposing of the Sleepy Hollow property. That portion of the judgment states that husband is awarded the property “subject to the mortgage obligations [on the first mortgage of] $88,067.00,” as well as the HELOC “in the approximate amount of $90,000, which obligations [husband] shall assume and pay***."
In sum, although the court purported to divide the marital assets equally and, consistently with that aim, concluded that husband was entitled to an equalizing payment of $10,567 from wife, husband is obligated to pay debts that may approximate $223,000 ($136,296 in taxes associated with husband’s business plus the roughly $87,000 that husband claims is owed on the HELOC) that the court did not factor into the property equalization.
On appeal, husband contends that the trial court erred in requiring him to pay the HELOC and tax debts. Without awarding him other property to offset those debts, husband argues, requiring him to pay them results in an unjust disparity in the property division.
In response, wife first contends that husband failed to preserve the asserted claims of error. On the merits, she argues that the trial court appropriately exercised its discretion in ordering husband to pay the HELOC, given husband’s practice of mixing personal and business expenses and wife’s testimony that the HELOC was usеd for business-related purposes. With respect to the tax debt, wife argues that the debt is associated with husband’s business and that the court followed the general practice of allocating business debts to the party who receives the business.
We begin with preservation of error. We agree with wife, in part: Husband failed to preserve any issue with respect to the tax debt. Husband does not identify any point in the record where he alerted the triаl court that the debt should not be attributed to his business and should, instead, be included in an equal division of marital assets. See ORAP 5.45(4)(a)(l) (“Each assignment of error, as appropriate, must specify the stage in the proceedings when the question or issue presented by the assignment of error was raised in the lower court ***.”). In the preservation section of his brief, husband asserts that he “did not agree with wife’s balancing computations, which omitted the HELOC loan and the IRS debt,” but he dоes not identify where in the record he asserted that disagreement, much less where (or even if) he argued to the trial court that he disagreed with wife’s computations because they omitted the tax debt. Our own review of the record has not revealed anything resembling preservation of the asserted error. To the extent that husband might contend that he was unaware that the trial court would treat the tax debt in the manner that it did and therefore had no oppоrtunity to object, the court’s letter opinion made clear how it would treat the debt in the
We reach a different conclusion with respect to husband’s arguments about the HELOC. At trial, husband claimed that the HELOC, like the first mortgage on the Sleepy Hollow property, was a lien on that property and that it “couldn’t be sold if we had to without satisfying those first,” thereby asserting that the HELOC diminished the equity in the property. He also told the court that he had “no problem giving [wife] the Harbeck property and the debt that goes with it,” again referring to the HELOC, which he claimed encumbered both properties. In context, those statements sufficiently notified the trial court of husband’s position that the HELOC should be considered in balancing the property awards. It follows that the issue is preserved for appeal.
We turn to the merits of husband’s contention that the trial court erred by not dividing the HELOC debt between the parties. ORS 107.105(1)(f) provides the court in a dissolution proceeding with authority to divide the parties’ property, and it directs the court to do so in a manner that is “just and proper in all the circumstances.” The statute distinguishes between property brought into the marriage and property acquired during the marriage. Kunze,
As the previous paragraph indicates, other considerations may bear on what is just and proper with respect to division of both marital assets and other marital property. The timing of, and relative contributions to, the acquisition of property are two significant considerations in the “just and proper” determination, but they are not thе only relevant factors. Rather, courts also must consider equitable factors, including “the preservation of assets; the achievement of economic self-sufficiency for both spouses; the particular needs of the parties and their children; and * * * the extent to which a party has integrated a separately acquired asset into the common financial affairs of the marital partnership through commingling.” Kunze,
As part of determining a just and proper division of the parties’ property, “a court may divide the debts that the parties incurred during their marriage.” Shlitter and Shlitter,
Ultimately, the determination of what is just and prоper in all the circumstances is a matter of discretion for the trial court, and we will disturb the court’s decision only
In this case, the trial court did not expressly make a finding on the use to which the HELOC proceeds were put. We exercise our discretion to determine that fact de novo, see ORS 19.415(3)(b), and find, in accordance with wife’s testimony, that the proceeds were used in part to support husbаnd’s business and in part to finance improvements to the Sleepy Hollow property. However, no documentary evidence establishes how the HELOC proceeds were divided between those uses, and wife’s testimony on that point is not detailed. Consequently, we cannot determine what portion of the debt is attributable to husband’s business and what portion, instead, properly could be associated with Sleepy Hollow (which would reduce that рroperty’s value for purposes of the equalizing judgment).
Under those circumstances, our inability to apportion the debt is attributable, at least in part, to the way in which husband handled the parties’ finances. Given his assumption of that responsibility, he was in a better position than wife to provide evidence concerning the uses to which the HELOC proceeds were put. On that point, however, husband provided no documentary evidence. Insteаd, he simply testified that he had never used the HELOC funds for business purposes — and the trial court implicitly found that testimony not to be credible. We defer to that implicit lack-of-credibility finding, which is consistent with the trial court’s explicit finding that wife was more credible than husband regarding other matters. Given the dearth of evidence concerning the HELOC and our finding that it is at least partly a business debt, we see no way to improve on what we infer to be an implicit decision by the trial court to attribute the entire debt to husband’s business. At the very least, we cannot say that the court abused its discretion when it included the HELOC in the conglomeration of business assets and debts that it assigned to husband at zero net value. Accordingly, we reject husband’s first assignment of error.
In his second assignment of error, husband challenges the trial court’s award of attorney fees to wife. In its June 2010 letter opinion, the trial court stated that it
Husband argues that the court did not give him adequate time to respond to wife’s fee request. He contends that, under ORCP 68 and ORCP 10 C, the court was required to allow him 17 days to respond to wife’s fee request, which it did not do. Wife responds first that husband failed to preserve the issue for appeal because he did not object to the award of attorney fees, file a motion to reconsider, or attempt to contact the court regarding the fee award. On the merits, wife does not assert that the court gave husband sufficient time to respond to her fee petition. Instead, she simply contends that the court’s discretionary fee award was appropriate, taking into account the considerations listed in ORS 20.075.
The same analysis informs our conclusions on both preservation and the timing of the fee award. ORCP 68 C(4)(b) sets out the requirements for objecting to an attorney-fee request, providing, in pertinent part, “Aparty may object to a statement sеeking attorney fees or costs and disbursements or any part thereof by written objections to the statement. The objections shall be served within 14 days after service on the objecting party of a copy of the statement.” ORCP 10 C provides that,
“[ejxcept for service of summons, whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served by mail, 3 days shall be added to the prescribed period.”
Because wife served husband with her attorney-fee statement by mail on July 9, 2010, he had 17 days from the date of service — until July 26, 2010 — to file objections. The
Husband had every reason to expect that he still hаd time to object to wife’s attorney-fee request, so his failure to object before the court entered the judgment does not raise a preservation barrier to challenging the award on appeal. Cf. State v. Johnson,
Regarding timing of the attorney-fee award, we again note that the trial court entered the judgment three days before the deadline for filing objections had passed. We agree with husband that the court erred in doing so. See McIntyre v. Feeman,
Attorney-fee award vacated and remanded; otherwise affirmed.
Notes
The court also ordered husband to pay wife spousal support and a portion of her attorney fees. Because husband had not paid temporary spousal support that the court had previously awarded wife, the court ordered him to pay the new support as a lump sum rather than in monthly payments. In the general judgment, the court deducted the amount of wife’s equalizing payment from thе total amount that husband owed her for spousal support and attorney fees, with the net result that husband ended up owing wife approximately $57,000.
In addition to the property and debts that we describe in the body of this opinion, the court did not take into account personal property that the parties had acquired before they married. It also did not include in its calculation the premarital value of the parties’ marital residenсe, which husband had purchased before the parties married. The court awarded the residence to husband and deducted its premarital value from its current value in calculating the total awards to each party for purposes of equalizing the property division. Neither party has challenged the court’s treatment of the premarital property.
Husband has an adult son, Aaron Fay, who worked for husband’s business. In lieu of a more traditiоnal compensation package, husband covered many of his son’s personal living expenses in addition to paying him a weekly salary.
The judgment does not reference a “HELOC” explicitly, but refers to a “mortgage/equity line of credit/second obligation” using the same partial Wells Fargo account number that wife used when referring to the HELOC in both her statement of assets and liabilities and in the judgment that her attorney drafted. Accordingly, we read that portion of the judgment to refer to the HELOC that is one subject of husband’s appeal.
We use the word “may” advisedly; the record supports the trial court’s apparent reluctance to credit husband’s testimony regarding the balance owed on the HELOC.
Husband also argues that the court erred in awarding half of the equity in the parties’ third real property to wife, even though wife asked that the property be awarded to husband. Courts have the rеsponsibility to distribute property in