936 P.2d 367 | Or. Ct. App. | 1997
Wife appeals from a modification judgment that reduced the amount and duration of her spousal support award.
The parties were married for 14 years and had one child. At the time of their marital dissolution in 1992, husband was self-employed as an orthopedic surgeon. His gross income was $18,000 per month, based on a 50-hour work week. Wife was unemployed as a result of significant health problems. The trial court awarded wife spousal support in the amount of $4,500 per month for five years and $3,000 per month thereafter.
In 1994, wife filed two separate motions seeking contempt orders against husband for delinquency in the payment of spousal support. Husband moved to modify the support obligation. At a consolidated hearing on the parties’ motions, husband presented evidence that he is working 40 percent more hours to generate the same income he was making at the time of the dissolution. He testified that the increased hours are causing him extreme stress, depression, increased blood pressure and chest pain, and that he therefore needs to decrease his work hours. Husband also sought a reduction in spousal support based on “a need to adjust for failed investments.”
The court also ruled in favor of wife on both of her contempt motions. It found that husband had, “on more than one occasion, put other expenditures before payment of spousal support including but not limited to travel, home remodeling, Blazer tickets and luxury car leases.” The court continued:
“I find [husband] in contempt of court on both motions. As a remedial sanction, the court will award a portion or all attorney fees incurred in the pursuit of contempt proceedings necessary to obtain that support.”
On appeal, wife contends that husband did not establish a “substantial change in economic circumstances” sufficient to warrant modification of his spousal support obligation. ORS 107.135(2)(a). She points to the fact that husband has not in fact reduced his earnings and is “still pursuing a lavish lifestyle.” He has remarried, purchased a home for
Retirement benefits that accrue during marriage are assets that are subject to division as marital property. Colling and Colling, 139 Or App 16, 20-22, 910 P2d 1165, rev den 324 Or 78 (1996); Bogh and Bogh, 64 Or App 49, 53, 666 P2d 1375 (1983); ORS 107.105(1)(f) (“A retirement plan or pension or an interest therein shall be considered as property.”). In the present case, that particular asset was awarded to husband. Property divisions are not subject to modification, Pope and Pope, 301 Or 42, 45, 718 P2d 735 (1986); Williams and Williams, 134 Or App 8, 11, 894 P2d 523 (1995), unless the property award was based on the enhanced earning capacity statute, ORS 107.135(1)(e). Just as wife could not return to the trial court and seek increased spousal support on the ground that the assets she received in the marital property division have not increased in value to the extent that she had anticipated, husband cannot obtain a reduction in his spousal support obligation because his pension plan has not increased in value to the extent that he anticipated.
On de novo review, we find no change in husband’s economic circumstances that warrants modification of his spousal support obligation. We find that he has not reduced his hours, his receipts have not decreased, and he has not attempted to find out whether, by making other changes, he could work fewer hours and retain his current earning capacity. In sum, husband’s intention to work fewer hours is little more than a possibility,
On cross-appeal, husband challenges the reasonableness of the amount of the trial court’s award of attorney fees to wife as the prevailing party in the contempt proceeding. That amount represents half of what wife requested with
On appeal, reversed and remanded for reinstatement of original spousal support award of $4,500 per month for five years and $3,000 per month thereafter; affirmed on cross-appeal. Costs to wife on appeal; no costs to either party on cross-appeal.
Neither party appealed the modified award of child support.
In the property division, husband was awarded $372,544 of the marital estate and wife was awarded $217,546 plus an equalizing judgment of $77,500.
During the marriage, husband made a substantial investment in a golf course, which is the principal asset of his retirement plan. Upon dissolution, the retirement assets were awarded to husband; the family home and an equalizing judgment were awarded to wife. At the modification proceeding, husband testified that since the marital dissolution the golf course has lost significant value and that that situation has required increased contributions to his retirement plan and affected his ability to pay spousal support.
Husband also stated that wife’s health problems have improved to the point that she could become employed but that she has only “seen fit to do volunteer
As a result of that modification, which reduced wife’s income, the trial court sua sponte increased husband’s child support obligation. That award is not at issue on appeal.
Were it otherwise, market fluctuations affecting the value of 40 IK plans would always be a change in circumstances.
Husband testified:
“I’ve had to go and talk to * * * a friend of mine who is a psychiatrist and has been helping me with stress management for years. And he says, you’ve got to slow down. And I’ve got to listen to him I guess.”