*1 May Argued and remanded and submitted reversed November Marriage In the Matter of the McDONNAL, review, Petitioner on McDONNAL, on review. Respondent 28363) (CA 18841, SC *2 McClurg, argued peti- Portland, James W. the cause for Kennedy, King tioner on review. With him on the brief was McClurg, & Portland. argued respon- Gottlieb, Portland,
Ira L. the cause for Ledwidge dent on review. On the brief were Chris P. Ledwidge Ledwidge, Portland. ROBERTS, J. opinion.
Tanzer, J. dissented and filed Campbell, opinion. filed J. dissented and
ROBERTS, J. marriage
In case, this dissolution of wife seeks Appeals finding review of a Court of decision that there warranting no of circumstances an extension of spousal support. We allowed review to examine the effect to given property agreements par- between the incorporated ties which have been into dissolution decrees provide spousal support by and which for future review of the court.
We take the facts from the Court of opinion.
“* * * were married 1959. Two children were born of marriage. steadily Husband has been employed processor. as a data diagnosed wife was having multiple as sclerosis. petition “In her May, for dissolution filed wife alleged part: “ suffering ‘Petitioner is multiple from sclerosis and is * * *’ under the care and treatment of doctors. *3 custody children, “She asked for support of child and monthly spousal support, $600 in equitable addition to an 1976, distribution of the marital estate. In June wife’s neurologist attorney advised wife’s that he could not antici- pate being gainfully employed. her response, In his husband specifically acknowledged wife’s disease. He asked that she be awarded ‘a support reasonable amount of for a reason- * * period able custody of time *.’ He also asked for and a equitable fair and distribution of the marital estate. In 1976, October temporary the trial court custody awarded of the children to husband. Wife was not ordered to contrib- support. ute provided to their The order also that husband pay monthly temporary wife support. $500 ‘pretty
“Wife was ill’ at the time of the dissolution in February, difficulty walking, 1977. She had and she did not anticipate employed. ever being neurologist Wife’s advised attorney unemployable. her that at that time she was The permanent custody decree awarded children to hus- band. Wife was not ordered to contribute toward their support. family sold, residence was ordered and the net proceeds parties. were divided between the From that sale $20,543, savings wife received which in she invested certifi- provided spousal cates. The support decree following a month the year and $400 a month for one $500 years. provided: further The decree two “ alimony may be reviewed ‘The matter February 25, years, that is after expiration of three 1980, expiration prior of three motion filed to the February 25, 1980.’ years, prior that is to awarding appeal the decree “Wife did support. temporary her 1979, 3, neurologist advised her
“On December wife’s essentially attorney her medical condition remained 1980, January, filed her motion to unchanged. In wife affidavit, spousal support. her wife increase continue and personal ‘changes there in alleged that had been [her] requirements’ ‘changes regarding and the minor children of parties.’ alleged She that husband’s financial condition deteriorated, improved had and that her while hers had She her illness and disease had worsened. summarized change of as follows: claimed circumstances “ ‘One, necessity provide sup- the discontinuance port daughter by Secondly, the for the deterio- [husband]. Third, afflicting rating of the disease increase [wife]. expenses living corresponding to her increased [wife’s] potential Lastly, physical decline. the increased financial due the sale the residence and such [husband] yet other to be determined matters [wife].’ (1) hearing, “At showed the modification evidence March, 1977, parties’ daughter home in left husband’s (2) December, married in wife’s medical and was (3) essentially unchanged, wife’s condition had remained monthly expenses in 1977 to $598 $550 had decreased from monthly (4) proceeds from the sale wife’s $13,391 expenses due parties’ has to her home decreased tax, (5) gross capital gains husband’s income $31,344 $28,630 1979. The had from increased a woman had married evidence also showed husband children, $21,120 yearly, $100 with an income of two condominium, $65,000 monthly which and a child equal monthly, to her she rented for amount about $400 expenses testified he payments on the unit. Husband *4 proceeds from sale of the share had used his new payment home parties’ to make a down home $50,500. house for purchased He sold that which he $75,000 purchased the house he and he remarried and when $102,000. He esti- present living in for his wife are now $125,000. present of that house to mated the value
By reinvesting proceeds parties’ from the sale of the residence, home another paying capital he avoided gains tax on that sale.
“The trial court stated:
“
* * *
‘Quite frankly,
you
it is a close case.
When
read
reports,
changed,
these
not all that much has
and even the
testimony
petitioner’s
strong.
is not all that
“ * *
preponderance
evidence,
rule is a
of the
[T]he
slight
outweighing
opposed
which is ever so
and
to that
preponderance
I
it. would find
of the evidence that
change
produced by
there has been a
of circumstances
exhibits,
evidence both
the form of written
as well as the
therefore,
testimony
petitioner,
I
going
of the
am
spousal support,
permanent
continue
it will be on a
basis,
period
rather than for a limited
of time. On that
question, I
don’t think there is
that her
doubt but
going
permanent
condition is
to be of a
nature.’
“The trial court based its
there
conclusion that
had been a
finding
of circumstances on the court’s
of a
physical
thereupon
in wife’s
condition. The trial court
pay spousal
modified the decree and ordered husband to
monthly
permanent
App
$500
on a
basis.” 54 Or
296, 298-301,
(Footnotes omitted.)
The Court of reversed correctly “the trial concluded stating reviewability in the decree was surplusage,” App at that wife had finding showing that there has “failed to sustain her burden of unanticipated change in the circum- been substantial and entry since the of the decree stances App 1977.” 54 Or at 302-03. evidence of a there was not sufficient agree
We therefore, question, change of circumstance. substantial of dissolution may modify a trial court decree is whether parties, incorpo- to an give so as to effect support for spousal that an award of rated into require- may be reviewed without period a fixed of time requires This circumstances. changed ment of a enforceability private agree- of the general consideration application and the parties to a dissolution ments between of such rule to modification “changed circumstances” agreements.
777 recognize fails Appeals opinion The Court of to specifically The decree significant provision in the decree. of agreement states “that oral hereby and approved approved and the same is should be language coupled of decree.” It with part made a is that alimony may matter of be reviewed “[T]he *” * * is the years at the of three expiration the court pivotal of this case. point 107.105(l)(c) provides:
ORS “(1) grants decree of the court annulment Whenever power it separation, has marriage of or of dissolution or as follows: further to decree
“(c) support party, gross or in instal- For the of both, money ments, period such of amount of for or such party to may equitable the other just and for time as it may approve, ratify The and decree volun- court contribute. providing for agreements contribu- tary property settlement party, support party. requested If either tion to the findings set in its decree the court shall make and forth support which its award or denial of fact order, con- the court shall making such based. following matters: sider the
“(A) marriage; The of the duration “(B) parties; The ages of conditions;
“(C) Their health and “(D) earning capacities; experience Their work and conditions, “(E) prop- Their resources and financial erty rights; custody relating
“(F) provisions The decree to parties; minor children of “(G) dependency health and conditions ages, them; parties, or either the children maintenance,
“(H) retraining or educa- The need for employable suitable spouse enable the become tion to objectives; spouse pursue career work or enable and rele- shall deem
“(I) the court Such matters as other vant.” separate methods provides two
This
statute
support.
spousal
the amount
duration
establishing
The parties may enter
property
into a
settlement agreement
providing
spousal
support which the
may approve
court
ratify by
incorporating
into the
or the court
may itself determine
appropriate
amount and duration
spousal
support based on the
presented.
evidence
In the
case,
second
apply
shall
the factors set out in the
A
statute.
required
is not
accept
agreement
between the parties,
Unander,
Unander v.
102, 107,
(1973);
There are very good reasons courts to allow accept agreements at face value without the requirement that evidence be taken in an attempt to “match-up” agreement provisions with the statutory First, factors. enactment of the so-called “no fault” divorce law addressed in part legislative concern with the growing number of divorce cases and the excessive use of court time in litigating cases under the then existing provisions. fault It was thought that if fault were not in litiga- issue much tion could be addition, avoided. In the desirability of remov- ing divorce proceedings from the adversarial process was often expressed. It anticipated non-adversarial, that a procedure “no fault” would encourage parties to settle their disputes as amicably possible. as Hearings House Bill 1239 before the House Judiciary Committee, February 17, 1971 and Judiciary Committee, Senate April 5, These 1971. objectives, two litigation decreased dispute and resolution 1 Bach, property In the court agreement by modified a entered into parties incorporating adjusted before property it into the decree. The court division in multiple husband’s favor because he suffered from sclerosis and would employment. be unable to maintain parties, divorcing initiation of the at the agreement through and proposed property when effectively advanced are most incorpo- by the court and accepted are support agreements requirement without a dissolution decree rated into the evidence. presentation into by incorporated the court and approved Once are to be by parties into entered agreements public policy. enforced as a matter public policy requires persons that “It is axiomatic competent understanding shall have age full contracts, their liberty contracting, and that utmost freely voluntarily, held shall be when entered into justice; and it is and shall be enforced courts of sacred only public policy overpowering rule of when some other intervenes, illegal, unfair or rendering agreements such Johnson, 379, Eldridge v. they be enforced. will not *."* Feves, P2d 251. Feves 159-160, bear our affirmance of a
Additional considerations divorcing policy enforceability agreements between where a has been parties. cases agreement, evidentiary hear- incorporated into the decree in lieu determination ing factual only equities
itself is the measure of the between court’s dispute their should parties. parties’ own resolution of In all cases of dissolution the great weight. be accorded equity full ORS 107.405. Where powers. court exercises litigate disputes their foregone opportunity have *7 their agreement and have chosen instead to enter into an Inequity may agreement presumed. reliance on the can be of less than full enforce- adopts policy result if this court mutually agreed upon property support agree- ment of ments. property that settlement suggest
We do not preclude far spousal support may go for so as providing modify support even where statutory power the court’s Prime, supra, Prime v. would changed circumstances exist. However, short of provision. enforcement of such a disallow recognize the court we statutory powers conflict with the to the give effect responsibility the court’s to discover settle- incorporated reflected in the parties intent of the as agreement. ment Company
In Prudential Insurance v. Weatherford, (1980), P2d App ambiguity 49 Or existed as parties to the intent of the for life providing insurance in the property incorporated benefits settlement into the decree. It was that “in acknowledged construing effect contract, property agreements, settlement as with inquiry is directed to the ascertainment intent of Armstrong, 839. Waterman 49 Or at parties.” App (1981), construed disputed paragraph incorporated property settlement payment for of medical agreement providing benefits for one of the children. A determination of the intent of the parties by was reached consideration of “the circumstances made, testimony under which agreement] was [the parties, the draftsman and the and the entire instrument.” 558. The preceding provisions cases demonstrate that property interpreted by settlement are courts Questions like relating other contract. to the construc tion, operation, property and effect of agree governed, general, ments between a husband and wife are by provisions applicable the rules and in other contract in all disputes, depends upon cases. As contract resolution the intent of the as evidenced language document, or, exists, by where ambiguity extrinsic evidence. 41.740. ORS of the decree we are concerned with provided spousal support
here that wife was to receive for only years with the added the court three time, at the support would review the end of that and it provided support that husband would be obligated pay only years reviewing obligation for three with the court period. party appealed. at the end of the Neither Wife did year the three limitation and husband did not appeal appeal jurisdiction the retention of to review support. dispute Husband informs us that as to day on the support only finally duration was resolved It that wife have accepted trial. seems evident would not only years reviewability provi three without sion; similarly, likely willing it seems that husband was in return for his accept reviewability provision obliga only pay support tion to a limited time.
781
reviewability provision
that the
Husband contends
merely
language of
107.135
ORS
states the
of the decree
Warrington v.
providing
He relies
for modification.
(1938)
Warrington,
80,
and Prime
77,
Wife’s affidavit of the modification motion states that original
“in accordancewith the wishes of the Court Dissolution, Decree of review Court should the wife’s support circumstancesand continue her significant becauseof support changeof circumstancessuch should increased.” understanding
This the decree that the court to review the indicates that was wife’s required
no for circumstances was
support and continue it at the support set in decree. In amount her memorandum in petition presents review, her wife issues of two continuation increase as distinct. She contends that years alimony provisions after three were the decree physical reviewed determine to be were such that if wife’s condition support continued; should be but in order already be increased the level estab- above lished, it was incumbent wife to show a substantial Grove, 341, Grove circumstances. 280 Or 477, 769, P2d P2d 1320 The modified disagreement thus are in as to the effect language in the decree. question parties, is whether factual merely
inserting meant into the already jurisdiction as it exists of the court state the statute, or they whether provide meant an authority not already but existing within the powers. court’s As was Bakke, stated Bakke v. App (1977), “assuming that here the court at entry the time of *9 gave thought decree to the issue and adopt decided to parties’ the language, we assume that it phrase used the * * * advisedly and with intent to give it.” In meaning to the present case, it was not necessary to state the court’s authority modify the alimony any time, award at since this authority statutory. is In the any absence of in the decree relating review of the support provisions it proper would be to apply ORS 107.135 and the changed any circumstances rule to modification and to assume that if parties the considered potential the for modification this they is what However, intended. light in specific provision, review we are not convinced that this is what the parties the or intended this case.
Though we do not have the dissolution court record us, before we believe the language of the decree is ambigu ous. At the remarked, modification the hearing judge
“It’s kind surprising to me that the would agree that handicapped burden would be person [spousal support] to continue rather than unhandicapped person to terminate it.” is, fact, It surprising so that we are reluctant to read the decree in that manner. We conclude that pay spousal support for years three could depen- have been dent upon that the court could review the support award at the end of case, time. If that is the necessary is for us to consider whether under those circum- stances the court’s decision at the time of the modification hearing was to the subject changed circumstances rule. 107.135(l)(a) provides:
ORS “(1) power The court has the at time after a marriage separa- decree of annulment or dissolution of or of granted, upon party tion is the motion of either and after party provided service of notice on the other the manner summons, law for service of a to: “(a) aside, modify Set alter or so much of the decree as * * * * * may provide party of a power granting statute, while the court the to set This modify support provisions aside, alter of decree or specifically require dissolution, not time after does showing changed law, It circumstances. is a rule case statutory party seeking law, that the modification bears burden a substantial in cir- original supra; Prime, cumstances since the decree. Prime v. supra. Grove, The rule become well Grove has so thirty years ago established that this court said almost Feves, had in this Feves it supra, “become hornbook law state.” purpose 198 at 159. rule has Or been said relitigation to be the of matters avoidance settled Clark, final decree. H. Law Domestic Relations However, the Court of has noted that the changed circumstances rule statutory judge-made jurisdictional.
“is neither
nor
It is a
exceptions
rule and
we
as such
are free to fashion
or to
requirements
appropriate
relax its
situations.
See
Deffenbaugh
Deffenbaugh,
P2d
*10
(1979);
399,
Perley
Perley,
(1960).”
220 Or
Deffenbaugh
court,
is
in
the trial
a case
which
keep
entering
the
whether the
a dissolution
desired to
issue
custody open
to
for several months
determine
remarriage.
go through
plans
her
mother would
The decree
the
tody
with
custody
granted temporary
to
of the children
permanent
intending
husband,
to
cus-
award
specified
If
to the mother if
remarried
a
date.
she
said,
not
occur,
court
wife would
that event were to
change
obtain
to
other
of circumstances to
have
show
hearing
subsequent
custody.
permanent
At a
intended
temporary.”
the trial court
to be
In we held that where the trial court had properly provided permission might in its decree that to wife to granted move to another state and take children husband, necessary with her after due notice to it was not precedent to show a of circumstances as a condition an order the decree such making modifying to authorize in Eusterman held that move. The Court of requirement proof changed inapplica- circumstances is the question modifying ble to child so as to extend it to children over the age regularly of 18 who are attending school while the children are still so as not young “yet to be in or college.” App threshold of 41 Or at 727. Appeals, reversing Court of the trial court Slauson, in Slauson and case, opinion relied its 177, (1977)
Or
P2d
App
which it invalidated a
provision in a
permitting
dissolution decree
the wife to
a review
request
alimony
time without a
circumstances,
of a substantial
finding such
legal authority.”
App
“without
29 Or
at 183.2
Slauson cited for this
in Watson v.
proposition
opinions
our
Watson,
and Hurner v.
(1958)
Here we are faced with Slauson; There was no Slauson. could provided initiative in the decree that wife
its own
at
provisions
time without
request
review of
of
The Court
necessity
change
of
circumstances.
*
“* *
said,
high degree
seek a
Appeals
the court should
their
future with
plan
can
finality
so
march
certainty
encouraged
repeatedly
and are not
to
some
case,
present
to
at 183. In the
App
the courthouse.”
record,
reviewability
is not
from the
while it
clear
originated
appears
of the court’s decree
have
did,
parties.
significant
If it
is a
difference.
with
has
recognized
This court has
and the Court
dissimilarity
provisions
between
applied a
in treatment
agreements
are
property
support
which
by the
and those which arise at initiation
imposed
356;
Grove,
12a, v.
note
parties.
supra,
Grove
Weseman,
(1981);
App
Or
Because wife suffers or remis- unpredictability progression known for its ease sion, may parties agreed postpone be that until a future time spousal support permanent decision on diag- might permanently be more when wife’s condition unfair, as it was If that is the case it would nosed. for per- the need supra, for wife to establish Deffenbaugh, disability having laboring under the manent show a in circumstances. way dilute to in decision not intend this
We do have rule. We circumstance the importance courts reasons for significant there are pointed out that dissolution; ato by parties into entered accept agreements obligated are not courts out that trial pointed have also we *12 accept agreements equity and that dictates that courts appear reject agreements Only should, fact, in that unfair. extraordinary justify under the most circumstances which departure from the of circumstance rule should a incorporates court enter a decree that future review. A court for provide never should on its own for a in review the future. The use of such cannot be a duty substitute for the the of court to at examine the proceeding any agreement dissolution of the fairness parties, through application between the either of the stat- utory 107.105(l)(c) by factors set forth in ORS or exercise independent judgment light parties’ of its in circum- stances at that time. proceeded
In the trial court wife on the basis of spousal sup- One, two claims: that the court could extend port changed without a of circumstances because provisions had, the fact, the two, that there in thought
been circumstances. The court it precluded considering from the claim first and decided changed case the basis of circumstances. Because the opportunity trial court had has not address first purpose. inquiry claim case is remanded for that property on remand is whether the oral settlement included provision post-decree by review court. If the arose at then initiation of the it only way question should be made effective. The can be by parties. resolved is a determination of the intent of the proper interpretation requiring The submission of evidence extrinsic to the anis issue fact
agreement bearing parties. on the intent of the For that reason we remand to proceedings. the trial court for further trial for fur- Reversed remanded to the party. proceedings. ther Costs to neither dissenting. TANZER, J., opinion in I for the stated dissent reasons general Additionally, Appeals. offer I these the Court of comments. law,
If ever a hard case made bad this one has. The sympathy plight gap court’s wife’s leads to carve supported change-of-circumstances rule, neither into the Any practitioner or persuasive reason. experience nor recognize quali- as unwise this judge relations will domestic is a experience which rooted in rule is fication fundament, law and else- Oregon domestic relations concluding take face avowal where. I value I unique, only unique situations. So holding applicable is McDonnal will be cited McDonnal and expect, or only obligatory preceded cases footnotes future “cf” “but see.” *13 dissent, emphasize I wish to
Even in For this provisions. disfavors reliance on review majority defer to allow and trial courts to decision disputes present in order to obtain a difficult is of adjudica- antithetical to the entire notion majority’s solace holding tion. I take small in the a only apply exceptional will such situations. A case can be made that wife’s health has deterio- (rather than contrary hopes rated since the however, so, trial Even expectation) judge. reasonable nil, earning her has not capacity, being deteriorated. and it no argument persuasive a is not affords burden into modify basis to husband’s decreed transitional necessarily inequitable require is not lifelong one. It surely her It support. wife to look to other resources for is a universally recognized, with tamper wiser course than sound rule of law.
CAMPBELL, J., dissenting. “anew my opinion
I It is trial dissent. provided by as 19.125 show that there record” ORS would since in the wife’s circumstances substantial Therefore I would entry of the dissolution decree. and affirm the trial court reverse the Court necessary is reach the questions a remand. It without majority opinion. decided