Matter of Marriage of Tsukamaki

January judgment percent Argued to award wife 75 and submitted modified accounts; disputed percent and husband 25 of funds in Paine Webber otherwise May 18, 2005 affirmed In Matter of the Marriage TSUKAMAKI, H.

Donald Respondent, TSUKAMAKI, Diane Appellant.

DR0204409; A122400

578-a appellant. argued himWith cause for Mark Johnson & Lechman-Su PC. Renshaw the briefs was Johnson on respondent. Cowley argued Craig With cause for M. Howe, bim & P.C. Gevurtz, Menashe, Larson on the brief was Armstrong, Presiding Judge, Brewer, Chief Before Judge.* Judge, Landau,

ARMSTRONG, P. J. concurring.

Brewer, J.,C.

* Ceniceros, Landau, J., S. J. vice

578-b

ARMSTRONG, P. J. appeals judgment. from a Wife dissolution She (cid:127) assigns the trial error to court’s division of two Paine 19.415(3) (2001), review, On de Webber accounts. we novo ORS modify judgment. the trial court’s parties

The were married in 1972 and have no chil- They separated dren. in 2001, and husband filed for dissolu- pharmacist, time, tion in 2002. At that husband was higher Throughout marriage, wife worked in education. parties both worked outside the home.

Through frugality, couple has accumulated Among assets in excess of million. those assets are the $1.5 Paine accounts, Webber which $454,758 were worth at the jointly time of trial and were titled the names of husband proceeds wife. funds those accounts consist ofthe gifts from the sale of certain stocks and cash that wife parents received from her parents between 1984 and 2001. Wife’s significant percentage had owned a of the shares in (Iseri). Company part Thos. Iseri Produce As of their estate plan, parents began gifts wife’s in 1984 to make annual Although parents Iseri stock to wife and her brother. her had gifts the stock certificates for the to wife issued in wife’s they physical possession name, retained of the stock certifi- gave photocopies cates and shareholder 1995, of them. In another

purchased parents, the Iseri interests of wife’s wife, and her brother. The sale of the stock in wife’s name generated proceeds, deposited $431,578 in cash which were jointly into an account at Paine Webber both husband and wife. At some titled in the names of

point between 1995 and the part proceeds trial, wife transferred of those to accounts with brokerages and then transferred them back to Paine separate Webber. Paine Webber established a account for the original separate, transferred funds. The account and the transferred-funds account constitute the two Paine Webber appeal. accounts at issue in this part

Between 1996 and also as of their estate plan, parents gave gifts wife several cash in the gift gifts amount of the federal deposited tax exclusion. Those were many in the Paine Webber accounts. On 580 par- they presented gift wife, wife’s a cash to

occasions when gift. presented cash husband with a smaller ents also one-day court concluded that trial, After a the trial and that wife accounts were marital assets the Paine Webber statutory presumption under ORS had not rebutted 107.105(l)(f) equal of contribution toward Consequently, ordered in the dis- the trial court the assets.1 judgment divided Paine accounts be that the Webber solution equally parties. between appeal, trial court erred in asserts that the

On wife disposition Wife first Paine Webber accounts. its gifts,” they argues funds that, were “conditional because subject marital assets accounts are not in the Paine Webber Alternatively, argues power. wife to the court’s distribution (1) nonethe- assets, marital then she that, if the accounts are less rebutted

(2) joint commingled with funds were not so that the require just proper parties that it is assets of the We address each with husband. she share them arguments turn. wife’s parents pur although argues that, her

First, wife purposes, ported gifts tax and cash to her for make of stock Specifically, gifts. parents in the retained an interest her parents agreement argues her to return an with that she had they proceeds to them if ever or the cash of the stock needed them. parents that wife’s father testified trial,

At wife’s keep understanding” that wife would “mutual and wife had a parents money it for needed in case her “available” expenses, testified father further health care. Wife’s such as expressing although no written document that, there was verbally “[i]t agreement, understood, parties’ purported was testimony stated similar, and she less.” Wife’s more or par- purposes if her the funds for her own could use that she Although permission gave she on their deaths. her ents that her contends such, wife in effect it as does not articulate (2001) judgment. its the trial court entered was in effect when 107.105 ORS 576, amend ch 109. Those § Laws in 2003. Or That was amended statute analysis in this case. affect the ments do not parents ofwhich she trust, of an inter vivos were settlors contingent beneficiary parents and her was the trustee and present were the beneficiaries. testimony supports argues also

Wife that husband’s theory. he that the her Husband testified that understood funds in the Paine Webber accounts would be available to they help. parents Husband, if on the wife’s needed financial argues merely testifying hand, that he was about a legal obligation help parents moral than wife’s in a rather time financial need. testified at trial that he Husband financially they helped parents if had would have even given gifts. not the stock and the cash He testified that he that he and wife would had a similar moral believed have obligation provide support parents, to financial to his own given similarly large gifts couple. who had not Fur- to thermore, husband testified that he had never had con- parents gifts. agree versations with wife’s about the We with testimony support husband; his does not a conclusion that to transfers wife established a trust. ruling expressly bench, In a from the the trial court Paine stated that it determined the to be Webber accounts implicitly rejected only Thus, marital assets. the court supporting position testimony evidence own and —her If of her father. the trial court had believed that testi mony, option it would have had that the no but conclude funds in the Paine Webber accounts were not marital assets subject they to division because were held in trust wife for parents. Implicitly, contrary her the court’s conclusion to the necessarily regarding required it to find that the evidence nature of not credible. conditional the transfers was Although exercising review, we are de novo “we defer to the express implied credibility findings.” trial court’s and Tomos (2000) (citing App Tomos, 82, 87, and 165 Or 995 P2d 576 (1998), App 5, 18, 964 P2d 1033 and Short, Short and 155 Or App 576, Patterson, 423, 428, 39 Or 592 P2d Patterson (1979)). the trial rem’d, 286 Or Because testimony supporting wife’s inter court did not credit the theory, neither do we. The transfers of stock vivos trust gifts. completed unconditional, cash to wife were Having concluded that the funds in the Paine * * * “personal property Webber accounts are indeed the 107.105(l)(f), parties,” either or both of ORS we turn to proper disposition. Kunze, their Kunze and 122, applicable (2004), provides analytical P3d 100 framework 107.105(l)(f).2 under ORS 107.105(1) provides, part:

ORS judgment “Whenever the court renders a of marital separation, may pro- annulment, dissolution or the court judgment: vide the * * * * “(f) disposition For the division or other between the parties personal property, both, ofthe real or or either or parties may just proper both ofthe as be in all circum- * * * stances. The court shall considerthe ofa contribution acquisition as a homemakeras a presumption of marital assets. There is a rebuttable spouses both property during have contributed marriage, whether such

jointly separately held.” Because the funds the Paine Webber accounts were acquired during they marriage, marital and, are assets subject presumption such, are rebuttable con- If the tribution. 337 Or at 133. is not regard particular then, asset, rebutted with to a appropriate “just considerations, absence of other and proper” equal division of that asset is an division. Id. at 134. party proved “[w]hen But, a has contributions from the other that a marital asset was spouse, acquired free of * * * ‘just proper’ considerations, to absent other it is separately party award that marital asset overcome the to the who has statutory presumption.” Id. at 135. presumption, party prove by a must a To rebut preponderance disputed of the evidence that marital acquisition an asset’s did not result from (1997), but, Strictly speaking, applied Kunze ORS 107.105 as the noted, subsequent [the] affect Court amendments to ORS 107.105 “do not determining just proper’ analysis significance as to 337 Or at 124 n 1. division of marital under that statute.” spouse spouse. If one can establish from the other Id. at 134. acquired by gift and that the other that the marital asset was spouse acquisition nor was the neither contributed to its statutory presumption object then the intent, of the donative 236, 241, 656 P2d 286 Jenks, is rebutted. Jenks and * * * (“The (1982); may presumption overcome see also id. be by by gift by finding acquired spouse one by spouse. In inheritance, uninfluenced the other such there or other contribution case, has been no economic asset.”). case, In this wife’sfather testified that he and wife’s only gifts mother intended to benefit with their of stock separate times, He that, cash to her. testified at he made gifts simultaneously gifts cash to husband with the to wife. parents gave separate Wife also testified that her husband gifts many cash on occasions. Wife introduced into evidence accompanied gifts letters that in 1992, 1993, 1994, 1996, 1997, 1998, and 2001. The 1996, 1997, 1998, and 2001 letters parents only They are from wife’s and are to addressed wife. all read:

“DearDiane: my please gift you “Enclosedwith this letter find to gift $9,500cash. The is effectiveas ofthe date ofthis letter. gift my gifts years.”

This is consistentwith ofrecent parents’ 1992,1993, and 1994 letters are from the attor- ney and are similar in the later substance to letters. Husband initially gifts testified that he considered the Iseri to be stock gifts solely opposed gifts wife, to both of them. He gifts gifts later testified that he believed the cash to be to both changed position gifts of them and his as to the stock as well. notwithstanding record, The evidence in the hus- fluctuating position object band’s on he an whether was parents, donative intent ofwife’s is sufficient to overcome the the initial husband contributed acquisition of the funds in the Paine accounts. Webber None- theless, the trial court concluded that wife had not rebutted presumption. ruling bench, In its from the the court stated:

584 presumption

“I don’t believe that the of marital contribu- * ** [B]asically, tion has been rebutted in this case. what case, you we have in this and I think if look at the cases out, you really, gifts. two kept up, which have this end with respondent up gift parents You end with a from the case, peti- in that gifts this who then her interest by putting tioner his name on those accounts.” glean statement, that the trial court believed From that that the Paine we commingled accounts had so Webber become parties’ particularly they assets, because were with jointly, longer presump that could no rebut the titled commingling considering tion, in essence of assets be analysis statutory presumption factor whether past, has made the same has been rebutted. this court e.g., App See, Kunze, 606, 618, Or 47 error. Kunze and 181 (2002), Or 92 P3d 100 modified, P3d 489 aff'd (2004); App Horn, 88, 94-95, 57 Van Horn and Van 185 Or (2003); (2002), den, Butler, Butler and P3d 921 rev 335 Or 267 (1999); Rykert App 314, 320-21, 981 P2d 389 160 Or (1997). Rykert, App Thus, 537, 542-43, analysis However, Kunze, understandable. the trial court’s case, the trial court’s decision in this makes clear issued after commingled have with the marital that whether assets been analysis ordinarily in the estate is not a consideration statutory presumption contribution has whether the commingling Rather, at 142 n 12. is a been rebutted. 337 Or analyzing statutory presumption has whether the factor commingling may only pre when an “act of been rebutted identifying spouse’s separate con clude the court from statutory pre reliability to rebut the tribution with sufficient sumption spouses to the have contributed both disputed is con Otherwise, Id. at 138. asset.” stage analysis. “just proper” division sidered at preponderance Here, n of the evidence Id. at 142 12. object parent’s of her donative shows that wife was the sole intent and that husband did not contribute legal gifts. trial court’s con Therefore, we hold that the statutory presumption had not clusion that wife rebutted was error. rebutted, Kunze has been

Once the “just proper” division of all instructs us to determine “[b]ecause property. has she Id. at 145. As marital acquisi- to their did not contribute that husband established [the presumptively receive funds in is entitled to tion, wife accounts] considerations unless other the Paine Webber require “the different identified extent a result.” Id. Kunze integrated separately acquired party asset into a a has which partnership the marital financial affairs of the common through commingling” equitable consideration. as one such 242-43). Surveying (citing our Jenks, 294 Or at Id. at 136 highlighted Supreme factors three of the cases, the Court spouse considered to discern whether a that we have intended for a intended the asset to become a partnership: separate particular remain or asset joint of the marital asset “(1) jointly separately disputedproperty or whether (2) parties held; shared control over the dis- the dis- whether (3) degree upon puted property; puted ofreliance joint property as a asset.” Kunze, 337 Or at 141. Court’s ratification of those three fac- analysis three-step commingling

tors neither establishes a Instead, it nor sets forth an exclusive list of considerations. identifies three many possible out indicia “whether a spouse spouse’s sepa- an intent to retain that demonstrated rately acquired separate property whether, asset as or spouse property instead, that intended for that to become joint property at 142. The of the marital estate.” Id. various are which assets can factors alternative methods become commingled. example, commingling through For can occur joint through through titling, control, reliance on a shared joint e.g., separately See, titled a asset. Albers as (2001) (holding App P3d 430 Albers, 243, 249, 174 Or 23 deposited joint that inherited account were com- funds (holding mingled); Rykert, App that funds at 544 solely commingled name husband had wife’s were because funds); App Becker, control over the 571, Becker and Or (1994) (1993), (holding den, rev 318 Or 60 solely in name and control were that trust interests commingled relied on their existence because husband planning). commingling

retirement But no matter how is explained established, the court commingling “that acts of do not mandate in all cases separately acquired property inclusion Instead, division. which a into the the court evaluate the must extent spouse integrated separately acquired has a asset joint partnership finances of the marital and also any inequity evaluate whether wouldresult fromthe award separate property.” ofthat asset to that added). (emphasis is, 337 Or at 142 That enough; equity disputed itself is not must demand that the spouses. asset be divided between the equitable consideration, Because it an commin- gling nothing proposition. Instead, is not an all or commin- gling along spectrum. particular cases, falls In some asset may commingled ineq- be to such an extent that it would be equally. divide it in manner other than uitable to may commingled cases, an asset be less therefore subject e.g., Taylor split unequal See, to a into shares. Taylor, App 635, 640, 325, 121 Or P2d modi- adh’d to as (1993), App recons, den, on 124 Or rev fied (1994) (awarding 319 Or 626 wife one third of husband’s commingled through reli- inheritance because it was income). ance on it as a source of retirement Here, that hus- there is no evidence the record any particular financial in reliance on band made decisions any there the existence of the Paine Webber accounts. Nor is that he control over the accounts evidence ever exercised undisputed despite being joint Nonetheless, it is their owner. disputed jointly held that title to the marital assets had been they deposited were in the Paine Webber accounts since joint appears title, in and However, 1995. it from Kunze that may enough itself, not to demonstrate that wife be gifts joint property parents’ of the intended her to become properties one of the at issue—the marital estate. property at been owned the wife Germantown Road —had years the dis- Four against before the time she married husband. property, the a loan solution, in order to obtain prop- joint Road interest in the Germantown wife deeded erty Supreme Court concluded that to the husband. action alone did not demonstrate that the wife intended to commingle property the Germantown Road with the finan- couple. cial affairs of the Kunze, 337 Or at 146. Without elab- orating, the court stated that the wife introduced evidence separately “that showed that she had intended to retain her acquired equity separate property.” in that as her likely Id. at 146-47. The court relied on the fact that the wife sep- had maintained the Germantown Road as her years 19-year marriage arate asset for 15 added husband’s name on the title and had

only financing to secure for the husband’s business venture. deposited proceeds

Here, contrast, the cash joint liq- the stock sale in a account as soon as the stock was uidated in Thereafter, 1995. each time she received a cash gift parents, deposited gift joint from her she into a practice account. Wife testified that it was her to title all of jointly practice their assets and that that was “cultural.” She explained “[b]ecause upbringing, that she did so of our * * thought together because I we would be forever Wife’s Supreme “[B]y words echo the Court’s sentiment in Jenks: relationship, couples ordinarily the nature of the marital pledge parts their troth for better or worse until death them accordingly.” and their financial affairs are conducted explained at legal 242. The Court in Kunze that the import musing marriage ofits about that, Jenks is “when a separately acquired joint has treated a asset as a partnership, parties’ asset of the marital then the shared during marriage financial decisions have been made in reliance on that asset without consideration of whether it separately jointly acquired.” 337 Or at 140. We con- joint titling clude that wife’s of the Paine Webber accounts inception from their demonstrates her intent to make them joint assets of the marital estate. previously

As discussed, however, that conclusion automatically does not lead to the result that the trial court equal reached, i.e., an division of the Paine Webber accounts parties. between the The facts ofthis case lead us to conclude although that, wife demonstrated an intent to make the joint Paine Webber accounts assets of the estate, marital the complete of the accounts was not so that an 588 preserved

equal appropriate. largely sep- the is Wife division gift in the arate of the funds Paine Webber existence only significant exception preservation to accounts. The pay- deposited approximately $2,000 her from was she in in order toward checks the Paine Webber accounts to save bought purchase ultimately car, of a which she with the jointly Paine funds from the Webber accounts titled Although her names.3 that transaction both and husband’s that the Paine Webber accounts were bolsters our conclusion point commingled sufficiently the with the marital estate to inequitable to retain it allow wife to the that accounts in their would be entirety, de the trans- the minimis nature of majority light action, in the that the vast of the funds fact kept separate inception and intact from was account, the conclusion that husband should does not lead to equal an receive share. although

Furthermore, conclude that wife is we obligation legal no to return the in the Paine under funds parents they them, if need we are not to her Webber accounts obligation may unsympathetic feel that she to do moral testimony reason she Her indicates that that so. Notwithstanding separately. hus- accounts maintained the obligation suggestion felt towards that he too a moral band’s following reality parents, recognize this that, we likely accounts dissolution, wife’s share of Paine Webber emergency primary, if funds sole, not the source will be parents. court’s Thus, we hold that trial for her just not the Paine Webber accounts was division of proper conclude, for the reasons all the circumstances. We just proper division ofthose accounts above, that stated percent ofthe funds in those accounts for wife to receive 75 percent 25 funds. and for husband receive $25,000, percent, gift approximately just over 5 funds Wife withdrew purchase We note that the vehicle. also in the Paine Webber accounts remedy problem: flow Webber accounts to a cash wife used funds from Paine employer her reimbursed on her business credit card before The balance was due employer expenses. deposited the from her her Wife reimbursement her for replace also withdrew the funds she had withdrawn. Wife Webber account to Paine attorney proceeding. $4,415 pay the dissolution Nei of her fees related to some attorney the result in this nor fee transaction affects ther the 1997 transaction case. percent

Judgment wife 75 and modified award disputed percent Paine Webber husband 25 of funds accounts; otherwise affirmed. concurring.

BREWER, J.,C. majority job a faithful in this case of has done template property imposed by applying Supreme (2004). the the for division Kunze, Court Kunze and separately express my regarding I views two write (1) separately held issues: whether wife’s transfer of her proceeds parties’jointly stock and other funds into owned acquisition prop- Paine Webber accounts resulted of erty during marriage presump- to which rebuttable 107.105(l)(f) equal tion of out in contribution set ORS (2) applies, presumption if so, whether wife rebutted the equally acquisitions. that husband contributed to those properly Court reminded legislative underlying bench and that bar “the intent ORS 107.105(l)(f) property is the formulation of a division at dis- in all the circumstances.” 337 just proper solution that is (internal omitted). quotation Or at 132 explained marks The court empow- that, directive, to achieve its “the statute personal property ers the court to distribute real or parties [.]” either or both hold at the time of dissolution 107.105(l)(f), party Id. at 133. Under if a ORS establishes that the asset at issue is a marital asset—that the asset was acquired during marriage apply the court must —“then * * presumption equal the rebuttable of *.” legislative Kunze, 337 Or at 134. The intent the stat- behind utory presumption recognizes “[in of] that, the absence evi- contrary, spouse’s during marriage dence to the each efforts equally to, of, contribute and are made for the benefit regardless estate, marital of the nature of those efforts or property my how the is held.” Id. at 134. The initial focus of implicit assumption concept concern is the court’s commingling that the only and, indeed, is unrelated comes into to— play question after —the determination whether the asset in acquired during marriage subject and, therefore, is presumption equal to the rebuttable contribution. Id. at (holding pertinent 137-43 is to the deter- statutory presumption has been minations whether property). just proper division of is a rebutted and what assumption explained the division of below, that drives As brokerage parties’joint case. accounts this presumption contribution is The rebuttable 107.105(l)(f) (2001) provides that of statute. ORS a creature spouses “[t]here have that both is a rebuttable during contributed separately jointly marriage, such whether point beginning should be in the case, In this held.” property pertinent acquisition identifying of the the task of making marriage. during determination, we must that the begin v. Bureau the in context. PGE the text of statute with of 606, 610-12, P2d 1143 Industries, Or to 859 317 Labor and (1993). usage give of common words We are admonished meaning.” ordinary “plain, Id. at 611. “As natural, and their things, among [a] part considers, other context, court a of statutes, provisions related statute, the other of same other Court’s] [the deci- prior statute, the and versions of interpreting Motors Jones v. General the statute.” sions Corp., (1997). 411, 939 P2d 608 404, 325 Or presumption of The rebuttable 107.105(l)(e), ORS statute, then numbered added to the Supreme Court first con The 1977, ch 847. in 1977. Or Laws property “acquisition meaning phrase of the sidered Engle, Engle during marriage” 207, 214-15, 293 Or in (1982). term “marital that the The court noted 107.105(l)(e) (1977) that in defined ORS assets” was not marriage during property received referred to the statute namely, acquisition ways, marital assets” and of as “the two marriage.” during property The acquisition of as “the explained: court property question may “Although whether there be some gift by way by spouse during marriage of

received (a phrase either with to be included is intended inheritance case), question there is no decidein this and donot we need not which phrases include intended to doubt that both during spouses acquired property oneorboth most the recognized marriage. fact that The amendment cooking nonearning spouses home,dothe maintain the who cleaning children, also contribute and raise way. tangible, property acquisition substantial in a of result was the creation of the rebuttable of an Thus, equal contribution. when acquired with monies earned aby working spouse, whether title is taken name, name, the husband’s names, the wife’s or in both treated, would be at least presumptively, as having resulted from equal efforts of spouses.” (footnote omitted). Engle, 293 Or at The court next considered the meaning phrase “acquisition of property Pierson and during marriage” Pierson, (1982). 121, 653 P2d 1258 In that case, the wife received an inheritance after the parties separated but before an action to dissolve their marriage was filed. The husband argued the inheritance should be considered a marital asset subject to the statutory The court presumption. agreed, reasoning “the reference to ‘acquisition of prop- erty during the marriage’ indicates that it includes neither assets brought into the marriage by either nor assets acquired by them after dissolution.” Id.

The court most recently considered the meaning the phrase “acquisition property during the marriage” Massee, Massee and (1999). 328 Or 195, 206-07, 970 P2d 1203 Following the PGE the template, court observed that the “ ” “ dictionary definition of is ‘acquisition’ ‘the act or action of ” Id. at 206 (quoting Webster’s Third New Int’l acquiring.’ Dictionary 19 1993)). ed (unabridged on Relying that defini tion, the court concluded that the appreciation the during of marriage assets brought and marriage separately held by the husband constituted property “acquired” during the and, marriage thus, was a marital asset to which the pre sumption applied. Massee, 328 Or at 206.

Neither the legislative history of the 1977 amend- ment nor that the court said in Engle or Pierson anything speaks to meaningfully the at problem However, hand. Massee may be instructive. By that concluding the mere pas- sive appreciation in value of property brought into the mar- and riage separately held by one spouse constitutes property acquired during the the marriage, court indicated that the phrase “acquisition of property during the of marriage” is broad It applicability. therefore is difficult to conceive how a spouse property of an interest in from one

deliberate transfer both, not another, from one to would also be to or acquired during marriage.1 regarded property the as Never- despite holding expansiveness Massee, the in theless, the of implicitly in that the Court Kunze concluded an interspousal property acqui- does not in an transfer of result during marriage purposes property of sition of the for ORS 107.105(l)(f) (2001). By terms, its acquiring statute, however, The is not so limited. statutory presumption applies to act of the the marriage, regardless property during the of whether the scope jointly separately pre- Thus, is held. the asset (1) ways: apply sumption is it can unrestricted two salient during acquisitions the to successive marriage, of the same (2) consequence no the form it is of whether separate. acquisition joint or is correctly applies presumption majority acquisitions to by gift from initial of stock and cash her

parents pre- concludes, I that would, wife rebutted acquisi- sumption that husband contributed to those by Kunze, However, it constrained tions. because is phase acquisitions majority not address the second does proceeds deposited that occurred when wife stock parties’joint during funds accounts mar- into compelled by precedent riage. although That that omission, statutory with the text. It court, binds this is inconsistent unnecessarily complicates the role that also property. plays in the of marital division 1Admittedly, way to Massee with Kunze would hold that an abstract reconcile acquisition property, statutory presumption applies only the initial not to fact, necessary, unstated, spouses. that is the but a successive transfer between (stating holding implication Or at 144 of the court’s Kunze. See statutory inapplicable “premarital equity” conveyed during marriage). Viewed accord had husband as co-owner marriage premarital during ingly, appreciation asset under once the distinguished “acquisition” property, could be its initial stood to constitute discrete spouse’s spouse of an in the other one interest from successive below, though, equity’ property. explained that distinction lacks “premarital As statute; ignores that the transfer of support it the fact in text and context acquisition joint ownership property an in results in the of undivided interest an including premarital equity property, of transferor in the entire interest spouse. certain com- Kunze, the Court treated

In. property. mingled property form of See as a distinct (“[A]cts commingling may operate to convert 337 Or at 139 of joint separately acquired of the marital a asset into a asset added.)). partnership.” (Emphasis recognizing that dis- complex form, tinct the court to a calculus for subscribed determining traced to its the extent to which an asset is to be provisionally ownership in and, thus, included former property Id. at 142. That calculus excluded from division. (1) below, could be useful in two other contexts: as discussed determining vantage point in presumption from a communal whether the rebutted, and of contribution has been (2) determining, stage analysis, at the final of whether equitable compel property considerations the division of fact, otherwise would be excluded from consideration. In calculus may provide practical addressing the sole means for respect property, the effect furnishings, to with such as like, and the fre-

artwork whose quently is undocumented. congruence

However, there is a between commin- gling interspousal property during and the formal transfer of marriage convey- that the court overlooked in Kunze. The property legal ance of an interest real has a well-defined 93.850(2)(a)(a e.g., warranty See, effect. ORS deed “shall con- vey the entire interest at the date of described purports convey”).Likewise, the deed which the deed joint ownership types property, of other such bank routinely accounts, vehicles, investment lished written as well as is estab- agreement respectively. e.g., See, title, (“Any may multiple-party paid, ORS 708A.485 account be on any request, parties. A one or more of the financial insti- required inquire tution as to the source of shall not be deposit multiple-party account, funds received for to a or to inquire proposed application as to the sum withdrawn establishing purposes net contribu- account, from an tions.”); for (describing “prima ownership facie” ORS 803.010 vehicle). of title to motor effect of certificate important this state of affairs. There is an reason for including people everyday life, married under- world, In the ownership of an interest stand that the formal transfer why legally significant it event. That is makes perfect legislature legally sig- sense that the would treat as interspousal nificant the formal transfer and of by attaching property during marriage pre- the a rebuttable statutory sumption to it. Because the of contribution clearly legislative intent, text that there is no reason evinces formally commingled property regard form of as a distinct joint necessitating separate property treatment determin- ing property and whether the is a marital asset its divisibil- ity. complicated enough The business of division is artificially restricting scope property the to which without a simplifying presumption applies. simplification And is statutory ordinarily presumption function that the serves quite helps well. It avoid the ad hoc resolution of dissolution disputes by bringing consistency predicta- a measure of and bility application to the of the law in an area where fact- matching inherently treacherous. proceeds short, the stock and other funds because joint

deposited acquired by accounts were into the Paine Webber marriage, they parties during the are marital statutory presumption applies. assets to which separately foregoing mind, With the I would con- presumption sider whether wife rebutted husband equally acquisitions that occurred when contributed given par- proceeds and other funds to wife her stock joint deposited the Paine accounts in ents were into Webber enthusiasm, With little I conclude 1995 and thereafter. presumption. The evidence showed that wife rebutted the placed for funds in the Paine Webber accounts those par- her commitment to the “cultural reasons” and because of There was no evidence that husband ties’ shared future. deposit particular to the stock made contributions joint proceeds accounts. and to her funds into principles longstanding divi- Based on evidentiary where, vacuum would not be conclusive sion, that (1) marriage lengthy parties’ duration, was one of as here (2) understanding agreement or common there was no joint parties to be wife’s that the accounts were between the separate property, (3) parties valued hard work both (4) consequence, par- future, as a saved for a shared commingled thoroughly their and financial affairs. assets ties Stice, See Stice (1989) 316, 328-29, (discussing similar factors in determining whether presump- rebutted). tion was circumstances, Under such it would be reasonable to conclude that wife did not rebut the presump- tion that husband contributed to the questioned Massee, the Supreme Court said: However, in acquisitions. “In deciding whether of equal contri- rebutted, bution is the court first must mag- determine the nitude of each spouse’s overall contribution to the acquisition of marital assets from evidence in the If record. homemaker, one ais that determination necessarily will include an assessment of the spouse’s homemaker con- tribution enterprise homemaking. A homemaker spouse’s overall may consist of a combination of domestic contributions and economic or other nondomes- tic contributions.

“Once the court has spouse’s determined each overall contribution to the acquisition of assets, marital the court compares the respective contributions of the spouses. The question ultimate is whether spouse the seeking to rebut the presumption of equal proved, contribution has by pre- a ponderance evidence, of the that the did not contribute to the acquisition ofmarital assets. If the court determines that the equal of contribu- rebutted, tion is the presumption drops from the case and the court divides the property according to magnitude the of each spouse’s contribution to acquisition the of marital words, assets. In other the court distributes the marital assets without regard to presumption, but in a manner that just is and proper in all circumstances, the including proven the parties contributions of the marital assets.” (footnotes omitted).

Massee, 328 Or at 205 The quoted can be passage understood to suggest that the trial court should admit evidence about the details of each party’s activities throughout the should marriage, to attempt assign values to those activities, and then should attempt to correlate those values to the parties’ marital At blush, assets. first that approach appears to be difficult to reconcile with the court’s earlier decision in Stice. In that case, the wife that argued she should be able to rebut the the showing that mar-

statutory presumption by throughout the had that purchaser,” acqui- she been the “saver riage had been the result of her “indus- disputed sition of asset her had a and that husband been try frugality,” his income “spender” who “used most of above self-indulgent his monthly expenses enjoyment that needed for the for Id. at The court her stat- rejected argument, hobbies.” 324. properties “In a which the ing, long-term marriage parties’ should acquired during marriage, parties sepa- were on as Id at 327. equal possible.” rate basis to Kunze, however, In the court limit appeared reach of Stice: that, Stice, Or court considered

“We note this statutory pre- for reason under the commingling sumption a different concluding that the wife equal contribution. case, statutory presumption in that had failed to rebut the the court found it parties had commin- persuasive and that the wife had not shown gled their financial affairs to be the disputed that the husband considered assets Specifically, Id. at 328-29. separate property. pre- strengthened that evidence court observed had that the husband made an sumption showing that had enabled the wife devote the husband Id. disputed income to assets. purchase her however, case, Stice, to this reasoning inapposite not that his efforts dur- because husband here does contend indirectly marriage directly either ing the contributed below, rather, disputed property; marital as discussed those argues only part that he is entitled assets he because assets into converted those wife’s acts the marital joint partnership.” assets of retrench- Or at n 10. The court’s apparent 139 As Professor controversy. in Kunze is not free from ment has Leslie Harris observed: spouse’s one

“Avoiding an examination whether other’s, except than in inherent in were valuable efforts extreme more cases, policies several that are furthers First, such an division and other statutes. the inquiry in as a consideration

clashes with the abolition fault divorce; line between marital decisions at economic would contributions be and less-than-wholehearted fault Second, draw, in detail about inquiring at best. difficult family’swell-being greater who made contributions to the during marriage may parties’ willing- undermine the during marriage ness to set aside their ownself-interest family. good Third, as the in favor of the common of the 107.105(l)(f) Supreme repeatedly [ORS] said, Court has always recognize impor- financial must tance ofboth be construedto spouses’ workand to ensure that homemakers spouses forgo development and other who career to care for parties’ home and children share in the economicfruits marriage. Requiring ofthe trial courts to evaluate the rela- spouses’ during marriage tive worth ofthe labors could significantly policy.” undermine this Tracing, Spousal Harris, Leslie Joan Gifts, Rebuttable Presumptions: Oregon Property Law, Puzzles Distribution 2005) (footnotes Rev_,_(forthcoming 83 Or L omit- ted). notwithstanding, sug- Professor Harris’s views Kunze gests except involving spouse, that, cases a homemaker probably require particularized Court will spouse’s assessment of a disputed to the commingled determining asset —even a asset —in presumption whether the Here, has been rebutted. the record directly is bereft of evidence that indirectly, puted contributed, husband joint acquisition of an interest in the dis- Accordingly, funds. rebutted acquisition. husband contributed to that

Although tempting majority’s it to follow the analysis proceeds through steps pre- as it the additional by Kunze, scribed the exercise would not contribute to a bet- understanding principles play. say ter that the at Suffice it

majority appears to come to a conclusion that Kunze binding precedent countenances. demands, Because so I respectfully concur.

Case Details

Case Name: Matter of Marriage of Tsukamaki

Court Name: Court of Appeals of Oregon

Date Published: May 18, 2005

Citation: 112 P.3d 416

Docket Number: DR0204409; A122400

Court Abbreviation: Or. Ct. App.