Lead Opinion
Husband appeals from an order modifying a dissolution judgment to award wife $4,800 in spousal support, payable at $300 a month. On de novo review, we affirm.
After 20 years of marriage, the parties were divorced in 1971. They executed a property settlement agreement, which was incorporated into the judgment. Under the agreement, husband was granted custody of the eldest child, wife was granted custody of the two younger girls and was awarded $500 per month child support until those children reached majority. Wife also received the family residence free of any mortgage, and released any interest she might have had in husband’s retail ski business. With respect to spousal support, the parties agreed:
“That Husband shall pay to Wife the sum of $1.00 per month as and for permanent alimony and it is the specific intention of the parties that alimony for wife be subject to further order of the Court and may be increased provided a proper showing of need based upon health or financial circumstances be made by wife upon affidavit and motion to the Court * *
Although husband’s child support obligation ended in December, 1977, he continued to pay wife $500 per month. In 1979, the parties stipulated that sums paid to wife after January 1,1978 were paid as “alimony.” Husband continued to pay wife $500 until October, 1986.
Wife then filed a motion asking the court to declare that the 1979 stipulation imposed a duty on husband to pay $500 per month or, alternatively, to modify the judgment to so provide. The trial court concluded that, under the property settlement agreement, it retained jurisdiction to modify spousal support, and it awarded wife a lump sum of $4,800, payable at $300 per month, as “rehabilitative alimony.”
In his first assignment of error, husband challenges the trial court’s jurisdiction to modify spousal support. It is true, as the dissent points out, that a trial court, in fixing spousal support, must base the award on conditions cognizable at the time of the award. The minimal spousal support involved here, however, was not imposed by the court, but was part of a negotiated settlement agreement. Presumably, wife, in accepting such minimal support for the express purpose of
Ward v. Ward,
We see no meaningful distinction between this case and Pope and Pope,
On appeal, we reversed. We recognized the general principle that remarriage may be a sufficient change of circumstances to justify modification or termination of spousal support. We held, however, that that rule was inapplicable
There is no question that if, in Pope and Pope, supra, the parties had not specifically agreed as they did in the settlement agreement, husband would have been entitled to termination of support, because wife was substantially better off financially than she had been with husband, although she was very well off with him, too. The same thing is true here: The parties expressly agreed that, if wife’s health or financial circumstances required more support from husband in the future, he would pay it on a proper showing.
Husband argues that, even if the agreement is enforceable, the trial court erred in finding that wife’s health or financial circumstances required more support. Wife suffers from undiagnosed, transitory “spells.” The episodes might last anywhere from a day to several months. An attack begins with a severe headache, and then her whole body convulses. Medication can control the severity of the attack, but it does not prevent an attack from occurring. Although the doctors do not agree as to the origin of those “spells,”
In his next assignment, husband argues that, in any event, the facts do not justify awarding wife $300 a month for 16 months. He does not contend that he is unable to pay that
Husband also contends that the trial court erred when it found that wife had made sufficient efforts to make herself financially self-sufficient and, therefore, the court should terminate spousal support under ORS 107.407. Wife was 43 years old when the parties divorced in 1971. She has a high school education. After the divorce, she attended a trade school to learn office and clerical skills, paid for by husband. Between 1973 and 1978, she held various positions as a medical receptionist, a secretary/bookkeeper, a door-to-door salesperson and a home-health aide. Some jobs were part-time, most did not last for more than nine months and none paid more than $5.00 an hour. A ruptured disc forced her to quit work and required surgery in November, 1978. The same disc re-ruptured, requiring additional surgery in 1979. Although she was released to return to work in March, 1980, she made no effort to obtain employment until husband terminated his payments in October, 1986.
Under ORS 107.407 the court may terminate support if wife has not made reasonable efforts to become financially self-supporting and independent of the support. Under ORS 107.412(2), we determine the reasonableness of wife’s efforts in light of her age, work experience, education, earning capacity and her physical and mental health history. Alley and Alley,
It is apparent that wife has attempted to become self-
Finally, husband argues that the trial court awarded wife excessive attorney fees and costs in the amount of $7,006.72. An award of attorney fees under ORS 107.135(6) is discretionary. We review only for abuse of discretion. Moreau and Moreau,
Affirmed.
Notes
As part of the property settlement, wife released her interest in husband’s retail ski business. In 1971, the year in which the parties were divorced, that business provided husband with over $60,000 in taxable income.
A psychiatrist retained to evaluate wife’s psychological and physiological condition, was unable to diagnose her problem. He did state that she had bona fide physical symptoms that were not due to a psychiatric abnormality. On the other hand, a clinical psychologist diagnosed the condition as an undifferentiated somatoform disorder. In lay terms, that means that, although wife honestly believes that she has a physical problem and actually experiences those symptoms, there is no organic basis for the illness.
Wife testified that she did not work, because she had “these two back surgeries, and I had this problem [the spells] that comes and goes. I was getting my check every month, and nobody was pressuring me. I figured it was my own business.”
Dissenting Opinion
dissenting.
The majority would allow the parties to do by agreement what a court could not do on its own. It thereby would permit the parties to defeat what the legislature intended. The 1971 judgment for token support was the result of an attempt by the parties to circumvent the limits on the authority granted trial courts by the legislature.
In Johnson v. Johnson,
“To adopt the suggestions of counsel for plaintiff by making a minimal or token award of alimony for the sole purpose of reserving to the court the power to modify would result in an indirect, if not direct circumvention of the provisions of ORS 107.130(a).”1
In Ward v. Ward,
“The retention of a token alimony obligation in order to continue the liability for alimony in the event that the recipient becomes needy in the future is factually speculative and procedurally fictitious.”
See also Ash and Ash,
The majority relies on Pope and Pope,
“Notwithstanding our authority to modify the decree, we perceive no public policy reason for doing so. * * * We believe that policy considerations support our conclusion to enforce the agreement as written.” Pope and Pope, supra,73 Or App at 248 . (Emphasis supplied.)
Pope finds its rationale in McDonnal and McDonnal,
“We do not suggest that a property settlement providing for spousal support may go so far as to preclude the court’s statutory power to modify support even where changed circumstances exist. * * * However, short of conflict with statutory powers of the court, we recognize the court’s responsibility to discover and give effect to the intent of the parties as reflected in the incorporated settlement agreement.”293 Or at 779 . (Emphasis supplied.)
Both Pope and McDonnal recognize that an agreement of the parties will be deemed subordinate to public policy decisions by the legislature if a conflict between the terms of the agreement and the policy occurs. The relief sought by husband here is governed solely by ORS 107.135. See Grayson v. Grayson,
I dissent.
ORS 107.130(a) was repealed in 1971 and replaced by ORS 107.135. However, the policy of requiring that a modification of support be based on existing conditions continues.