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In re Dissolution of Marriage of Berrow

June 18, 1973

IN THE MATTER OF THE DISSOLUTION OF THE MARRIAGE OF BERROW, RESPONDENT, AND BERROW, APPELLANT


Appeal from Circuit Court, Lane County. Douglas R. Spencer, Judge. No. 72 0752.

A. J. Morris, Eugene, argued the cause for appellant. With him on the briefs were Bailey, Hoffman, Morris & Van Rysselberghe, Eugene.

Allan H. Coons, Eugene, argued the cause for respondent. With him on the brief were Coons & Malagon, Eugene.

Foley, Judge. Schwab, Chief Judge, and Langtry, Judge.

Foley

This is an appeal from a decree of dissolution of marriage in which the principal issue is the court's approval of a property settlement agreement entered into between the parties. We affirm.

Petitioner-husband, 44, and respondent-wife, 39, had been married for 17 years when the petition for dissolution was filed. They were parents of two teenage girls. Respondent-wife became involved with a married man and upon learning of this relationship petitioner-husband filed for dissolution. Thereafter, a property settlement agreement was prepared by Mr. Berrow's lawyer. The terms of the proposed agreement were discussed by Mrs. Berrow with two attorneys, both of whom advised her that they could obtain more property for her than provided in the proposed agreement. The agreement provided for division of real property with a differential of approximately $24,000 in favor of the husband. There was discussion between the husband and wife of the possible liability of the wife's paramour for alienation of affections or an allied cause of action. Because she was especially concerned with protecting her paramour and his family, she overruled the attorney's advice and instructed him to negotiate a settlement on the basis of the existing property settlement agreement if he could obtain for her from her husband a general release of her paramour from all liability. This was done and after a tax exemption modification, the agreement was signed by both parties. No one put a monetary valuation

on the release.*fn1 But all seemed to concede that it had value. A colloquy between Mrs. Berrow's counsel and the court at the conclusion of testimony was as follows:

"THE COURT: Do you agree it would be inequitable to throw out the property settlement agreement and leave Mr. Berrow subject to that release of * * * [the paramour]?

"[MRS. BERROW'S ATTORNEY]: No, I don't.

"THE COURT: That's a rather substantial property right, is it not?

"[MRS. BERROW'S ATTORNEY]: That consideration, Your Honor, is in my opinion in this day and age of dubious value."

The importance of the release to Mrs. Berrow declined after the property settlement and release had been consummated. The court questioned Mrs. ...


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