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In re Marriage of Andersen

Court of Appeals of Oregon

September 25, 2013

In the Matter of the Marriage of KAARIN BETH ANDERSEN, nka Kaarin Beth Powell, Petitioner-Respondent,
v.
STEVEN CRAIG ANDERSEN, Respondent-Appellant. and

Argued and submitted on July 02, 2013.

Clackamas County Circuit Court No. DR11060152 Deanne L. Darling, Judge.

Helen C. Tompkins argued the cause and filed the briefs for appellant.

Laura Graser argued the cause and filed the brief for respondent.

Before Sercombe, Presiding Judge, and Haselton, Chief Judge, and Hadlock, Judge.

HASELTON, C. J.

Husband appeals a general judgment of dissolution, challenging, inter alia, the trial court's awards of transitional and compensatory spousal support and child support. Husband contends, in part, that (1) the court erred in determining that wife was entitled to compensatory spousal support; and (2) in all events, the court erred in fixing the amount of transitional and compensatory spousal support and child support in that the court's finding as to his earning capacity was unsupported by legally sufficient evidence. We reject husband's first contention, but we agree with his second.[1] Accordingly, we reverse and remand the spousal and child support awards, and otherwise affirm.[2]

In this case, husband has not requested that we engage in de novo review, and we do not exercise our discretion to do so. ORS 19.415(3)(b); ORAP 5.40(8)(c). Accordingly, "we are bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record." Morton and Morton, 252 Or.App. 525, 527, 287 P.3d 1227 (2012). "We review the trial court's ultimate determination about a 'just and equitable' amount of support for abuse of discretion." Bailey and Bailey, 248 Or.App. 271, 275, 273 P.3d 263 (2012). We will uphold a support award if, "given the findings of the trial court that are supported by the record, the court's determination that an award of support is 'just and equitable' represents a choice among legally correct alternatives." Berg and Berg, 250 Or.App. 1, 2, 279 P.3d 286 (2012).

The historical facts of the parties' relationship are undisputed. Husband and wife married in 1991 while they were both undergraduate students working in service-industry jobs in Washington. After husband completed his undergraduate degree, he entered law school in California, and wife accompanied him.[3] Husband did not work during his first year of law school, and wife worked as a receptionist. After that first year, husband worked as a paid law clerk in a law firm full time in the summers and nearly full time during his second and third years of law school. Wife continued to work as a receptionist during that time. Husband also took out student loans to pay for school and living expenses, which his mother eventually paid off.

Shortly after husband graduated from law school, the couple moved back to Washington where husband worked at a lumber company before moving through a series of jobs with law firms that focused on commercial, construction, and real estate litigation. In 2005, approximately 10 years into his legal career, husband started a solo practice in Vancouver focusing on construction litigation and real estate. From 2005 to 2011, wife worked for husband's law practice part time, and without pay, doing basic bookkeeping and data entry. She spent the majority of her time as homemaker, keeping the couple's house and rearing the parties' four children, who, at the time of trial, were ages 14, 13, 11, and 4.

Husband initially experienced financial success as a solo practitioner. According to wife, "when [husband] started his law firm, we were bringing home $10, 000 a month just in paychecks, and we would spend it all. Anything that we wanted, we would go out and purchase." The parties purchased a five-bedroom home, multiple vehicles, and recreational equipment. However, as the economy entered a recession, the construction and real estate industry declined, and husband had difficulty procuring construction and real estate-related legal work. In addition, he had trouble collecting legal fees from the clients that he had already served. In the five years leading up to the dissolution, 2007 to 2011, husband's practice generated the following average net monthly incomes: $8, 700; $7, 700; $7, 400; $2, 200; and $2, 300.

The parties separated in June 2010. They filed for bankruptcy that December, and the bankruptcy was finalized in February 2011. The parties subsequently lost their home in Washington to foreclosure. At the time of dissolution, the parties were living separately in the same community near Mt. Hood. Husband was living in a cabin that his mother had given him and was commuting to his law office in Vancouver. At that time, and for the two preceding years, husband had been billing approximately two hours per working day.

At the time of dissolution, wife and children were living in a mobile home with some financial support from her parents. Wife was caring for the children full time and volunteering part time as a firefighter and first responder. She had not sought fulltime employment because her limited education and job experience would only allow her to obtain a low-paying job in which the cost of childcare would exceed her wages. Wife had recently attended community college courses and planned to continue her education with hopes of beginning a career in the medical field.

In the dissolution petition, wife sought, as material here, transitional and compensatory spousal support and child support. ORS 107.105(1) governs entitlement to, and the amount of, such support. That statute provides, in pertinent part:

"Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment:
"(c) For the support of the children of the marriage by the parties. In ordering child support, the formula established under ORS 25.275 shall apply.
"(d) For spousal support, an amount of money for a period of time as may be just and equitable for one party to contribute to the other, in gross or in installments or both. * * * In making the spousal support order, the court shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision. The court may order:
"(A) Transitional spousal support as needed for a party to attain education and training necessary to allow the party to prepare for reentry into the job market or for advancement therein. The factors to be considered by the court in awarding transitional spousal support include but are not limited to:
"(i) The duration of the marriage;
"(ii) A party's training and employment skills;
"(iii) A party's work experience;
"(iv) The financial needs and resources of ...

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