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In re Marriage of Pollock

Court of Appeals of Oregon

October 30, 2013

In the Matter of the Marriage of PATRICIA POLLOCK, Petitioner-Respondent Cross-Appellant, and WILLIAM LAWRENCE POLLOCK, Respondent-Appellant Cross-Respondent.

Argued and submitted on February 05, 2013.

Yamhill County Circuit Court DO080256, Carroll J. Tichenor, Judge.

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

William R. Valent argued the cause for respondent-cross-appellant. With him on the briefs was David N. Hobson, Jr.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.


Husband appeals from a dissolution judgment, contending that the terms of a marital settlement agreement--executed after mediation--should control the division of the marital property and that the trial court erred in adjusting the property division by ordering that husband pay an additional $300, 000 to wife. Husband seeks entry of a judgment specifically enforcing the terms of the marital settlement agreement. Husband also appeals from a supplemental judgment, contending that the trial court erred in denying his petition for attorney fees and costs. Wife cross-appeals from the dissolution judgment, assigning error both to the trial court's denial of her discovery request and to its refusal to hear certain evidence related to the parties' financial circumstances. Wife seeks to have the trial court's dissolution judgment set aside and to have the case remanded for a trial. Husband has moved to dismiss wife's cross-appeal on the ground that she accepted the benefits of the dissolution judgment. On husband's appeal, we reverse and remand the dissolution judgment and vacate the supplemental judgment. As to wife's cross-appeal, we deny husband's motion to dismiss and affirm.

Because we conclude that this is not an "exceptional case, " we decline to exercise our discretionary authority to review the record de novo. ORS 19.415; ORAP 5.40(8)(c). If the trial court's findings of fact are supported by evidence in the record, we will not disturb them, Christensen and Christensen, 253 Or.App. 634, 641, 292 P.3d 568 (2012), and we recite the following facts from the trial court's findings in accordance with that standard.

Husband and wife were married in 2001 after signing a premarital agreement. That agreement provided that each party would, in the event of a divorce, receive his or her separate property as listed in a schedule attached to the agreement. In May 2008, wife filed a petition for dissolution of the marriage. Wife contested the validity of the premarital agreement, but the trial court concluded that it was enforceable. That ruling is not challenged in this appeal. Eventually, the parties agreed to mediation in order to reach a settlement for the disposition of the property that was not covered by the premarital agreement. Pursuant to the mediation, they each signed a handwritten settlement agreement that awarded them each portions of the property that was not allocated by the premarital agreement and that purported to "resolve[ ] all claims between the parties."

Based on that agreement, husband's counsel proposed a "Stipulated General Judgment of Dissolution of Marriage, " which was forwarded to wife's attorney. After some disagreement over the terms, husband's counsel eventually submitted a proposed judgment to the trial court. Several weeks later, however, wife hired a new attorney and objected to the proposed judgment, arguing that the settlement agreement should not be enforced. Wife maintained that she had signed the settlement agreement under duress, owing to various actions of her previous attorney and the side effects of recent kidney surgery. Wife also took the position that the settlement agreement's property division was inequitable. The proposed judgment was never entered.

After a two-day hearing in August 2010, the trial court issued a letter opinion that included a lengthy valuation of the parties' assets and 13 specific findings and conclusions. The court found, among other things, that the parties had negotiated the settlement agreement at arm's length; that neither party had been coerced or improperly induced to enter the agreement; that "[wife] and [husband] entered into the mediated settlement agreement freely and voluntarily"; and that the agreement did not "violate the law or contravene public policy." Based on its interpretation of the agreement, however, the court also made an "adjustment" to the proposed settlement by ordering husband to pay wife an additional $300, 000.

The court's reasoning for the adjustment requires an understanding of two distinct aspects of the parties' financial affairs: a line of credit and the "Baldocci loan." While the divorce action was pending, both parties retained access to a line of credit secured by their jointly owned ranch property. Approximately five months before the mediation that produced the settlement agreement, husband informed wife that he had drawn down the line of credit and deposited the drawn funds--approximately $266, 000--in an account titled in his name only. Husband told wife that the drawdown--which was for the maximum amount then available--was necessary to limit wife's spending, which he considered to be excessive during that time period. The settlement agreement provided that wife was to receive the ranch property subject to both the line of credit--as drawn down by husband--and a mortgage. The agreement also required husband to make monthly spousal support payments of $15, 000 to wife, but allowed husband to receive credit for that obligation by making payments on the line of credit and mortgage.

That brings us to the Baldocci loan. At some point during the parties' marriage--the precise date is unclear from the record--husband made a loan of approximately $300, 000 to a Ms. Baldocci.[1] Wife acknowledged at the August hearing that she had learned--before the settlement mediation--that husband had given money to Baldocci and also that she had known that the funds that husband had given to Baldocci came out of husband's separate bank account. Wife stated that she did not know the precise amount of the loan before the mediation, but that she had learned that husband had given Baldocci funds when she saw checks from his separate account made out to Baldocci. The only evidence at the hearing indicated that the Baldocci loan was made from husband's separate bank account; the settlement agreement awarded husband "all accounts in his name."

After taking evidence on the above-described transactions, the trial court adjusted the settlement agreement by ordering that husband pay wife $300, 000 in addition to what was provided for in the agreement. In its letter opinion, the court made two determinations of particular relevance. The first states:

"The Court specifically finds that the mediated settlement agreement without the distribution of the marital asset of the loan to * * * Baldocci, with the values of the property adjusted as discussed above, is within the range of possible property divisions that are ...

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