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In re Marriage of Stuart

Court of Appeals of Oregon

October 30, 2013

In the Matter of the Marriage of SHERYL L. STUART, Petitioner-Respondent Cross-Appellant, and ROGER L. ELY, Respondent-Appellant Cross-Respondent.

Argued and submitted on July 02, 2012.

Benton County Circuit Court 1030158 Janet Schoenhard Holcomb, Judge.

Edward L. Daniels argued the cause for appellant-cross-respondent. With him on the briefs was Law Office of Daniels and Ivers.

Pamela S. Hediger argued the cause for respondent-cross-appellant. With her on the briefs were Laurie J. Hart and Evashevski, Elliott, Cihak & Hediger, P.C.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

ORTEGA, P. J.

Husband appeals a general judgment of dissolution, contending that the trial court erred in awarding wife transitional spousal support under ORS 107.105(1)(d)(A), and wife cross-appeals, asserting that the trial court should have awarded her indefinite maintenance support. We conclude that the trial court improperly categorized the spousal support in this case as transitional support and, accordingly, reverse and remand the award of spousal support; we otherwise affirm the dissolution judgment.

Neither party requests de novo review, and we conclude that this is not an exceptional case where such review is appropriate. See ORS 19.415(3) (the Court of Appeals has discretion to review de novo in equitable actions); ORAP 5.40(8)(c) ("The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew only in exceptional cases. Consistently with that presumption against the exercise of discretion, requests [for de novo review] are disfavored."). Accordingly, we "state the facts consistently with the trial court's express and implied findings, supplemented with uncontroverted information from the record." Kirkpatrick and Kirkpatrick, 248 Or.App. 539, 541, 273 P.3d 361 (2012).

The parties in this case married in 1990, separated in late 2009, and the dissolution petition was filed in April 2010. At the time of the dissolution in 2011, husband was 60 years old and wife was 45. During the marriage, both parties completed doctorate degrees in environmental engineering. In addition, husband was certified as a professional engineer. Wife, in 2011, became certified as a professional engineer as well.

After husband completed his PhD, the family moved from Corvallis to Idaho, and husband took a position as a professor at University of Idaho while wife completed her degree and post doctoral work and, later, taught part time. The parties' first child was born while they lived in Idaho. In 1999, the family moved to Connecticut where husband had accepted a position as a professor at Yale University. The parties' second child was born early in 2000 and, thereafter, wife taught part time at the university.

In 2003, after husband learned that he would not be offered tenure at Yale, he obtained a faculty position at Oregon State University (OSU) and the family moved to Corvallis. Initially wife was not employed outside the home, but after about a year and a half, she obtained an engineering position at a private company--CH2M Hill--in Corvallis. She explained that she had not pursued a teaching position because she had been taking care of the children and the home and had "lost any momentum or thread of doing research" and, because she had not been doing research, she was "stale as far as applying for faculty positions" and would have a difficult time attracting graduate students or pursuing funding.

During the marriage, wife was the primary homemaker and caretaker for the parties' children while husband focused on developing his academic career. At the time of the dissolution, husband was a tenured professor at OSU and wife was employed half-time as an environmental engineer at CH2M Hill. Husband earned $6, 703 per month in his teaching position (which was paid at .75 full time equivalent) and could supplement that salary with research grants. Wife earned $37.78 per hour and had a gross income of $3, 158 per month. Husband's employer provided heath insurance and other benefits at no cost to him; in order to obtain health insurance and other benefits from her employer, wife was required to pay. With respect to her position, wife explained that she worked half-time because there was not enough work near Corvallis at the company to provide her with a full-time position. She stated, however, that she would accept a full-time position at CH2M Hill if one became available that did not require her to leave the state and that she wanted to obtain a full-time position. She also indicated that she would leave her current employer if she could obtain a stable full-time position in an appropriate location and with health insurance.[1] Shortly before the dissolution, wife had also applied for a position as an instructor at OSU. During the marriage, the parties lived comfortably, were basically debt free, and consistently saved for retirement.

At the dissolution trial, the parties had stipulated to the resolution of every issue with the exception of spousal support. Wife sought an award of indefinite maintenance spousal support. Husband asserted that no spousal support was appropriate in this case. After hearing testimony from husband and wife, as well as husband's vocational expert, the trial court concluded that an award of spousal support was appropriate. However, it did not award the maintenance support wife had requested, instead classifying the support as transitional spousal support. The court made a number of findings:

"In terms of findings that I think are important in terms of the spousal support issue, I think one of the factors is the age of the parties, that [husband] is 60 years old and [wife] is 45 years old, that it is a long-term marriage, a 20-plus year marriage, and both [parties] are professional licensed engineers, certified professional engineers. They have similar training and employment skills; however, in terms of work experience for several years during the marriage [wife] focused on being the primary ...

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