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In re Marriage of Logan

Court of Appeals of Oregon

April 1, 2015

In the Matter of the Marriage of Melanie Lisa LOGAN, Petitioner-Respondent, and Bruce Scott LOGAN, Respondent-Appellant

Argued and Submitted May 21, 2014

Jackson County Circuit Court. 082573D1. Daniel Leon Harris, Judge.

Laura Graser argued the cause and filed the briefs for appellant.

Russell Lipetzky argued the cause and filed the brief for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.

OPINION

[270 Or.App. 177] DUNCAN, P. J.

Husband appeals a dissolution judgment that, among other provisions, requires him to

Page 338

pay $4,000 a month in maintenance support to wife until 2027--by which time he will be nearly 79 years old. Husband, an oral surgeon, argues that the assumption underlying that award of spousal support--namely, that he will continue to work as a surgeon until age 79--is not supported by any evidence in the record. He further argues that it is not just and equitable to essentially force him to work until that age to pay the obligation. We affirm.

Except as otherwise noted, the facts relevant to the issue of spousal support are not disputed on appeal. Husband and wife married in 1989 and separated in 2007. At the time of trial in January 2012, husband was 63 and wife was 49. The parties' child was 17 at the time of trial and planned to begin college in the fall of 2012.[1] The parties stipulated that wife would have custody of the child and that husband would pay child support.

Throughout the marriage, husband worked as an oral surgeon. For most of that time, husband was in a partnership with other surgeons, but that partnership dissolved in 2009. As part of that dissolution, husband's partners gave him a choice: He could retire, enter into a noncompetition agreement, and receive a larger compensation package, or he could receive a smaller compensation package and continue working in the area. Husband chose the latter and started a solo practice in 2010, taking out a $1 million loan to start the practice. He submitted evidence that his income was approximately $40,000 per month at the time of trial, the majority of which (approximately $27,000) was from his solo practice; the remaining income came from rental income, interest income, and capital gains.

Wife worked as husband's surgical assistant until 1994, but she had not worked outside the home for most of the marriage. She presented evidence at trial that she would be able to earn slightly more than $2,200 per month, [270 Or.App. 178] and she sought indefinite maintenance support in addition to a share of the parties' considerable assets. She testified that she would also like for the court to require husband to maintain a life insurance policy in the event that she were to be awarded indefinite maintenance support, so that she would have " sort of a nest egg in the event something happened to him." Her counsel, in closing argument, concluded by highlighting the request for indefinite support:

" So, again, we think that spousal support in the $12,000 range, I mean that's reasonable. And if and when [husband] retires, then that may very well be a reason to take another look at it. But in this long of a marriage, I mean all of the cases, whether it's [Morrison and Morrison, 240 Or.App. 656, 247 P.3d 1281 (2011),] or all of the cases talk about indefinite support and pretty significant support."

Until closing argument, there had been little mention of the possibility of husband's retirement. The only direct testimony on the subject came from wife, not husband. Wife's counsel asked her, " [H]ave the two of you, when you were living together, did you ever have discussions about how long he intended to work?" Wife answered:

" We did. Because I had always wanted him to retire early and he would always tell me he was gonna work until he dies, or he was gonna work until he was in his seventies because of [their son]. So, I'm not really sure. He would go between he hated his work and ...

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