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In re Marriage of Cirina

Court of Appeals of Oregon

May 13, 2015

In the Matter of the Marriage of Tina Jeanette CIRINA, Petitioner-Respondent, and Marco Jesse CIRINA, Respondent-Appellant

Argued and Submitted March 31, 2015.

12DR1161. Josephine County Circuit Court. Pat Wolke, Judge.

George W. Kelly argued the cause and filed the brief for appellant.

No appearance for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

OPINION

[271 Or.App. 163] LAGESEN, J.

In this appeal, husband challenges four aspects of the judgment dissolving his marriage to wife. First, husband argues that the trial court's property division was flawed because the court allocated a significant debt__ $130,599.83 owed to husband's father--entirely to husband, notwithstanding the fact that the debt was incurred to pay off a loan on the marital residence. In his second and third assignments of error, husband argues that the trial court miscalculated his income, resulting in erroneous awards of spousal and child support. Finally, husband

Page 505

argues that the trial court erred in awarding attorney fees to wife when she had not filed a request pursuant to ORCP 68. In reviewing the dissolution judgment, " we are bound by the trial court's factual findings if they are supported by any evidence in the record, and we review the court's legal conclusions for errors of law." Kirkpatrick and Kirkpatrick, 248 Or.App. 539, 541 n 1, 273 P.3d 361 (2012).[1] For the reasons that follow, we vacate and remand for the trial court to reconsider its property division and award of attorney fees, but we reject husband's contentions regarding the calculation of his support obligations.

PROPERTY DIVISION

We describe only those facts underlying the trial court's property division that bear on our resolution of husband's claim of error on appeal. One of the main issues at trial concerned the fact that, during the course of the parties' marriage, husband's father paid off a mortgage of $130,599.83 on the marital residence. The parties offered conflicting evidence regarding the nature of that payoff. Wife understood the money to be a gift from husband's father that would not be paid back. Husband, for his part, testified that the money was a loan, and he offered a promissory note to that effect as an exhibit; the note was signed by husband only, and it was undisputed that wife did not learn of the payoff until after it happened.

[271 Or.App. 164] In dividing the parties' assets, the trial court did not expressly decide whether the payment by husband's father was a loan or a gift. Rather, the court appears to have reasoned that, even assuming that the payment was a loan, the debt should be allocated solely to husband because wife had not signed the promissory note. The court explained:

" The Court heard a great deal of testimony about each [party's] impression as to the import of the payment in excess of $130,000 made by [husband's father] to satisfy the first lien on the couple's home; and the resulting promissory note, petitioner's exhibit 11. However, the most compelling item of evidence to this Court is the fact that the promissory note was not signed by [wife]. There is a strong public policy contained in Oregon law, against charging ...

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