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In re Marriage of Fine

Court of Appeals of Oregon

July 15, 2015

In the Matter of the Marriage of Debbie L. FINE, nka Debbie L. Thomason, Petitioner-Respondent, and Scott A. FINE, Respondent-Appellant

Argued and Submitted January 6, 2015

Page 199

Josephine County Circuit Court. 10DR0890. Michael Newman, Judge.

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

Amanda R. Benjamin and Hornecker Cowling LLP filed the brief for respondent.

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


Page 200

[272 Or.App. 308] TOOKEY, J.

Husband appeals a general judgment of dissolution, seeking a modification of the property division and spousal support award. He asserts that the trial court erred when it (1) miscalculated the amount of money that wife withdrew from the parties' joint bank accounts, and failed to account for that amount in the property division; (2) failed to account, in the property division, for $165,000 worth of payments that were made from joint funds toward a debt that wife owed to her parents for the purchase of Thomason Enterprises; and (3) denied husband spousal support. We reject husband's third assignment of error without discussion and write only to address husband's first and second assignments of error relating to the property division.

Regarding husband's first assignment of error, we conclude that the court's finding that wife had transferred only $138,516 from the parties' joint accounts was supported by evidence in the record, but that the court's discretionary decision to take " no action" regarding those transferred funds was based on a factual finding that was not supported by any evidence in the record. Regarding husband's second assignment of error, we conclude that the court's decision to disregard husband's contribution to the payment of wife's debt to her parents was not adequately explained by the court. Accordingly, we reverse and remand the property division, and we otherwise affirm.

We decline to exercise our discretion to review this case de novo. See ORS 19.415(3)(b) (" Upon an appeal in an equitable action or proceeding other than an appeal from a judgment in a proceeding for the termination of parental rights, the Court of Appeals, acting in its sole discretion, may try the cause anew upon the record or make one or more factual findings anew upon the record." ); ORAP 5.40(8)(c) (we exercise our discretion to review de novo only in " exceptional cases" ). Therefore, we are " bound by the trial court's findings of historical fact that are supported by any evidence in the record." Porter and Griffi, 245 Or.App. 178, 182-83, 262 P.3d 1169 (2011). We present the facts consistently with that standard.

[272 Or.App. 309] Husband and wife met in 2004, began cohabitating later the same year, married in 2007, and separated in September 2010. The parties have no children together, but wife has three children from a previous marriage, one of whom was still a minor at the time of the dissolution.

Wife is the owner of Thomason Enterprises, Inc., an S corporation doing business as the Galice Resort. Wife and her previous husband purchased the corporation from wife's parents in 1995, for $750,000, with payments made over time. After the dissolution of wife's first marriage, wife continued to hold the shares of stock and continued to make the monthly payments under the purchase agreement. During husband and wife's marriage, wife made the $5,000 monthly payments from a joint bank account at Liberty Bank. When the parties had first opened the Liberty Bank joint account, the account had been funded, in part, by a contribution of $100,000 from each party. Over the course of the three-year marriage, a total of $165,000 was paid from the parties' Liberty Bank joint account toward wife's debt to her parents. Husband did not obtain any shares of stock in the corporation, by gift or otherwise, and he agrees with wife that he has never been considered a shareholder of the corporation.

Husband was a firefighter when the parties met. Then, shortly after husband and wife began cohabitating, husband became a resort employee, performing a variety of jobs, as needed, to maintain the resort and its various operations. At first, he continued to also work part-time as a firefighter, but, over time, husband became increasingly involved in the resort. The court found that husband " was paid for his work during the time he was there--and in some years, paid

Page 201

overly generously," and that he had left the business in " more or less the same condition as when he arrived."

Husband and wife maintained several joint bank accounts during the marriage, and they conducted their personal and business affairs both from their various personal and business accounts and in cash transactions. During the dissolution proceedings, wife admitted that their personal and business accounts were all commingled, and she " freely [272 Or.App. 310] wrote checks on the Galice Resort account that were for personal use." Thus, as the court noted in its letter opinion, it was " impossible to determine, dollar by dollar, which party paid for a particular asset or obligation."

Just before the parties separated, wife transferred funds from the parties' joint bank accounts to her own separate accounts. According to husband, wife transferred a total of $194,389.67 from four joint accounts. However, at trial, wife testified that she did not know whether one of the accounts, at South Valley Bank & Trust (South Valley),[1] was a joint account, because the name on the account was hers alone. When asked how many bank accounts the parties had at that particular bank, wife answered, " I had one and then we were both signers on it." Husband submitted an exhibit showing a handwritten deposit slip for that bank account, on which wife had written both husband's and wife's names. However, another exhibit included a bank statement for that account showing wife's name only. That bank statement shows that wife withdrew $55,873.92 from the account on August 9, 2010, approximately one month before the parties separated, and another document shows that the same amount of money was deposited into an account at another bank, in wife's name only, the same day.

After a six-day trial, the court issued a detailed letter opinion in which the court addressed, among other things, the division of the parties' multiple real properties and business interests. Regarding the credibility of the parties and the approach that the court took in dividing their property, the court noted:

" In sum, the court found it difficult to rely on either party's uncorroborated testimony. Further, their hostility toward one another during the trial was palpable. The court has no reason to believe that either would willingly abide by an order requiring some level of cooperation in unwinding their affairs. ...

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