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In re Marriage of Stewart

Court of Appeals of Oregon

March 21, 2018

In the Matter of the Marriage of Betty Jane STEWART, Petitioner-Respondent, and Richard Wade STEWART, Jr., Respondent-Appellant.

          Argued and submitted August 17, 2016

          Lane County Circuit Court 151402815; R. Curtis Conover, Judge.

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

          Jeffrey E. Potter argued the cause for respondent. With him on the brief was Gardner, Potter, Budge, Spickard & Cascagnette, LLC.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge. [*]

         [290 Or. 865] Case Summary: Husband appeals a dissolution judgment, assigning error to the trial court's property division. Husband argues that wife's evidence was insufficient to rebut the presumption of equal contribution under ORS 107.105(1) (f)(C) as to three marital assets and that it was not just and proper to award wife those sums. Husband further argues that it was not just and proper to award wife amounts that she spent before the marriage in acquiring two properties that later became part of the marital estate.

         Held: The trial court's property division was within its discretion. The trial court did not err in finding that wife rebutted the statutory presumption with respect to the three marital assets because there was evidence to support its findings. By adopting wife's proposed property division, the trial court implicitly credited evidence that the couple had agreed to keep their earnings and personal expenditures separate and commingle only joint expenses, that the couple had agreed that wife would be paid back for paying down debt incurred to support husband's business, and that the source of the money used for that debt payment was wife's separate earnings and savings. It was just and proper for the trial court to award those sums to wife because no other considerations required a different result. It was also within the trial court's discretion to award wife her premarital investments in the two properties because a court could find that she did not intend to incorporate the premarital sums into the marital estate. Husband did not dispute that he agreed that wife would be able to recoup wife's original investment in one of the properties, and husband did not significantly contribute to the couple's equity in the other property.

         Affrmed.

         [290 Or. 866] GARRETT, J.

         Husband appeals a dissolution judgment, assigning error to the trial court's property division. He argues that the trial court erred in finding that wife rebutted the presumption of equal contribution with respect to three marital assets credited to wife and that it abused its discretion in awarding wife those amounts, along with two other nonmarital assets. We conclude that the trial court did not err with respect to the property division, and we reject husband's second assignment of error concerning the spousal-support award without written discussion. Accordingly, we affirm the trial court's judgment.

         Husband requests that we review the property division de novo, asserting that a final decision on appeal "would save the parties many months of uncertainty" and "would prevent the need to return to the trial court to reopen their litigation." Husband also points to the fact that, at the time of the hearing, husband had moved to Oklahoma, and wife was contemplating moving to Florida. We exercise our discretion to review a matter de novo only in "exceptional" cases. ORS 19.415(3)(b); ORAP 5.40(8)(c). Although concerns about judicial economy are pertinent when determining whether to exercise our discretion, the concerns raised by husband are not unique to this case, and, therefore, this case is not an exceptional one for which de novo review is warranted. Cf. Benson and Benson, 288 Or.App. 619, 622, 406 P.3d 148 (2017) (concluding that de novo review was warranted because the "concerns about judicial economy and the need to provide a final resolution to the parties" were "unique to [the] appeal").

         Because we decline husband's request, "we are bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record." Morton and Morton, 252 Or.App. 525, 527, 287 P.3d 1227 (2012). If the trial court did not make express findings, we assume "that the trial court found the facts in a manner consistent with its ultimate conclusion." Kotler and Winnett, 282 Or.App. 584, 597, 385 P.3d 1200 (2016). We state the facts consistently with those principles.

         [290 Or. 867] Wife resided in Florida when she met husband, and she moved into his apartment in Oregon in 1999. At that time, she owned a condominium in Florida. She also owned a certificate of deposit account (CD) with a Florida bank, and she later transferred those funds into a CD with Oregon Community Credit Union (OCCU), less some cash that she kept. In July 2000, wife purchased a home on Lasater Boulevard in Eugene (the Lasater residence), which eventually became the couple's marital residence. She paid the down payment and closing costs for the home. Wife refinanced the Lasater residence in 2009, and, at that time, she added husband to the title and as an obligor for the new mortgage.

         Also before the marriage, wife took out a mortgage to purchase a property on Linden Avenue in Springfield (the Linden property), which the couple used as a rental property. Wife put the title for the Linden property in husband's name. Wife paid the down payment and ...


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