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In re Marriage of Maldonado

Court of Appeals of Oregon

October 31, 2018

In the Matter of the Marriage of Laurie Kim MALDONADO, Petitioner-Respondent, and Perry Lee FREED, Respondent-Appellant.

          Argued and submitted January 31, 2018

          Lincoln County Circuit Court 142519 David V. Cramer, Judge.

          Gilbert B. Feibleman argued the cause for appellant. Also on the briefs was Feibleman & Case, P.C.

          George W. Kelly argued the cause and fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

          [294 Or.App. 584] Case Summary: Husband appeals from a judgment dissolving the parties' marriage, contending that the trial court erred in its award of spousal support and division of marital property. Husband contends that, in determining the just and proper division of the marital property and wife's equalizing judgment, the court committed legal error in failing to honor the parties' intentions to keep their property separate, and in failing to properly account for the parties' separate contributions to the acquisition of marital assets and premarital assets. Held: The Court of Appeals rejected without discussion husband's contentions relating to spousal support. But the Court of Appeals concluded that the trial court committed reversible error in determining a just and proper division of marital property for the purpose of determining wife's equalizing judgment. Specifically, the trial court erred in failing to value bank accounts as of the date of dissolution, and in determining that husband had not rebutted the presumption of equal contribution with respect to his separate funds used to purchase the "8th Court" house. The Court of Appeals remanded the case for reconsideration of the property division.

          [294 Or.App. 585] TOOKEY, J.

         Husband appeals from a judgment dissolving the parties' marriage, contending that the trial court erred in its award of spousal support and its division of marital property. We write to address only husband's contentions regarding the property division. Because the record reflects various legal errors by the trial court, we reverse the property division portion of the judgment and remand for reconsideration.

         Husband requests de novo review; however, this is not an exceptional case, and we therefore decline to exercise our discretion to review de novo. See ORS 19.415(3)(b) (court has discretion to apply de novo review in equitable actions); ORAP 5.40(8)(c) (court will exercise discretion to review de novo only in exceptional cases). Thus, in reviewing the judgment, we are bound by the trial court's findings that are supported by any evidence in the record. Kaptur and Kaptur, 256 Or.App. 591, 596 n 2, 302 P.3d 819 (2013). We state the facts in a manner consistent with the trial court's express and implied findings, supplemented with uncontroverted information from the record. Stuart and Ely, 259 Or.App. 175, 177, 313 P.3d 317 (2013).

         The parties lived together for eleven years before they married in July 2011. The dissolution trial began on March 8, 2016. The trial court issued a letter opinion on June 27, 2016, and entered a judgment of dissolution on October 13, 2016. During the parties' five year marriage, they had a five-month separation from November 2012 to April 2013, and a two-year separation from July 16, 2014, to the date of dissolution. The trial court found the duration of the marriage to be two and a half years. At the time of trial, husband was 58 years old and wife was 52. There are no children of the marriage.

         Husband came into the relationship with some assets, including real property, $8, 000 in cash, and $3, 000 in coins. Wife came into the relationship with an IRA valued at approximately $41, 000. At the time of the marriage, husband owned three investment properties, one investment account, and two bank accounts, as well as the cash and coins. Wife continued to own her IRA, then valued at [294 Or.App. 586] approximately $68, 000. From the beginning of their relationship, the parties agreed not to commingle their finances or assets. Thus, they did not acquire or own any joint property.

         Husband is a builder, in the business of buying homes to remodel and sell. Throughout the period of cohabitation and marriage, the parties lived in homes that husband was remodeling to resell. The parties lived primarily off of husband's earnings. Wife earned a small amount of income from work outside the home and occasionally contributed to payment of household expenses.

         During the first five years of the parties' cohabitation, husband also owned a cabinetry business. Wife worked part-time in the cabinetry business for two years as a paid employee. Also during the years of cohabitation, husband did remodeling for private clients. Wife testified that she made unpaid contributions to that business, by meeting with clients, helping husband shop for supplies, doing yard work and clean-up, and helping to rip out carpets, floors, and fireplaces.

         During the marriage, wife focused primarily on household responsibilities and yard work, and continued to provide some unpaid help in the business. During the parties' second period of separation, husband paid wife temporary support and continued to ...


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