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In re Domestic Partnership of Kirsten Kari Staveland

Court of Appeals of Oregon

December 5, 2018

In the Matter of the Domestic Partnership of Kirsten Kari STAVELAND, Petitioner-Respondent, and Michael Jon FISHER, Respondent-Appellant.

          Argued and Submitted December 5, 2017

          Multnomah County Circuit Court 16DR00887 Susan M. Svetkey, Judge.

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

          Robert T. Scherzer argued the cause and fled the brief for respondent.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary:

         Respondent Fisher appeals a general judgment of dissolution of a nonmarital domestic relationship and a supplemental judgment awarding attorney fees to petitioner Staveland. In respondent's first assignment of error, he argues that the trial court erred when it ruled that it was just and equitable to award petitioner half of the appreciation in value of respondent's house that occurred while she lived there with respondent. In a second assignment, respondent challenges the trial court's calculation of appreciation. In a third assignment, respondent argues that the trial court failed to adequately explain its attorney fee award to permit meaningful appellate review. Held: Although the trial court did not abuse its discretion in concluding that it was just and equitable to award petitioner half of the appreciation of respondent's house, the trial court erred in calculating the amount that the house appreciated because the court awarded petitioner appreciation that accrued after the parties separated. In addition, the trial court failed to adequately explain its attorney fee award to permit meaningful appellate review.

         [295 Or.App. 211] General judgment reversed and remanded for recalculation of the division of property; supplemental judgment vacated and remanded; otherwise affirmed.

         [295 Or.App. 212] GARRETT, J.

         Respondent Fisher appeals a general judgment of dissolution of a nonmarital domestic relationship and a supplemental judgment awarding attorney fees to petitioner. Respondent asserts three assignments of error. In the first assignment, he argues that the trial court erred when it ruled that petitioner Staveland was entitled to half of the appreciation in value of respondent's house (the Dickinson house) that occurred while she lived there with respondent. In a second assignment, respondent challenges the trial court's calculation of appreciation, arguing that the court erred by awarding petitioner appreciation that accrued after the parties separated. In a third assignment, respondent asserts that the trial court erred in awarding petitioner attorney fees without adequately explaining the basis of its award. For the reasons below, we reverse and remand the general judgment for recalculation of the division of property, vacate and remand the supplemental judgment, and otherwise affirm.

         Neither party seeks de novo review, ORS 19.415(3), nor do we conclude that it is warranted. See ORAP 5.40 (8)(c) (explaining that this court will exercise de novo review only in exceptional cases). Consequently, we are "'bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record.'" Schwindt and Schwindt, 290 Or.App. 357, 359, 414 P.3d 859, rev den, 363 Or. 119 (2018) (quoting Morton and Morton, 252 Or.App. 525, 527, 287 P.3d 1227 (2012)).

         The parties met in April 2011. In June of that year, respondent purchased the Dickinson house for $467, 500. Petitioner did not contribute to the purchase, and title was taken in respondent's name only. The parties moved in together at the Dickinson house later that month.

         When the parties moved in together, they talked about sharing living expenses. Respondent agreed to pay the mortgage, property taxes, homeowners' insurance, and some food expenses; petitioner agreed to pay for "everything else," including utilities, car insurance, and other food expenses. Overall, respondent paid more expenses than petitioner. Each party also worked to improve the house, including [295 Or.App. 213] painting rooms, tiling and carpeting floors, and removing a wall between rooms. Overall, respondent did the majority of the work on most projects, and some projects were completed by respondent alone. All materials for the improvements were paid for by respondent. With respondent's approval, petitioner made most of the decisions regarding the selection of furniture, color schemes, the arrangement of art, and other decorations.

         Meanwhile, the parties kept their respective incomes and financial accounts separate. The one exception was a joint Vanguard investment account. The parties carefully tracked their respective contributions to, and interest in, that account.

         Petitioner also owned a house on Ainsworth Street (the Ainsworth house), which she operated as a rental property during her period of cohabitation with respondent. Respondent held no interest in that property at any time. When the parties began cohabitating, the Ainsworth house was "underwater" (i.e., had a market value less than the outstanding mortgage). At all times, petitioner solely assumed the liabilities and responsibilities associated with the Ainsworth house, including mortgage payments, taxes, and the collection of rental income, which petitioner kept separate. Respondent contributed no money and minimal labor toward that property; on three occasions, respondent fixed a toilet, installed a stove, and helped tenants move out.[1]

         In December 2011, respondent proposed marriage. Petitioner believed that marriage would have negative tax consequences. Thus, instead of getting legally married, the parties held a ceremony at the Dickinson house that resembled a wedding but was not accompanied by legal action to change the parties' marital status. The parties distributed invitations that referred to the Dickinson house as "our house," and approximately 40 to 50 friends and family members attended, only some of whom understood that respondent and petitioner were not getting legally married. [295 Or.App. 214] Petitioner's father conducted the ceremony, and the parties exchanged rings and vows and hired a professional photographer and band. After the ceremony, the parties told at least some friends and acquaintances that they were "married."

         In March 2014, the parties' son was born. Petitioner assumed a majority of the childcare duties, although respondent also provided some daily childcare. Petitioner paid for direct childcare expenses like clothes, diapers, food, and medical care. Respondent contributed to those costs indirectly by sometimes writing checks to petitioner.

         In the fall of 2015, petitioner began to discuss separating from respondent. Respondent told petitioner that, if she was not going to be his partner anymore, she should start paying him rent. Petitioner suggested that she pay $1, 000 per month. The parties never acted on that ...


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