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In re Marriage of Kasner

Court of Appeals of Oregon

February 6, 2019

In the Matter of the Marriage of James B. KASNER, Petitioner-Respondent, and Julie Anne KASNER, Respondent-Appellant.

          Submitted September 1, 2017

          Lincoln County Circuit Court 143186; David V. Cramer, Judge pro tempore.

          Julie A. Kasner fled the brief pro se.

          No appearance for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Wife appeals the trial court's order denying an ORS 107.452 motion to reopen her dissolution case to address an interest in real property allegedly concealed by husband in the course of the parties' underlying divorce proceedings. Held: Where neither the disputed asset nor husband's interest in it were omitted from the court's judgment distributing the parties' assets, the trial court was not required to reopen the dissolution proceeding.

         Affirmed.

         [296 Or.App. 55] DEHOOG, P.J.

         Wife appeals the trial court's order denying an ORS 107.452 motion to reopen her dissolution case to address an interest in real property allegedly concealed by husband in the course of the parties' underlying divorce proceedings. In March 2015, the court entered a judgment that dissolved the parties' marriage, distributed their debts and assets, and awarded wife spousal support. Wife sought to reopen the case in August 2016, but the court denied her motion, explaining that the property at issue had not been omitted from the judgment. Wife appeals that denial. See ORS 19.205(3) (authorizing appeal of an order entered after a judgment that "affects a substantial right"). Husband does not appear on appeal. For the reasons that follow, we conclude that the trial court was not required to reopen the parties' dissolution case despite wife's allegation that an asset belonging to husband had existed at the time of the judgment but was not "discovered" until sometime thereafter. As a result, the trial court did not err in denying wife's motion. We therefore affirm.

         Few facts from the underlying dissolution action are relevant to this appeal. Husband and wife married in 1994. Husband filed for dissolution in 2015. For seven of the last nine years of their marriage, the parties lived on a ranch property with husband's parents. The final two years of the marriage, the parties lived on the ranch without husband's parents, who by then were both deceased. The ownership of that ranch property-specifically, when husband became part owner of the ranch-was the focus of wife's post-judgment motion.

         At trial, husband testified that his parents had granted him a one-quarter ownership interest in the ranch through a 1992 trust agreement. Upon reviewing the agreement, the trial court concluded that, because husband's resulting interest in the ranch predated the parties' marriage in 1994, that interest was not a marital asset; accordingly, the court awarded husband's interest in the ranch [296 Or.App. 56] solely to him.[1] See ORS 107.105(1)(f) (governing property division at dissolution; distinguishing property acquired before marriage from property acquired during the marriage and applying a presumption of equal contribution only to the latter). The trial court observed, however, that its ruling as to husband's interest in the ranch meant that husband would receive possession and partial ownership of the marital residence, while wife would be left essentially "homeless." The court therefore found that, to be "fair and just," it would be equitable to award wife an equalizing sum of $10, 000 to partly offset that disparity[2] In March 2015, the court entered a general judgment reflecting those rulings.

         Wife filed a motion to reopen the dissolution case in August 2016. In her motion, wife asserted that, contrary to husband's testimony-and despite the 1992 trust agreement suggesting otherwise-she had recently learned from husband's sister-in-law that husband had not acquired his interest in the ranch as a beneficiary of the trust; rather, husband's parents had transferred the ranch property to husband and his siblings by deed in 1997, well after husband and wife were married. Wife contended that husband's interest in the ranch should therefore have been deemed a marital asset subject to the presumption of equal contribution and distributed accordingly. The trial court denied wife's motion to reopen the case, stating:

"DENIED. The [ranch] property was not omitted from the distribution. It is referenced by address and legal description in the General Judgment. Respondent was aware of the property at trial and had the opportunity to present evidence of the extent and ...

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