IN THE COURT OF APPEALS OF THE STATE OF OREGON
In the Matter of the Marriage of
Clackamas County Circuit Court
GREG P. CARLSON, Case No. DR05100670
Petitioner-Respondent A135925
Cross-Appellant,
and
LISANICOLE CARLSON,
aka Lisa-Nicole Carlson,
nka Lisa Nicole Miller,
Respondent-Appellant
Cross-R
APPELLANT'S COMBINED REPLY AND ANSWERING BRIEF ON CROSS APPEAL
Appeal and Cross-Appeal from Judgment of the Circuit Court
of the State of Oregon, County of Clackamas
The Honorable John B. Lewis, Reference Judge
The Honorable Steven L. Maurer, Trial Court Judge
Peter Bunch, OSB No. 942210 Helen C. Tompkins, OSB No. 872100
Angela M. Bentz, OSB No. 042479 Buckley LeChevallier P. C.
ZIMMER & BUNCH LLC Three Centerpoint Drive, Ste 250
680 Umpqua Bank Plaza Lake Oswego, Oregon 97035
Portland, Oregon 97258 Telephone: (503) 620-8900
Telephone: (503) 295-6191 Of Attorneys for Petitioner-Respondent
Of Attorneys for Respondent-Appellant Cross-Appellant Greg P. Carlson
Cross-Respondent Lisa Nicole Carlson
nka Lisa Nicole Miller
Charles D. Gazzola, OSB No. 882129
Gazzola & Hull, PC
720 SW Washington Street, Ste 2'10
Portland, Oregon 97205
Telephone: (503) 295-3425
Of Attorneys for Petitioner*Respondent
Cross-Appellant Greg P. Carlson November 2008
TABLE OF CONTENTS
Paqe
Table of Authorities..
Statement of the Case
1-13
Reply to Husband's Summary of Facts
Reply to Response to First and second Assignments of Error
13
15
Reply to Response to Third Assignment of Error""'
17
Conclusion on APPellant's RePIY
ANSWERING BRIEF ON CROSS APPEAL
18
Statement of the Case
Response to Questions Presented on Appeal 18-20
21
Summary of Wife's Argument ..'..'
24
Summary of the Facts
25
combined Answer to First through Fifth Assignments of Error
A. Standard of Review 25
B. Argument 26
31
Answer to Sixth Assignment of Error
A. Standard of Review 31
B. Argument 31
combined Answer to seventh and Eighth Assignments of Error 32
A. Standard of Review 32
B. Argument...,.... 32
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Error.......
Answer to Ninth Assignment of ..' .'......... 34
A. Standard of Review ""."'..34
B. Argument """"" 34
Conclusion...... ...... 35
TABLE OF AUTHORITIES
Paqe
CASES
Aites v. Porttand Meadows, \nc.,312 Or 376,823 P2d 956 (1991) .'.'........30
Beal and Beal, 282 Or 115, 577 P2d 507 (1978) "13, 14
Benson and Youngblutt, 141 Or App 458, 919 P2d 496,
rev den 324 Or 487 (1996) .... ...""'.'34
Culten and Cullen, P3d 15,2008, slip op at2,6-7).'...... 16
-App -, - -(Oct.
Gano-Ridge and Ridge,211 Or App 393, 155 P3d 84 (2007) .........' 30
Haguewood and Haguewood,292 Or 197, 638 P2d 1135 (1981)... '......"34
Kunze and Kunze,337 Or 122,92 P3d 100 (2004) '."'..26,27
Niman and Niman, 206 Or App 259, 136 P3d 105 (2006) . .'.'.34
Tomos andTomos, 165 OrApp 82,995 P2d576 (2000) -...25,31,32
Tsukamaki and Tsukamaki,199 Or App 577,112P3d 416 (2005) '."..'.....-28
Wallender v. Wallender, 126 Or App 614,870 P2d 232,
rev den, 319 Or 1 50 (1994) ..... "."' 13, 14
STATUTES
Page
oRS 19.415(3)
25,31,32
oRS 107.105(1Xf)
oRAP 5 55(2)
APPELLANT'S REPLY BRIEF
STATEMENT OF THE CASE
Replv to Husband's Summarv of Facts
ORAP 5.55(2) requires that "the respondent specifically shall accept the
ti appellant's statement of the case, or shall identify any alleged omissions or
inaccuracies, and may state additional relevant facts or other matters of record
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as may apply to the appeal[.]" Rather than comply with that rule, Husband
presents alleged facts that either are not supported by the citation to the record
or are grossly misleading. For those reasons, this court should entirely reject
and not consider in any manner Husband's summary of the facts. Wife will set
forth below a summary of Husband's alleged facts that are not supported by the
citations to the record, and distortions and mischaracterizations of facts that are
not supported by the record.
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1. Alleqed Fact. Both [parties] continued working in their prior occupations:
Husband grew his business, he co-owned since 1999 with his brother; he
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maintained his retirement and grew his savings and investments accounts; and
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l Wife worked as highly successful hairdresser and maintained her separate bank
fl" accounts. Husband made the house payments and maintained the home from
his separate funds. Tr. 49.
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Response. The record cited to consists of the examination of Dr. Trinh,
Wife's treating physician.
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Z. Alleqed Fact. ln her deposition for the Sears case, Wife admitted she
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could not describe what the company did or what position Husband held. Tr.
214-15.
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Response. The record cited to contains the following discussion:
,,Q. And do you recall at the time [of the March 3, 2005 deposition]
indicating that you were not exactly even sure how to
describe what The Carlson
Group does?
'A. No.
"Q. Now we're on page 9 of the March 3'd deposition' The
question
Your answer'
was asked of you, and what does your husband do for a living'
he,s self-employed. I'm not exactly even sure how to
describe what they do'
you recall saying
They're in the P O P industry, which is point of purchase. Do
that?
"A. but it was
I recall saying that in the sense that I know what they do,
hard for me to describe to other people what they do, so
that's what I was trying
to convey.
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"Q. And in response to a question wondering whether or not
your
he was the
husband was the president, you indicated that you believed
president, Do you recall making that statement?
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"A. Well, because --.
"Q. This is on Page 10, Lines 2 and 3 again of the March 3'd depo'
,,A. There was a time where [Husband] was controlling interest in the
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company, and at some point after, he and his brother or his
brother piped up and
from that equal point
decided that he wanted it to be equal. And so I didn't know
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if they were both called the president, the principal'
..Q'Soat|eastasofMarchof2005youWeren'tsure?
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"A. I don't think he goes - | don't think he went by president anymore, I
think he went by principal. They changed their roles around a couple times, too,
so --." f r.214-15.
3. Alleqed Fact. Husband kept separate from Wife his retirement account,
his checking and savings accounts, and his business and real estate interests.
Tr. 60.
Response. The record cited to does not support the alleged fact.
4. Alleqed Fact. Wife kept her separate bank accounts, her lntel stock
account, her car, and income. Tr.224.
Response. The record cited to does not support the alleged fact.
5. Alleqed Fact. Wife admitted she made no contribution to Husband's
separate accounts. Tr. 224.
Response. The record cited to contains an admission by Wife that she
did not contribute to Husban d's money market accounts, but offered to cash out
her lntel stock to put it into whatever investment necessary.
6. Alleqed Fact. Husbano chose not to add Wife's name to his accounts
t" and no interest in either Husband's home or business was transferred to Wife.
For example, Husband held an IRA with First Security, which he rolled into an
account with MKG. The date of marriage value of the account was $39,150. Tr.
65; Ex. 6.
Response. The record cited to does not support the alleged facts, except
to the extent that it sets forth the approximate date of marriage value of
Husband's lRA.
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7. Alleqed Fact. Husband had a checking account in his sole name at West
Coast Bank with a date of marriage balance of $13,119. Tr. 66; Ex. 5, pages 1-2.
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Response. The record cited to shows that Wife's name was put on the
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account. Husband could not recall when that occurred according to Tr. 66.
f"' 8. Alleqed Fact. In September 2001, Wife had back surgery and was
temporarily unable to work. Husband therefore placed her name on a credit card
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for which he was responsible and gave it to her to temporarily pay her expenses.
Tr. 60.
Response. The record cited to does not supporl the allegation that the
credit card was to "temporarily" pay Wife's expenses.
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g. Alleged Fact. Throughout the marriage, Husband continued to work to
grow The Carlson Group without contribution by Wife. Tr. 76.
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Response. The record cited to shows that Husband grudgingly admitted
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at trial indirect contributions by Wife to his business.
10. Alleqed Fact. At the same time he worked in his business, Husband did
a substantial share of the work to maintain the household. Tr. 69.
Response. The record cited to refers to Husband and Wife painting
certain rooms of Husband's premarital house.
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11. Alleqed Fact. During the marriage, Husband hired and paid contractors
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Response. Again, the record cited to refers to a period of time during the
parties' cohabitation. Moreover, the record cited to shows that both parties hired
il contractors.
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12. Alleqed Fact. Husband's contributions include painting, yard work and
landscaping, and he shared the housekeeping responsibilities including
vacuuming, washing dishes, after meal cleanup, and shopping for furniture for
the home. Tr. 79, 181 , 183, '1 84.
Response. Tr.79 refers to Husband's testimony regarding housecleaning
during the parties' cohabitation and who took care of the lawn during the parties'
cohabitation. Tr. 181 provides authority for the fact that both pafties cleaned up
after meals. The cited record shows that Husband testified Wife was primarily
responsible for a significant redoing of the landscaping on the marital residence.
In terms of coordinating with contractors, Tr. 183-84 shows that Husband testified
he believed the parties had a 50/50 role in working with contractors coordinating
aspects of the landscaping, and that he and Wife both worked on selecting
furniture.
13. Alleqed Fact. Husband was responsible for lawn mowing and taking out
the garbage. Tr. 79.
Response. The cited portion of the transcript refers to the period of time
of the parties' cohabitation.
14. Alleqed Fact. The parties had a housekeeper at both residences.
Response. There is no citation to the transcript in support of this factual
allegation.
15. Alleqed Fact. At times when Wife was recovering from her surgery and
was unable to do housework because of her back surgery or treatments,
Husband did both the majority of the housework and his job as president of The
Carlson Group. Tr.762.
Response'Thefactua|allegationiswhol|yunsupportedbythecitationto
read from Husband's deposition
Tr.762. Rather, at Tr, 761-62, counsel for wife
as follows:
"Q.Linel4,samepage,duringthetimethatyouweremarried'would
what's the definition of a
you describe [Wife] as a homemaker? Answer,
I would not' I would say
homemaker? someone who manages the household'
she-.lwou|dsayshe,sahomemaker,butlwouldsayshe'snotahundred
percent homemaker because of her health'
,.Question,soduringthepoint,overwhatperiodoftimehasherhea|th
Answer, since her first surgery' since
impacted her ability to be a homemaker?
Answer, we weren't married' That's
september 2001. so before that was she?
because of her health'
right. lf she wasn't a hundred percent of a homemaker
whatpercentagewou|dyousayshewasahomemaker?Answer,50to70
percent. And you were the other percent? Answer,
sure' How did you arrive at
thesepercentages,guess?That'spartofthequestion,guess.Answer,you
asked me and I came uP with them'"
16.A|teqedFact.Wifebecameaddictedtopainmedicationcausingherto
downtime when she was unable to
suffer depression and to have periods of
contribute to the household ' Tr'782'
Response.AtTr.T82,HusbandtestifiedthatWifebecamedependanton
painmedication,whichaffectedherdai|y.Shewantedtogetoffthose
and went there for treatment' Tr'
medications, lined up a treatment program,
781-82.
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17. Alleged Fact. During the marriage, Wife re-trained as a certified interior
designer to achieve her objective of being a self-employed interior decorator. Tr.
494-95.
Response. The record cited to does not support in any way the alleged
fact.
18. Alleqed Fact. Wife admitted telling Husband "once she got going" she
could make $60,000 to $80,000 as an interior designer, the career she had
previously trained for during the marriage. Tr. 501-02.
Response. The record cited to reads as follows:
"Q. Your husband testified that you had recently told him that you
thought you can make, I think he said, 60 to $80,000 a year. Do you recall
having such a discussion with him?
'A. Yes, we had a discussion of it, but that's not exactly what I had
said.
"Q. Why don't you give the Courl the context and then what actually
you said.
'A. [Husband] was yelling at me about things not going his way, I
guess, and he made the comment to me that at $8,500 a month in spousal
support, thai I have no incentive to go back to work.
"And I got upset and I said, are you kidding me? After everything I've
been through and since day one of it that's all I've talked about is getting back to
work and getting back to everything, and it just made me upset.
"And I said -- And then I started thinking about, once I get going and I get
to the point where I -- | couldn't do this on part time, but I was thinking ahead.
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Once I get going, if and when I can get to a - closer to or to a full-time position in
work, that what I could make would only probably be, you know, maybe a couple
thousand dollars difference from what I would be getting in spousal support, and
that's what I said, and that me deciding to sit around, it just isn't an option for me
and he knows that, and I just -- that was kind of the context of the conversation."
19. Alleqed Fact. ln wife's personal injury case, she was deposed
concerning her activities and any limitations resulting from her back injury. In
that deposition, she testified that she could not help with the move from Mara
Court to the West Linn home. Here, she testified she unpacked and put away
everything at the new home . f r.731-
Response. Wife testified as follows atTr'731:
.Q. So you were asked a question [at the March 2005 Sears
depositionl about your assistance. When you moved into your house were you
able to assist with the move by carrying boxes, furniture and things like that?
Your answer was no, right?
"A. Right.
"e. Did you help at all with the move? Your answer on that day was, I
packed things that I could pack, did not lift anything heavy or big, packed up my
things, personal things, I help orchestrate, you know, where the movers should
take things and that sort of stuff, right?
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"A. Yes.
"Q. So that's what you did related to the move?
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"A. Yes, and I also got boxes and packed boxes, I just didn't lift
anything heavy. Greg was working. I packed up the house. But did I move
heavy furniture, boxes, or anything like that, no."
20. Alleqed Fact. She told Sears she could do no gardening after the
September 2002 fall. Tr. 7 32.
Response. Wife testified at Tr. 732 as follows:
'Q, Question, and I know you talked about previously that you liked to
do some gardening, but you can't do as much hands-on gardening aS you used
to. Your answer, I can't do any. Was that an accurate statement then?
"A. I wasn't doing the gardening that I was used to doing.
"Q. Well, this says you can't do any. Does this mean you can't do any
or does this mean you couldn't do what you used to?
"A. They had asked me if I could do the hands-on gardening as I used
to, and I said I can't do any, meaning I can't do any of the major gardening or
landscaping stuff that I used to do, but could I plant little pots? Yeah, I could
plant little pots outside, I could do little things, but I wasn't digging up bushes and
moving trees and doing that type of thing. f r.732-33.
21. Alleqed Fact. She told Sears she was only able to lie around, but here
she testified she was painting the new home. Tr. 733.
Response. Wife testified as follows at Tr. 733.
"Q. You were apparently doing some painting?
"A. Yeah.
"Q. You were asked, and this is on Line 24,whatdo you typically do
during the day? What does a normal day look like to you? And then the top of
Page 186, your answer, depends on how I'm feeling. Could be anything from
lying in bed most of the day or sitting on the couch to trying to get a few things
done around the house, maybe running a few light errands. Was that an
accurate statement?
"A. Yeah."
22. Alleqed Fact. In her trial testimony, Wife said she vigorously worked on
decorating the home, including putting up window coverings and picking out
rocks from store bins and driving to Seattle multiple times to find decorative
flower pots. Tr, 735.
Response. The record cited to does not support the alleged fact.
23. Alleqed Fact. Husband claims that the court challenged Wife's credibility
citing to Tr. 55, lines 3-12.
Response. The record cited to does not contain the alleged discussion
between the courl and Wife. Rather, at Tr. 755-56, the following discussion
occurred:
"The Court: How have you been able to sit through these three days until
today? I mean, you were emotionally upset last time, you've had to get up.
Today is the first time you've had to get up, How have you been able - What's
going on? | got the impression from Ms. [Heatherly] or whatever that you
couldn't sit for a period of time.
"The Witness: Sitting is just very, very uncomfortable for me.
"The Court: Okay.
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"The Witness: And that is why I had to get up, because it just -- | just start
getting in a lot of pain, my legs go to sleep, and that's why I shift around in the
chair. I just get really, really uncomfortable, but | --
"The Court: Can you sit and cut hair? Clearly barbers are not something
you want to talk about because it's a different level thing, but I have seen barbers
that sit in these things and swivel around the base of the chair. Can't do that?
"The Witness: Part of the problem is your hands are in the air all day long.
"The Court: Aren't theY for a barber?
"The witness: Yeah, you're like this all day long and it puts a lot of
pressure up on your upPer back.
"The Court: Because of the sitting, okay'
"The Witness: So it wasn't even the standing that bothered me, it was
being like this and hunching over people."
24. Alleqed Fact. Wife sought to retain her own bank and stock accounts
without sharing with Husband, including her personal injury settlement proceeds
held in a CD worth $160,069. Ex. 103.
Response. Husband agreed that he was not making any claims as to
Wife's personal injury settlement proceeds. Tr. 117-18.
25. Alleqed Fact. Wife also sought to receive free of any interest of Husband
and at a zero attributable value, the Mercedes Benz automobile purchased for
her during the marriage and valued by her at $12,000. Tr.741-42; Ex. 1O3-
Response. Husband mischaracterized his Wife's testimony by not
providing context of her testimony. Wife said that the car had many problems,
including not running on more than one occasion, and that it would have some
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trade in value. Wife also said that she did not think she could sell the car with its
current problems. Both parties thought the car was a "lemon." ER 45, Tr.743-
44.
26. Allesed Fact. Husband asked the court to sell the family homes and split
the equity. Husband was the only person liable on the mortgage since Wife's
bad credit prevented her from obtaining a favorable mortgage. Tr. 74, 593.
Response. The alleged facts are either misleading or not supported by
the record. Specifically, Husband said he was not opposed to the court awarding
the family home to Wife as long as the debt was put in her name. f r.74.
Nothing on Tr. 593 supports Husband's alleged facts regarding his name being
on the mortgage because of Wife's supposed bad credit. Wife testified that the
parties put the home in Husband's name for credit rating purposes. Tr. 535.
27. Alleqed Fact. Wife sought indefinite spousal support of $8,500 per month
even though the evidence established Husband's gross salary was $14,500 per
month. Ex. 103.
Response. Husband's statement is misleading. ln 2005, Husband's
adjusted gross income was $73,092 per month. His company, The Carlson
Group, had retained earnings of $2,252,563 as of July 31,2006. Exs.8,9, 10,
135. ln addition, Husband receives numerous perquisites, such as medical and
dental insurance, a new car, vehicle maintenance and insurance, a gym
membership, and a cell phone. Tr. 101 ,187.
28. Alleqed Fact. The trial court awarded Wife more than one half of the
marital assets in spite of the uncontradicted testimony concerning the value of
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Husband's separate premarital assets and wife's lack of any underlying
contribution to The carlson Group's acquisition or appreciation. ER
50.
Response. ln fact, there was overwhelming evidence of wife's
Brief, pages
contributions as a homemaker during the marriage. See Opening
1O-i4. Further, the trial court in fact awarded Wife less than half of the marital
assets, by a substantial amount, which is a basis of wife's appeal.
Wife
Husband argues that the trial court erred in finding that Husband and
entered into a domestic partnership, which was later terminated by their
marriage. The parties lived together continuously in a relationship akin to
marriage between February 2000 until they were married in February
2002'
the
Husband even admitted at trial that he made statements to Wife during
domestic partnership that it was "like the two of them were married'"
Tr' 193'
The trial court correctly found that Husband and wife entered into a domestic
partnership.
Husband correctly cites to Beal and Beal,282 Or 115, 122, 577 Pzd 507
(1978), that "[a] division of property accumulated during a period of cohabitation
can be
must be begun by inquiring into the intent of the parties, and if an intent
found, it should control that property distribution." lntent can be express or
implied. In the absence of express intent, the courts look to a number of factors
to determine the parties implied intent. The court considers factors such as
how
the parlies held themselves out to the community, the nature of their
of each
cohabitation, joint acts of a financial nature, if any, and the contributions
pady financially and nonfinancially. Watlender v. Wallender, 126 Or App 614'
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is no express
617 , 870 P2d 232, rev den,319 Or 150 (1994). lt is only if there
"to determine
agreement that the court examines the evidence and inferences
what the parties implicitly agreed upon." Beal,284 Or at
122'
to share the
Husband argues the court should find that he did not intend
parties' property, despite his express statements to wife to the contrary'
intents and purposes'
Husband repeatedly told wife that they were married for all
look at what "we" have'
Husband told wife they were millionaires and told wife to
Husband even admitted he made statements to Wife during
their domestic
partnership that it was "like the two of them were married'" Further,
Husband's
that Husband told
actions to rater marry wife rend credibirity to wife's testimony
her they were married for all intents and purposes'
partnership cases in
This case is analytically different from other domestic
of the parties'
which the domestic partnership was terminated by a break up
relationship. Here, the domestic partnership was not terminated by a break
up,
without a
but by the parties' marriage. Husband's decision to marry Wife
premarital agreement is evidence of his intent to share the property acquired
a factor taken
during the domestic partnership equally with wife and should be
by
into consideration by the court in domestic partnership cases terminated
marriage rather than a domestic partnership terminated by a break
up' lf
property separate,
Husband intended to keep the parties' domestic partnership
Husband could have sought a premarital agreement to do so before
entering into
marriage. He did not do so'
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Replv to Response to Third Assiqnment of Error
The trial court reduced Wife's spousal support from $8,000 per month to
$2,000 per month over a period of seven years. On appeal, Wife seeks spousal
support of $8,500 per month indefinitely. Husband argues that the spousal
support set by the trial courl is too high and asks that Wife's spousal support be
terminated after just four years of support.
Husband provides no case law authority for his position that the spousal
support awarded to Wife was too high, nor does he cite to any case law to justify
his proposal that Wife's support should end after four years. Instead, Husband
argues that "[W]ife has significant earning potential as an interior decorator doing
all of the same activities she claims she was physically able to perform during the
marriage." This assertion is not supported by the evidence presented at trial. At
trial. Wife's treating physician testified he would not release Wife for any kind of
full time work. Kathryn Heatherly, the vocational evaluator, testified there was no
reasonable hope of Wife being able to sustain the pace of working and
functioning in interior design, Tr. 465. Husband presented no evidence to
contradict Wife's physician or the vocational evaluator regarding Wife's earning
potential. Ms. Heatherly's testimony is summarized in greater detail in Wife's
Opening Brief, pages '18-19, which is incorporated by reference.
Husband also argues that, contrary to the trial court's finding, the parties
did not enjoy a luxurious standard of living, but, instead, Wife recklessly spent
money during the marriage. To support his contention, Husband states that he
lived in a 1,200 square foot home before the parties married. There is no
question that the parties' standard of living increased during the marriage as
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Husband's business and income grew. Not only did the parties purchase a larger
home, but they made extensive renovations both indoors and outdoors to the
home, in addition to lavishly furnishing the home. Husband's assertions that Wife
recklessly spent money during the marriage is not supported by the evidence.
Further, the credit card bill Husband cites as an example of Wife's spending was
primarily for her attorney fees.
Husband also argues it would be "double-dipping" to give Wife half of the
marital assets and indefinite support. Husband is wrong about the facts and law.
First, Wife received far less than half of the marital assets because the trial court
did not equally divide the marital appreciation of The Carlson Group. Next, even
when marital assets are equally divided, spousal support is appropriate. For
example, in Cutten and Cullen, P3d (Oct' 15, 2008, slip op
-App
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a|2,6-7), each party was awarded about $2 million in assets. Husband's assets
consisted primarily of his business. The wife's assets consisted primarily of real
property and $791 ,171 of liquid assets. The wife was also awarded indefinite
spousal support. Thus, an equal division of assets does not preclude indefinite
support, nor is it "double-dipping." Spousal support is based on a number of
statutory factors, as set forth more fully in Wife's Opening Brief. Husband's
argument regarding "double-dipping" is misguided.
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CONCLUSION ON APPELLANT'S REPLY
modify the
For the reasons set forth above, on appeal this court should
trial court,s property division and award of spousal support
Dated this '19th day of November 2008'
Peter Bunch, OSB No. 942210
ZIMMER & BUNCH LLC
Attorneys for Respondent-Appellant
Cross-Respondent Lisa Nicole Carlson,
nka Lisa Nicole Miller
Angela Bentz, dSA flo. 042479
fi.
ZIMMER, & BUNCH LLC
Attorneys for Respondent-Appellant
Cross-Respondent Lisa Nicole Carlson,
nka Lisa Nicole Miller
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ANSWERING BRIEF ON CROSS APPEAL
STATEMENT OF THE CASE
Nature of the Proceedinq and Judgments
Wife accepts Husband's statement of the nature of the proceeding and
judgments at issue.
Statutorv Basis of Appellate Jurisdiction
Wife accepts Husband's statement of the statutory basis of appellate
jurisdiction.
Timeliness of the Appeal
Wife accepts Husband's statement regarding the timeliness of the appeal
Response to Questions Presented on Appeal
Wife responds to Husband's statement of the questions on cross appeal
as follows:
1. First Question Presented on Appeal. Where the parties shared
Husband's residence prior to marriage and each kept separate bank accounts,
and Husband kept separate his ownership in The Carlson Group, his real
property, his retirement account, his savings and investment accounts and his
good credit, did the trial court err in finding an intent to commingle assets
sufficient to justify awarding Wife half of Husband's pre-marital property?
Response. Except for the valuation of The Carlson Group, there was no
credible evidence that any of the date of trial assets could be traced to
Husband's premarital assets.
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2. Second Question Presented on Appeal. Based on the evidence of
separate finances above, did the trial court err in not giving Husband credit for his
separate premarital funds after this short four- year marriage?
Response. Given the testimony and evidence, the trial coutt did not err,
because Husband could not trace any of his "separate premarital funds" to
money or accounts existing as of the date of trial'
3. Third Question Presented on Appeal. Where Husband rebutted the
presumption of equal contribution by proving Wife made no contribution to The
Carlson Group, and Wife admitted her lack of contribution, did the trial court err in
nonetheless awarding Wife half of $1,399,200 for the value of The Carlson
Group?
Response. The trial court's disposition of The Carlson Group is the
subject, in part, of Wife's appeal. Wife did not admit that she made no
contribution to The Carlson Group. Wife made substantial contributions to the
marriage as a homemaker. The trial court found that those contributions allowed
Husband to focus on his business interest.
4. Fourth Question Presented on Appeal. Did the trial court err in failing to
give Husband credit in its property distribution for his payment of the $40,160
VISA credit card bill created by Wife in the month before trial?
Response. The VISA bill consisted almost entirely of attorney fee
charges, which the trial court took into consideration in its award of fees to Wife
in the post-judgment ORCP 68 proceeding.
5. Fifth Question Presented on Appeal. Where Wife sought to prove her
contribution to the marriage under the statutory "homemaker" standard by
)i
offering evidence she actively decorated the couple's residence including
shopping, painting, gardening, hanging window coverings and driving long
distances to obtain decorator items; but also sought to convince the trial court
she was disabled by a bad back and unable to work as an interior decorator; did
the trial court err in not attributing income to Wife?
Response. Husband did not brief this question.
6. Sixth Question Presented on Appeal. Where Wife, who is seven years
younger than Husband, left this four-year marriage with the long-half of the
marital assets totaling over $1.2 million and a career in which, by her own
testimony, she is capable of earning as much as $80,000 per year, did the trial
court err in awarding indefinite spousal support?
Response. Wife did not leave the marriage with "the long" half of the
marital assets; the evidence demonstrates, without a doubt or question, that
Husband received the majority of the marital assets, and received marital
property wofth more than $2 million than the marital property Wife received.
7. Seventh Question Presented on Appeal. Where Wife received more
than half the value of the marital assets totaling in excess of $1.2 million and
where she ran up over $40,000 in VISA credit card debt including payment to her
attorney in the month prior to trial which Husband paid, did the trial court err in
also awarding her $20,000 in attorney fees?
Response. The court did not abuse its discretion by awarding Wife a
I
portion of the attorney fees she sought after trial.
G
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Summarv of Wife's Arqument
Husband's first five assignments take issue with the following aspects
of
the property division: (1) the evidence does not support the trial court's finding
property";
that there "was no evidence of any intent to retain separately acquired
(2) the trial court erred in not awarding Husband premarital credits as to
certain
assets; (3) the trial court erred in awarding wife any interest in Husband's
business; (4) even if it was "just and proper" to award wife a
portion of the value
of Husband's business interest, the amount awarded by the trial court was too
much; and (5) the court erred in adopting the valuation of Husband's business
testified to bY Wife's exPert.
There was ample evidence to support the trial court's finding that the
jointly
parties did not intend to treat separately acquired assets as anything but
owned property. The court did not err in its finding'
Husband did not put on evidence to trace his premarital assets to assets
existing as of the date of trial. As an example, Husband complains that the trial
court erred in not awarding him a premarital credit for two savings accounts with
combined account balances of over $300,000 as of the date of marriage. Those
accounts did not exist as of the time of trial. Husband did not produce testimony
or evidence that would enable the court to trace those assets to accounts at
issue at the time of trial. Further, as to the most significant savings account that
existed as of the date of trial, Husband was not sure whether Wife's name was
on the account, and testified that its balance contained, in part, funds from his
employment compensation. Under all of the circumstances, the trial court did
not
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premarital credit for the assets with
err in declining to provide Husband with a
which Husband takes issue'
Next,HusbandcomplainsthatthetrialcourterredinitsdispositionofThe
than one half of the marital
carlson Group. The trial court awarded wife less
is, in part, the subject of wife's appeal'
appreciation in The carlson Group, which
UnderHusband'sproposalonappeal,wifewouldreceiveeithernothing'or'at
The carlson Group' That
most, 10 percent of the marital appreciation of
million' while wife
translates into a property award to Husband of about $3'75
Accordingly' Husband's
would receive assets worth less than $400'000'
complaint about the court including part of The
carlson Group in its property
distribution is not well grounded in law or fact'
in accepting the evidence
Husband also complains that the court erred
to the value of The carlson Group'
and testimony presented by wife's expert as
for the company in his
Wife,s expert used more current financial information
valuation opinion than did Husband's expert'
ln a valuation dispute' when the
trial court accepts one valuation over another,
that is an implicit finding that the
personprovidingthevaluationismorecredib|ethantheotherexpertorwitness.
not second guess the implicit
Absent a principled reason to do so, this court will
err in accepting the valuation for
credibility determination. The trial court did not
The Carlson Group offered by Wife's expert'
lnhisSixthAssignmentofError,Husbandcomp|ainsaboutthedisposition
of a VlsA bill. wife typically used the vlsA card to meet family expenses not
direct|ypaidbyHusband'Further,theV|SAbi||atissueconsistedprimarilyof
took into consideration
payments wife made to her lawyer, which the trial court
23
during the post-trial ORCP 68 hearing. The court did not err in its disposition of
this liability.
In his Seventh and Eighth Assignments of Error, Husband inaccurately
contends that Wife admitted she would be able to work as an interior decorator
and earn $60,000 to $80,000 per year within a reasonable time, that the parties
had a relatively modest lifestyle, and that Husband's gross salary is $14,000 per
month.
Wife testified that she hoped to be able to work at some point in the future.
However, Wife's doctors and her vocational expert were unanimous in their
opinions that Wife had no viable chance of working full time at any occupation, as
a result of her physical limitations arising from two back surgeries, as well as
other issues.
Further, the parties lived a lavish lifestyle, based on all of Husband's
sources of income, which include distributions, salary, a car, insurance, and other
corporate perquisites. Husband had adjusted gross income of $454,451 in 2003,
$611,259 in2004, and $877,109 in 2005, the year before trial. Finally, the
amount of spousal support Husband was ordered to pay to Wife is less than 10
percent of his adjusted gross income. Under all of these circumstances,
Husband's proposal that he pay Wife $4,000 per month for three years and
$2,000 per month for one year is inconsistent with the facts and equities of this
case.
Husband's finalAssignment of Error takes issue with the trial court's
award of attorney fees. Husband received more than $2 million in marital
property than did Wife. There is a gaping disparity between the resources
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available to the parlies. The trial court did not err in awarding a portion of the
attorney fees sought by Wife to her.
Summarv of Facts
Wife incorporates by reference the reply to the summary of facts set fotlh
in her reply brief. As was the case with his opening Summary of Facts, additional
facts set forth by Husband in his summary of facts are misleading and not
supported by the record in the following particulars:
1. Alleqed Fact. Wife completes training and becomes a "certified interior
designer" and sets up her business, "lnterior Expressions." Tr. 86-7, 541. Wife
received settlement from Sears of over $150,000. By the time of trial, the value
was $160,699.
Response. The record cited to does not support the alleged facts, except
that Transcript 85 through 87 supports the fact that Wife completed training at the
Heritage School of Interior Design in the spring of 2003.
2. Alleqed Fact. Wife has a second back surgery and according to her
attending physician, her condition gradually improves. Tr. 29.
Response. The treating physician's testimony was as follows:
"A. September of 2004, Dr. Makker did a second surgery to her spine.
"Q. What was the nature of that?
"A. Well, again, to remove that fractured screw and to redo the fusion
of the Ls-S1 level, and then clearing up more of the -- opening up more, So
taking out a little bit more of the lamina to free up a little bit more space as well.
'Q. Did you see her after that as well?
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"A. yes. There was some gradual improvement. And the next major
time we saw her was April of 2005 when she just got out of the hospital for some
pneumonia and respiratory failure. Actually she was in a pretty bad condition
respiratory-wise, but she recovered wellfrom that'
"And then we saw her a few months later in September of 2005. Her
depression, anxiety, unable to sleep and all of this increased more' She was
starting to have, she states, some marital -- problem with her marriage, and that
as well exacerbated her back pain. lt was slowly getting better, but I think with
the psychologicalimental stress of this whole situation that was beginning at that
state, the back pain increased along with it.
"We made some more changes with her psychotropic medication, put her
on some anti-anxiety medication, and got her with some counselor as well,
psychologist.
"Q. Has she had complaints of pain in her back and legs up to the
present time?
"A. Yes. And later that month in september, she came in to see me
and said that she really doesn't like being on all these pain medications that the
pain clinic had put her on and felt that sometimes made her feel worse, groggy'
mind not straight."
Combined Answer to First throuqh Fifth Assignments of Error
A. Standard of Review'
The standard of review is de novo, ORS 19.415(3), deferring to the trial
court's express and implied credibility findings. Tomos and Tomos, 165 Or App
82,87,995 P2d 576 (2000).
26
B. Argument.
Husband's first five cross-assignments of error take issue with the trial
courl's property division, which Wife will address in the order they appear in his
Opening Brief on Cross ApPeal.
Husband correctly contends that Wife sought a share of property the
parties acquired before their marriage, during the period of their domestic
partnership. Husband claims that, because his premarital property is not in the
class of "marital assets" under Oregon law, it per se should be awarded to him
free and clear of any claim by Wife. Husband is wrong about the law.
ORS 107.105(1)(f) distinguishes between marital property, which includes
property brought into the marriage, and marital assets, which consists solely of
property acquired during the marriage. lf the parties acquired the propedy at
issue before the marriage, then the court considers only what is "just and proper"
in all the circumstances in distributing that property.l Kunze and Kunze,337 Or
122, 134,92 P3d 100 (2004).
Here, the trial court considered the parties' intent in effectuating what it
considered to be a just and proper division of all of the parties' marital property,
which includes Husband's premarital property. There was ample evidence to
support the trial court's finding that the parties did not intend to treat separately
acquired assets as anything but jointly owned property. For example, the trial
court found that the parties treated Husband's premarital residence, and the
' As she did in her Opening Brief, Wfe contends that domestic partnership law applies to
unique facts of this case with respect to the division of the parties' premarital property. By
answering Husband's cross appeal, Wfe does not in any way abandon her arguments under
domestic partnership law.
27
proceeds of sale from that residence, aS "ours." ER 44-5. The parties' intent is
part of the "just and proper" analysis ' Kunze,337 Or at 141'
Nevertheless, Husband claims that the coutl erred by not giving him a
premarital credit for the date of marriage values of a small retirement account
and two bank accounts. There are several problems with Husband's position.
First, the record does not clearly show what happened to Husband's premarital
retirement account. lt is not listed in either the court's opinion letter or the
divorce judgment as an asset awarded to Husband. Husband's testimony
regarding this asset does not demonstrate that it existed in any form as of the
date of trial.
Similarly, Husband did not make a good record tracing the disposition of
his premarital savings accounts into the accounts that existed as of the date of
trial. As an example, Exhibit 5 consists of a date of marriage balance for a West
Coast Bank checking account and a Wells Fargo savings account. Wife became
an owner of the West Coast Bank checking account during the marriage. The
Wells Fargo savings account did not exist as of the date of trial. Ex. 18
Husband's other date of marriage savings account was held at MKG
Financial Group. Ex.7. At the time of trial, that account no longer existed. At
trial, Husband owned an account at Signator Investors, Inc. Ex. 3' Husband
believed that the balance consisted of an undetermined amount from the
premarital MKG account and from compensation earned during the marriage.
Husband was not sure whether Wife was an account owner. Tr. 103-04'
It is evident from these facts that Husband was not able to trace the
a
premarital assets at issue to those that existed at the time of trial' The only
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by the trial court,
reasonable inference from the evidence, apparently adopted
the premarital
was that Husband either dissipated or completely commingled
retirement and savings accounts. see Isuka maki and
Tsukamaki, 199 Or App
an extent that
577,586,112 P3d 416 (2005) (asset may be commingled to such
The court
it would be inequitable to divide it in any manner other than equally)'
did not err in failing to provide Husband with a premarital credit
for his retirement
of the date of trial'
account and two savings accounts, which did not exist as
regarding
Next, Husband takes issue regarding the trial coutl's decision
claims that the
his interest in The carlson Group. First, Husband erroneously
(acquisition and
trial court "specifically recognized that The Carlson Group
Brief on cross-Appeal
appreciation) was Husband's sole and separate property."
ln fact, the trial courl said that Husband "regularly stated
that [the
at 30.
contributions as a
businessl is ours.,' The court also specifically found that Wife's
44'
homemaker "freed [Husband] to attend to the business." ER
awarded to
Husband argues that the court must consider the other assets
wife in determining whether it is just and proper to award wife any of the
marital
this court
portion of the value of The carlson Group. Husband again claims that
should take into consideration wife's personal injury award,
which he admitted
should be awarded to her. He also points to wife's receipt of
a Mercedes, which
both parties thought was a "lemon." ER 45. Also included in Husband's
argument is the award to Wife of the equity in the family home, a
small amount of
does not
Intel stock, and alleged relief from a credit card debt. what Husband
worth
point out is that, under his proposed distribution, he would receive assets
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about $3.75 million, while Wife would receive assets with a value of less than
$400,000. That is hardly a just and proper result.
Husband also takes issue with the trial coutl's decision to adopt the
testimony and evidence of Ralph Arnold, Wife's expert, as to the date of trial
valuation for The Carlson Group, asserting that Mr. Arnold offered "no viable
rationale" for his opinion of value. First, the trial court found that the information
relied upon by Mr. Arnold was more current than that of Husband's expert, and
"was more reflective of the current value of the company." ER 45. Both experts
valued the company in April 2006. However, the company was experiencing
very rapid growth. For that reason, Mr. Arnold updated his valuation to take into
account information through July 31,2006. Tr' 330-52; Ex' 130.
Mr. Arnold put on considerable evidence in support of his revised opinion
of value. For example, keeping in mind that, at the time of trial, The Carlson
Group had been in business only a few years, Mr. Arnold said that the two and
one half years before trial provided a much better snapshot of what he called a
"normalized level" of the company. Mr. Arnold also noted that the company was
moving into much larger quariers, was opening a new office, and was hiring more
people. He observed that sales increased $5 million annually between 2003 and
the time of trial. Mr. Arnold indicated that the balance sheet for July 31, 2006
showed $1.5 million in cash and $1.4 million in receivables. Tr. 331-42; Ex.26.
Mr. Arnold said that the main difference between the appraisers was whether it
was appropriate to use income information for the company for the 12 months
before trial. Tr. 340-41. Mr. Arnold, and the court, determined that was the
correct approach.
30
Husband attempts to frame this matter in terms of credibility, and
complains that Mr, Arnold's testimony was "just not credible and should be
rejected by this court." Brief on Cross Appeal a|32. Husband is wrong about the
facts and the law. In a valuation dispute, when the trial court accepts one
valuation over another, that is an implicit finding that the person providing the
valuation is more credible than the other expert or witness. Absent a principled
reason to do so, this court will not second guess the implicit credibility
determination. Gano-Ridge and Ridge,211 Or App 393, 400, 155 P3d 84
(2007). Mr. Arnold was meticulous in his presentation of the facts and in the
formulation of his opinion of value. There is no reason to disturb the trial court's
reliance on his testimony and conclusions.
Husband next argues that, should this court determine it is just and proper
to include The Carlson Group in its division of property, Wife should receive only
10 percent of the marital appreciation. At trial, he argued that Wife should
receive no more than 20 percent of the marital appreciation. Tr. 179. Thus,
Husband did not preserve his argument that, on appeal, Wife should only receive
10 percent of the appreciation. Ailes v. Portland Meadows, lnc., 312 Or 376,
380, 823 P2d 956 (1991).
Finally, Wife adopts and incorporates by reference the discussion of this
asset set forth in her Opening Brief at pages 27-31 as to the merits of Husband's
cross appeal regarding The Carlson Group.
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Answer to Sixth Assiqnment of Error
A. Standard of Review.
The standard of review is de novo, ORS 19.415(3), deferring to the trial
court's express and implied credibility findings. Tomos and Tomos, 165 Or App
82,87,995 P2d 576 (2000).
B. Arqument.
In his Sixth Assignment of Error, Husband argues that the trial court erred
in "requiring husband to pay $40,160 for a VISA bill that wife accumulated in the
month before trial and in not giving husband a credit in the property distribution
for this payment." Brief on Cross Appeal, at page 32.
The evidence at trial showed that the parties regularly had high VISA bills,
which they paid monthly, Wife typically used the VISA card to meet family
expenses not directly paid by Husband. Tr. 779,791; Ex. 30. Further, the
particular VISA bill that Husband takes issue with consists primarily (about
$35,000) of payments Wife made to her lawyer. Ex.4. The trial court took those
payments into consideration during the post-trial ORCP 68 hearing. Attorney
Fee Hearing, Tr. 110-12. Because the bill at issue consisted primarily of attorney
fee payments, and because the trial court took those payments into consideration
in determining the amount of attorney fees it ultimately awarded to Wife, the court
did not err.
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A. Standard of Review.
The standard of review is de novo, ORS 19.415(3), deferring to the trial
court's express and implied credibility findings. Tomos and Tomos, 165 Or
App
82,87,995 P2d 576 (2000).
B. Argument.
Husband makes three extraordinarily inaccurate statements in his
"own
assignments of error and argument regarding spousal support: ('1) Wife's
testimony established her ability to work as an interior decorator and to earn
$60,000 to $80,000 per year within a reasonable time (Husband's
seventh
Assignment of Error); (2) "the parties lived a relatively modest lifestyle" (Eighth
Assignment of Error; and (3) Husband's gross salary is $14,000 per month (Brief
on Cross Appeal, Pages 34-5).
First, Wife's testimony about what she hoped to be able to do at some
point in the future did not establish anything other than her wish to become
independent once again. However, wife's treating physician, Dr. Trihn, and her
vocational expert, Katherine Heatherly, were clear in their prognosis for Wife. Dr"
Trihn explained that Wife has "significant hardware" in her back, which includes
four intact screws, two broken screws from a prior surgery, and a metal cage
wrapped around Wife's spine. Tr. 2B-9, 32-3,36-7; Exs. 161-62' Dr' Trihn also
said that Wrfe coutd nof return to her form work as a hair stylist. He said that she
could not return to work at all until she was stable in all aspects of her life and
that, even then, Wife would need to have something like a desk
job, with flexible
scheduling, because of permanent issues with her back. Tr. 33-35.
JJ
Another of Wife's physicians, Dr. Makker, would not issue any release for
Wife to obtain full time employment at any level. He described Wife as being
able to perform only modified sedentary work, which would include a limitation on
what she could lift - 10 pounds or less -, and the flexibility for Wife to alternate
between sitting and standing still. Dr. Makker did not expect there to be
improvement in Wife's functioning. Tr.454.
Wife's vocational evaluator, Ms. Heatherly, contacted several potential
employers to determine whether there were employment opportunities
compatible with Wife's skills and education. Based on all of the information she
received, Ms, Heatherly concluded that there was not any reasonable possibility
of Wife having a career in interior design. Tr. 465. Ms. Heatherly also looked at
a variety of other possible skilled, semi-skilled, and unskilled jobs, and concluded
that none provided the flexibility to meet Wife's needs and physical limitations.
f r.470-74.
Based on Wife's severe physical limitations, the trial court understood
what Husband does not: there is every possibility that Wife will not have the
physical ability to work at more than a "low level," in which case, as the trial court
acknowledged, the amount of stepped down support would be inadequate. ER
47.
Finally, Husband grossly mischaracterizes the resources with which he
has to pay spousal support, by claiming that he is paying Wife "more than one-
half' of his after tax salary. As Husband is well aware, the parties lived a lavish
lifestyle, based on allof Husband's sources of income, which include
distributions, salary, acar, insurance, and other corporate perquisites. In fact,
34
Husband had an adjusted gross income of $454,451 in 2003, $61 1,259 in 2004,
and $877,109 in 2005, the year before trial. The amount of spousal support
Husband was ordered to pay to Wife is less than one percent of his 2005
adjusted gross income. Wife adopts and incorporates by reference her
arguments as set forth in pages 31-7 of her Opening Brief for other facts and
arguments in opposition to Husband's cross appeal regarding spousal support.
Answer to Ninth Assignment of Error
A. Standard of Review.
Wife rejects Husband's statement of the applicable standard of review.
The standard of review for an award of attorney fees is abuse of discretion.
Haguewood and Haguewood, 292 Or 197 , 212, 638 P2d 11 35 (1981); Benson
and Youngbtutt, 141 Or App 458, 466, 919 Pzd 496, rev den 324 Or 487 (1996).
B. Arqument.
Citing to Niman and Niman,206 Or App 259, 136 P3d 105 (2006),
Husband argues that, because Wife received "substantial assets," she should not
be awarded any attorney fees and costs. Husband also argues that Wife should
not be awarded attorney fees and costs because she received "'the long half of
the assets passing with [the]judgment."' Brief on Cross Appeal, p 36.
First, Niman does not assist Husband's cause. There, the assets of the
parties were equally divided. Niman,206 Or App at271. Here, the trial court did
not equally divide the value of Husband's business, which was the parties' most
significant asset. At the time of trial, the total value of Husband's interest in The
Carlson Group was $3,532,000. Appreciation on the business during the
marriage totaled $2,332,000. The trial court awarded Wife $699,600 of that
35
amount. Thus, Husband leaves the marriage with nearly $2 million more in
assets than Wife, and with a huge advantage in his earnings. The court did not
abuse its discretion in awarding Wife $20,000 for her reasonable attorney fees
and costs.
CONCLUSION
For the reasons set forth above, this court should reject each Assignment
of Error raised by Husband in his Cross Appeal.
Dated this 19th day of November 2008.
Peter Bunch, OSB No. 942210
ZIMMER & BUNCH LLC
Attorneys for Respondent-Appel lant
Cross-Respondent Lisa Nicole Carlson,
nka Lisa Nicole Miller
ZIMMER & BUNCH LLC
Attorneys for Respondent-Appel lant
Cross-Respondent Lisa Nicole Carlson,
nka Lisa Nicole Miller
it
36
CERTIFICATE OF FILING AND SERVICE
I hereby cerlify that on this date I filed the foregoing APPELLANT'S
COMBINED REPLY AND ANSWERING BRIEF ON CROSS APPEAL by mailing
the original and 20 copies of this document by first class mail, sealed in an
envelope and addressed to:
Ms. Kingsley Click
State Court Administrator, Records Section
Supreme Court Building
1163 State Street
Salem, Oregon 97310
I further certify that, on this date, I served the foregoing APPELLANT'S
COMBINED REPLY AND ANSWERING BRIEF ON CROSS APPEAL by mailing
two copies of this document by first class mail, sealed in an envelope and
addressed to:
Helen C. Tompkins
Buckley LeChevallier, PC
Three Centerpointe, Ste 250
Lake Oswego, Oregon 97035
Of Attorneys for Petitioner-Respondent
Cross-Appellant Greg P. Carlson
Charles D. Gazzola
Gazzola and Hull
720 SW Washington Street, Suite 210
Porlland, OR 97205-3537
Of Attorneys for Petitioner-Respondent
Cross-Appellant Greg P. Carlson
DATED this 19th day of November 2008.
t.
r Bunch, OSB No. 942210
ZIMMER & BUNCH LLC
Attorneys for Respondent-Appellant
Cross-Respondent Lisa Nicole Carlson,
nka Lisa Nicole Miller