IN THE COURT OF APPEALS OF THE STATE OF OREGON
)
) Clackamas County
In the matter of the marriage of: Circuit Court Case
)
GREG P. CARLSON
)
) No. DR05-10-0670
)
Petitioner-Respondent, )
Cross-Appellant )
and ) cA 4135925
)
LISANICOLE CARLSON, aka Lisa-Nicole
)
Carlson, nka Lisa Nicole Miller.
)
)
)
Respondent-Appel lant, )
Cross-Respondent )
RESPONDENT'S AND CROSS-APPELLANT'S BRIEF
Appeal and Cross-Appeal from the Judgment of the Circuit Court
for Clackamas County,
and from the Supplemental Judgment for Attorney Fees and costs
The Honorable John B. Lewis, Reference Judge
The Honorable Steven L. Maurer, Trial Court Judee
Helen C. Tompkins, OSB No. 872i0 Peter Bunch, OSB No. 942210
Law Office of Helen C. Tompkins, pC Zimmer & Bunch, LLC
Three Centerpointe, Suite 250 680 Umpqua Bank Plaza
Lake Oswego, OR 97035 Portland, OR 97258
s03-620-8900 s03-29s-6191
Attomey for Respondent-Cross- Attorneys for Appellant- Cross-
Appellant, Greg Carlson Respondent, Lisa Miller
ti
lif,
SEPTEMBER 2OO8
TABLE OF CONTENTS
Page
Statement of the Case
Nature of the Proceeding I
Nature of the Judgment I
Statutory Basis of Appellate Jurisdiction 1
Timeliness of Appeal I
Response to Questions Presented on Appeal 1
Summary of Husband's Argument 2
Summary of the Facts J
I. Husband and wife cohabit but do not commingle J
il. Husband provides wife a credit card
when she cannot work 6
III. Husband and wife marrv 6
IV. Husband continues to grow his business 7
V. Husband also contributes to household chores 7
VI. Wife testifies about her activities 8
VII. Wife's conflicting testimony about her inability
to maintain gainful employment 10
VIII. Wife tells Sears she could not do any of the things
she claims to have done l0
IX. The Court notes discrepancy in wife's testimony 11
X. Evidence of wife's over-reaching tl
XI. Carlson Group Value 12
XII. The trial court decision 13
Response to First and Second Assignments of Error 13
Argument in Opposition to Assignments f{o. I and 2 t4
Response to Third Assignment of Error 18
Argument in Opposition to Assignment No.3 19
Conclusion on Respondent's Brief 22
CROSS-APPELLAI{T' S BRIEF
Statement of the Case
aa
Nature of the Proceeding and Judgments LJ
aa
Statutory Basis of Appellate Jurisdiction LJ
-aa
Timeliness of the Appeal z3
Questions Presented: 23
Summary of Argument 25
Summary of Facts 26
Cross-Assignm ents of Error 28
Argument on First, Second, Third, Fourth and Fifth
Cross-Assignments of Error 29
Argument on Sixth Cross-Assignment of Error 33
Argument on Seventh and Eighth Cross- Assignments 34
Argument on l{inth Cross-Assignment of Error 36
1n
Conclusion on Cross-Appellant's Brief 37
INDEX To SUPPLEMEI\TAL EXCERPT oF RECORI)
PAGE
Supplemental Judgment for Attorneys Fees and Costs
t-J
Petitioner's Obiections to Reference Judge's Initial Report 4-6
IV
TABLE OF AUTHORITIES
PAGE
Cases
Beal and Beal,
284 Or. 115, 577 P.2d 507 (1978) 14
Edwards and Edwards,
209 Or. App.555, 149 P.3d 196 (2006) 29
Fuernsteiner-Perin and Perin,
211 Or. App.23,153 P.3d 151 (2007) 29-30.31,32
Johnson and Johnson,
138 Or. App.462,909P.2d 185 (1996) 14
Kunze and Kunze,
337 Or.122,92 P.3d 100 (2004) 30,32
Lind and Lind,
207 Or. App. 56" 139 P.3d 1032 Q0A6) 15, 16
Olson and Olson,
218 Or. App. 1, 178 P.3d 272 (2008) t4
Niman and Niman,
206 Or. App. 2s9.136 P.3d 105 (2006) 36
Pinto and Smalz,
153 Or. App. 1,955 P.2d770 (1998) 16
Stice and Stice,
308 Or. 316, 779 P .2d 1020 ( 1989) 29
Terhaar and Polance,
171 Or. App. 112,14 P.3d 657 (2000) 1l
Timm and Timm,
200 Or. App.621, 117 P.3d 301 (2005) 16,30
Wallender and Wallender,
126 Ar. App. 614, 870P.2d232 (1994) l5
j
Statutes and Rules
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oRS 19.205 1 ?t
oRS 19.255 aa
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oRS 19.415(3) 29,33,34,35
oRS 20.075 35
f" oRS 107.105 lg ?1 ?r ??
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Respondent's Answering Brief and Cross-Appellant's Brief
STATEMENT OF THE CASE
Nature of the Proceeding
Respondent, Greg P. carlson, ("husband") agrees with the nature of the
proceeding.
Nature of the Judgment
The General Judgment of Dissolution and the Supplemental Judgment for
Attomey fees are both final judgments.
Statutory Basis of Appellate Jurisdiction
Husband agrees this court has jurisdiction by statute.
Timeliness of Appeal and Cross-Appeal
Husband agrees the appeal was timely filed. Husband's cross-appeal is also
timely.
11
'l
RESPONSE TO QUESTIONS PRESENTED
1. Where the sole evidence of intent to share assets during cohabitation came
I from wife's conclusory statements to that effect; but where the parties' actions
demonstrated their intent to maintain separate financial affairs including
I
separate checking, savings and retirement accounts and husband's separate
business and real estate interests; the trial coufi erred in awarding wife any
share of husband's premarital assets much less the "long harf'.
2. Where husband overcame the presumption of equal contribution regarding his
ownership in the Carlson Group by establishing through (i) his tesrirnony; (2)
wife's admission; and (3) relevant corporate documents; because u'ife did
nothing to either create or further husband's business he co-owned with his
brother prior to even meeting wife, the trial court erred in nonetheless
awarding wife over $699,000 for the value of husband,s business.
3. Wife's testimony allegedly supporting her "homemaker" status directly
contradicted her assertion that she was not employable in her chosen
occupation as a self-employed certified interior designer. Where the parties
were married only four years, the trial court erred in awarding wife over
$ I .2
million in assets and indefinite spousal support beginning with g8.000 per
month.
Summary of Husband's Argument
In this short term marriage, husband worked hard to grow his business which he
co-owned with his brother for several years prior to the marriage. Husband came
into the
marriage with a home, a car, aretirement account valued at nearly
$45,000, cash savings
of over $220,000 and his growing business worth $1.2 million at the time of the
marriage.
Wife came into the marriage with her successful career as a hairdresser, a car, a small
Intel stock account, bad credit and a bad back due to her youthful activities
as a gymnast
and two prior automobile accidents. The trial court decision awarding wife more than
half the marital assets after this four-year marriage is contrary to well-established
property analysis and is neither'Just" nor "proper" under the facts.
Wife sought to establish a domestic partnership for the two years prior to the
marriage when the parties cohabited. I{owever, there was no evidence
of commingling
of assets or actions consistent with an intent by husband to share his very substantial
and
separate financial resources. Rather, husband kept separate his checking,
savings and
3
retirement accounts and his real estate and business interests. The sole evidence of intent
was wife's assertion husband stated "all this is ours". This court should focus on the
parties' actions rather than on wife's self-serving testimony because husband's actions
are the best evidence of his intent to maintain his separate financial life prior to marriage.
Wife's testimony was inconsistent at best and shifted depending on the purpose
for which it was offered. For example, during the marriage. wife had a personai injury
case against Sears for an aggravation ofher pre-existing back injury suffered in a fall at
the parties' home. In her deposition taken for that case. u,hen the issue w.as the amount
of compensation Sears should pay her for her injurl', w-ife testified unequivocally that she
could not do housework. could do no gardening and ll,as limited in her daily activities.
From that case. and based on her testimony. wife received a substantial settlement
(r'aiued at the time of trial at $160.000) which she retained in these proceedings.
In contrast to her testimonv supporting her substantial personal injury reooverv
for the Sears case, for this case u'ife wanted to demonstrate her alleged contribution as a
''homemaker" spouse and therefore willingiy
contradicted her Sears deposition testimony
when she regaied the court with her many physical activities. tasks. chores and
accomplishments, even after she suffered her fall in late 20A2. Wife sought to use her
self-described vigorous activities to bolster her claim for a substantial share of husband's
business interests even though she admitted having made no contribution to the
acquisition or growth of the Carlson Group.
At trial of this case, in yet more contradictory testimony. wife raised and sought to
prove her inability to work even part-time to support herself due to her back problems
and sought to justify an aw-ard of permanent spousal support of over $8,000 per month
after a four-year marriage even though wife admitted she should
be able to eam $60,000
to $80'000 per year as a certified interior decorator. In seeking
to establish her claim of
disability, wife had to overcome all of her inconsistent testimony
concerning her many
physical activities, tasks, chores and accomplishments carried
out during the years prior
to trial' Wife boldly asserted her inability to do productive work even though her chosen
occupation - certified seif-employed interior designer
- inr.,olved the same tasks she
claims to have accomplished as the "homemaker" spouse
during the marriage.
Noting the stark inconsistency between wife's testimony about how
actively sire
performed interior decorating activities to prove she was "homemaker",
a on the one
hand. and her professed inabiiity to be self-supporting
through paying work because she
could not sit for long periods of tirne. the courl questioned
her:
Question: "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
uur. - - what,s
going on? I got the impression from
fwife's'ocational expert] that you
couldn't sit for a period of time.
Answer: "Sitting is just very, \'erv uncomfortable for me." Tr. 55. lines 3-12
This courl should conclude wife is capable of becoming
self-supporting as an interior
decorator performing all the same tasks she perfonned
at times during the marriage.
The trial court's property division is skewed in wife's favor
and shouid not be
increased' Husband should prevail on his cross-appeal below
and should first receive the
retum of all of his pre-marital assets ($363.513). his separate
interest in the Carlson
Group' This courl should modifi'the spousai support to a reasonabie
au,ard for a time
equal only to the duration of the marriage. Wife should
be encouraged to use her
substantial assets and her acquired certificate in interior design and her interior design
experience to become self-supporting.
Summary of the Facts
I. Husband and wife cohabit but do not commingle
Husband and wife began living together in February 2000 in husband's Mara
Court home that he purchased two years prior to meeting wife. (Tr. 59) Both continued
working in their prior occupations: husband grew his business he co-owned since 1999
with his brother; he maintained his retirement and grew his savings and investment
accounts; and wife worked as a highly successful hairdresser and maintained her separate
stock and bank accounts. Husband made the house payments and maintained the home
from his separate funds. (Tr. 49) Wife made no house payments and paid none of the
taxes on husband's home. (Tr. 68) Wife bought groceries and she contributed some
supplies and materials for the home. (Tr. 59" 70) Together they worked on the yard. (Tr.
70)
Husband kept separate from wife his retirement account, his checking and savings
accounts and his business and real estate interests. (Tr. 60) Wife kept separate her bank
accounts, her Intel stock account, her car and her income. (Tr. 224) Eachparty paid
their own personal expenses. (Tr. 6l)
Wife admitted she made no contributions to husband's separate accounts. (Tr.
224) Wife fuither admitted she made no contribution to the Carlson Group. (Tr. 589)
Prior to moving in to husband's home. wife sold her furniture and kept the cash. (Tr. 76)
The parties had no joint bank accounts prior to marriage. (Tr. 223) Husband
chose not to add wife's name to his accounts and no interest in either husband's home or
business was transferred to wife. For exampie, husband held an IRA with First Security
which he rolled into an account rvith MKG. The date of marriage value of the account
was $39.150. (Tr. 65; Ex. 6) None of wife's funds were in that account. (Tr. 65)
Consistent with his choice to maintain separate assets. husband had a savings account
with Wells Fargo bank with a date of marriage balance of $220,624 (Tr.67:Ex.5, p. 3)
and an investment account with MKG u,ith a balance of $103,739. (Ex. 7) 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. pp. i-2) No funds belonging to wife were in any of
these accounts. (Tr. 67)
II. Husband provides wife a credit card w.hen she cannot work
In September 2001, wife had back surgery and n'as temporarily unable to work.
Husband therefore placed her name on a credit card for which he was responsible and
gave it to her to temporarily pay her expenses. (Tr. 60)
III. Husband and rvife marry
Husband and wife married in February 2002. At the time of the marriage.
husband owned the Mara Court property with some equity; he held a retirement account
worth $39,250: a cash account at wells Fargo containing $220,624; and his MKG
investment account worth $i03,739. Wife had her hair-stylist career. an Intel stock
account, a car and bad credit from a prior relationship. She also had a bad back from her
youthful activities as a gymnast (Tr. 78) and from two automobile accidents prior to
meeting husband. (Tr. 78)
The parties continued to reside in husband's Mara Court property until August
2002 when they purchased a home in West Linn. The down-payment of $ 1 83,000 on the
West Linn house came solely from husband's savings accounts. (Tr.72) Husband
handled the purchase of the West Linn home and put the home and mortgage in his sole
name because of wife's bad credit. (Tr.71)
IV. Husband continues to grow his business
Throughout the marriage. husband continued to work to grow the Carlson Group
without contribution by wife. (Tr.76) By w'ife's admission. she did not contribute to the
business except for helping to paint an office once and to hang a mirror. (Tr. 589) In her
deposition for the Seats case, wife admitted she could not describe what the company did
or vv'hat position husband held. (Tr. 214-15)
V. Husband also contributes to household chores
At the same time he worked in his business. husband did a substantial share of the
rl'ork to maintain the household. (Tr. 69) When he purchased the Mara Court property
prior to the maniage, husband hired an interior decorator to decorate and update the
home. (Tr. 69) During the marriage. husband hired and paid contractors to work on the
home, including painters and cabinet makers. (Tr. 69, 70) Husband's contributions
include painting, yard work and landscaping. and he shared the housekeeping
responsibilities including vacuuming, u'ashing dishes, after meal clean-up, and shopping
forfurnitureforthehome. (Tr.79,181. 183, 184) Husbandwasalsoresponsiblefor
lawn mowing and taking out the garbage. (Tr.79) The parties had a housekeeper at both
residences.
At times when wife was recovering from her surgeries and was unable to do
housework because of her back surgery or treatments, husband did both the majority of
the household work and his job as President of the Carlson Group. (Tr.762) In general
8
during the marriage, her back pain at times limited wife's ability to do household chores.
(Tr. 84,762)
Wife became addicted to pain medication causing her to suffer depression and to
have periods of down time when she u'as unable to contribute to the household. (Tr. 782)
Husband encouraged wife to attend rehabilitation and accompanied her to Florida for that
purpose. (Tr. 782) Husband supported wife's decision to get help after she researched
the options for treatment. (Tr. 782)
VI. Wife testifies about all her activities, cast as "homemaker contributiono'
In wife's case in chiel she testified extensively about how actively she allegedly
contributed to the household maintenance - her "homemaker" testimonv. To
demonstrate her contribution, she testified she did all of the following activities:
Extensive interior decorating activities
Painting a kitchen, bedroom and dining room in the home (Tr. 516-17 , 544);
shopping for, selecting and installing window treatments (Tr. 524-25); shopping for,
selecting and transporting decorator items; purchasing, transporling and assembling
fumiture items, including an armoire (Tr. 517); removal of a laundry tub and purchased
replacement cabinets (Tr.521); supervising contractors, handymen and workers (Tr.
527); traveling to Seattle, St. Helens and elsewhere to select decorator flower pots. tile
and accessories (Tr. 551 ("went everywhere" in Portland to get matching tile for the
kitchen and brought home twenty pieces of tile to sample)); traveled back and forth to
fumiture stores to obtain furniture and to handle furniture returns (Tr. 539); unpacked and
put everlthing away when the parties moved to West Linn ( fr. 538); traveled to factories
I
to select items for the home (Tr. 546): and drove out to select light fixtures, picked up the
fixtures and transported them to the home (Tr. 553).
Extensive outside gardening snd landscaping
Shopped for and selected blocks for a retaining wall (Tr. 554); selected plant
design, developed plant lists, traveled to nurseries. picked up and hauled plants and
delivered them to the home (Tr. 560); traveled to rock quarries to select stones for the
yard, hand-picked the stones from bins. directed iandscapers where in the yard to place
the stones (Tr. 561-62); and perused magazines to select landscape designs and helped
create yard designs (Tr. 564).
Wife testified she supervised relocation of husband's hot tub to the parties' new
home. (Tr. 550)
Housekeeping wtfe shared with husband
The Mara Courl home was 1200 square feet and the parties had a housekeeper
initially. (Tr. 79) Wife urged husband to fire the housekeeper and she took over
cleaning at Mara Court. According to her testimony, she cleaned the house from top to
bottom in one hour and a half (Tr. 5 14); both parties prepared meals and cleaned up (Tr.
79,514); wife did laundry (Tr. 14): she picked up dry cleaning (Tr. 515); she did grocery
shopping (Tr. 518); both parties got on their hands and knees and scrubbed the deck at
Mara Court (Tr. 522); and both parlies cleaned and organized the garage (Tr. 522).
Wife kept the family dogs on a rigorous regime: bathed the dogs with three
different shampoos, gave the dogs injections and trained them. (Tr. a89) Both parties
helped with cooking and cleaning for parties. (Tr. 574)
Wife testified she cleaned the kitchen every day. (Tr. 583)
10
VII. Wife's conflicting testimony about her inability to maintain gainful
employment
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) Wife admitted telling
husband "once she got going" she could make $60.000 to S80,000 as an interior designer.
the career she had previously trained for during the marriage. (Tr. 501-502) It is still her
intention to do so. (Tr. 503) Wife is focused on efforts to become self-supporting
through her interior design training:
"I would like to get into interior design. self-employed, so I have some control
over my schedule. It's something that I enjoy and I feel like I n'ould be good
at and able to do well. I have every intention of trying to get back to work on
some level." (Tr. 494-95\
VIII. Wife tells Sears she could not do any of the things she claims to have done
In wife's personal injury case. she was deposed concerning her activities and any
limitations resulting from her back injury. in that deposition, she testified she could not
help with the move from Mara Court to the West Linn home. (Tr.731) Here she
testified she unpacked and put everything away at the new. home. (Tr. 731) She told
Sears she could do no gardening after her September 2A02 fall. (Tr.732) She told Sears
she was only able to lie around. but here she testified she was painting the new home.
(Tr. 733) In her trial testimony, wife said she vigorously u'orked 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)
Wife admitted much of what she did on the West Linn home is what cusromers
would pay her to do as an interior decorator. (Tr. 72S)
IX. The Court notes the discrepancy in wife's testimony
After listening to wife's testimony concerning her inability to work because of her
inability to sit for periods of time without frequent breaks. the court challensed her
credibility:
Question: "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? I got the impression from fwife's vocational expert] that you
couldn't sit for a period of time.
Answer: "Sitting is just very, very uncomfortable for me." (Tr. 55. lines 3-12)
X. Evidence of wife's over-reaching
In this short four-year marriage. wife entered the marriage w,ith a hair-stylist
career, a c,ar, an Intel stock account and minimal cash. Her proposed distribution sought
assets of over $2 million, including the 5,000 square foot family home in West Linn with
equity of $349,606, all of husband's retirement account, including the pre-marital
portion, all of the parties' investment accounts, and all of husband's money market
accounts. (Ex. 103; Wife's UTCR 8.010 form)
She sought to retain her own bank and stock accounts without sharing with
husband, including her personal injury settlement proceeds held in a CD worth $160,699.
(1d.) Wife also sought to receive free of any interest of husband's and at zero attributed
value, the Mercedes Benz automobile purchased for her during the marriage and valued
by her at $12,000. (Id.;'k.741-42)
Wife asked the court to award her the 5.000 square foot family home. (Tr. 593;
101) Husband asked the court to sell the home and split the equity. (Tr.74) Husband
I2
was the only person liable on the moftgage since w.ife's bad credit prevented her from
obtaining a favorable mortgage. (Tr. 593) At trial, wife wanted the court to award her
the home but to require husband to remain liable on the mortgage for at least three years
and as long as five years. (Tr. 593, 758)
Wife wanted husband's retirement account in its entirety (Tr. 594); husband's
Fidelity account (Tr. 594);the Signator account with a balance of $193,805 (Tr. 594);
and husband's money market account of $76,331 (Tr. 599). She also wanted to keep her
personal injury settlement of over $160,000 (Tr. 599); her Intel stock account (Tr. 600);
and she her Mercedes Benz automobile without attributing any value to it even though
she testified it was worth $12,000 (Tr. 601).
Wife's Uniform Support Affidavit listed monthly expenses of $12.500, including
her retention of the 5,000 square foot family home rvith monthly payments of $2,300,
$800 per month for clothing, $600 per month for upkeep on her Mercedes Benz and
$1i 00 per month for food for herself. (Ex. 1 03) 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; Wife's Uniform Support Affidavit)
XI. Carlson Group Value
Wife's valuation expert, Ralph Amold, opined in April, 2006 that the Carlson Group
was worth 52.564 - $2.91 7 or an average of $2.72 million. (Tr. 361-62) In fact, he and
husband's valuation expert, Greg Gilberl agreed on the value as of April, 2006. (Tr.
268,360) Between April, 2A06 andhis trial testimony in September,2006,Mr. Amold,s
valuation of the Carlson Group increased by $600.000 to $1,000,000 or an average of
30%. (Tr.269) Thus, by the time of trial in September, 2006, Mr. Arnold testified the
t.
IJ
company's value was now $3,532.000, up from $2,720,000 in the intervening months.
(Tr. 331, Ex. 130) The trial court decision adopted Mr. Arnold's value for the Carlson
Group of $3,532,000. (ER 49)
XII. The trial court decision
Husband came into the marriage with substantial assets including a home, a car,
checking, savings" investment and retirement accounts and a one-half interest in the
Carlson Group. In contrast, wife came into the marriage with a career as a hair-stylist, an
Intel stock account, a car and cash from the furniture she sold.
The trial couft awarded n'ife more than half the marital assets in spite of the un-
contradicted testimony concerning the value of husband's separate pre-marital assets and
wife's lack of an), contribution to the Carlson Group acquisition or appreciation. (ER 50)
The court also awarded wife indefinite spousal support at substantial amounts. beginning
at $8000 per month out of husband's gross salary of $14,500. (ER 42-43)
The trial court ordered husband to pay the $40,160 balance on the VISA bill
created by wife's spending in the month before trial and then failed to give husband
credit in tabulating the property distribution for his assumption of the liability. (ER 50)
Response to First and Second Assignments of Error
Wife's evidence was insufficient to estabiish the existence of a domestic
partnership or that the Carlson Group was integrated into the shared finances through
commingling. Rather, wife candidly admitted she had nothing to do with either the
acquisition or appreciation of the Carlson Group even after the parties married. Prior to
the marriage, husband kept separate his separate assets including checking, savings,
investment and retirement accounts and his real estate and business interests. The trial
14
court error was not in awarding wife an insufficient share but in aw'arding wife ANY
share in the Carlson Group. (See Cross-Assignments of Error No, 1-4. below.)
Preservation and Standard of Review
Husband agrees the issues are preserved and that review is de novo. As ts
relevant here, this court defers to the trial courl's express and implied credibility findings.
Olson and Olson,218 Or. App. 1.3, 178 P.3d272 (2008)
Argument in Opposition to Assignments No. I and2
The trial court erred in concluding. if it didl. that the evidence supported a finding
of a domestic partnership. Husband challenges that finding in his cross-assignments of
error below.
To prove the parties intended to share equally all of husband's substantial and
separate assets. wife had to demonstrate a "mutual understanding betu.een the parties".
.Iohnson and .lohnson, 138 Or. App. 462, 466.909 P.2d 185 (1996) Here. wife only
offers her belief about what husband intended, but husband's actions are inconsistent
with any intent to share equally his substantial and separate assets.
"fAl division of property accumulated during a period of cohabitation must be
begun by inquiring into the intent of the parties, and if an intent can be found, it should
control that property distribution;' Beal and Beal,284 Or.115.122 577 P.2d 507 (1978)
Joint acts of a financial nature provide evidence of an intent to share equally. 284 Or. at
' The trial couft record on this point is unclear and inconsistent. On de novo revieu,. this court should
determine there was a period of cohabitation but no domestic partnership.
12 2 The court's distribution should reflect the express or implied intent of the parties.
Id.
Wife seeks a share of husband's ore-marital and marital business interests while
candidly admitting she made no contribution to the Carlson Group either before or during
the marriage. Indeed, in her Sears deposition, wife testified she could not describe what
husband's company did or what title her husband held in the company.
The best evidence of the husband's intent to share his separate assets is his
actions. Lind and Lind,207 Or. App. 56, 67,139 P.3d 1032 (2006). There the court
held: "Intent, then, depends not on what a spouse might privately contemplate or even
publicly declare; it depends on how a spouse acts, tltat is, on what the spouse's
'treatment' of the asset 'demonstratefs]'". 207 Or. App, at 67 (Emphasis original).
This court should look for husband's intent not in what wife says husband meant.
but rather in what husband did, in how he treated his separate assets. Lind. Husband
took no action during the cohabitation period to incorporate his separate assets or to gift
half of his assets to wife. Husband never took any action consistent with wife's assertion
he meant to share everything with her prior to their marriage. For example, with respect
to the Carlson Group, husband took no steps to transfer any interest to wife. Rather,
husband kept his individual assets separate without exception and the parties each paid
their own expenses. In contrast to other cases, here there were no joint acts of any
financial nature during the cohabitation, no shared bank accounts. (Wallender and
Wallender,126Or. App. 614, 617,870P.2d232(1994) (Court finds intentto share
assets where the parties commit joint acts of a financial nature such as shared bank
accounts.)
16
Husband's ownership in the Carlson Group, his bank, stock and retirement
accounts were not shared with wife prior to marriage and thus the evidence is clear the
parties did not intend to share assets during the cohabitation period. Based on all of the
evidence recited above, there was no commingling of the Carlson Group, no intent to
consider it anlthing but husband's separate property. The sole contrary evidence, wife's
self-serving statements to the effect that husband told her things were "ours" not "his" are
insufficient to counteract the better evidence of intent demonstrated bv husband's actions.
Lind, 207 Or. App. Ar 67.
Wife's claim to half of the asset values from the time of cohabitation until
marriage is not supported by the facts or the law. A property's appreciation during
cohabitation but before marriage is not a marital asset. Timm and Timm,200 Or. App.
621,628-29,117 P.3d 301 (2005) The growth of the Carlson Group from February 2000
until marriage is husband's sole, separate property and should not be divided. As
demonstrated below, the marital appreciation is not subject to division because husband
rebutted the presumption of equal contribution. Wife knew little about the company's
business or husband's role in the business even after marriage. Wife admitted she made
no contribution. She should be bound by that admission.
During the period of cohabitation. husband kept separate all of his accounts and
his ownership interest in the Carlson Group. The evidence establishes the parties had no
shared bank accounts and husband did not intesrate anv of his ownership interests into
the family finances.
Pinto and Smalz, 153 Or. App. 1, 955 P .2d 770 (1998), cited by wife, is readily
distinguishable. In Pinto, the parties had a 10-year relationship in which they purchased
I7
real property together, sharedjoint banking accounts, paidjoint living expenses from an
account to which both contributed their income. The issue in Pinto was w'hether, after
contributing to down-payments and monthly payments on the parties' shared residences,
the female partner should receive some share of the equity in the residence. This court
easily answered that question in the affirmative because her financial contribution was
"substantial".
Here. in contrast, wife asks this court to infer an intent by husband to grant her a
pre-marital share of the Carlson Group lr'orth roughl5'one-half million dollars in the
absence of a scintilla of evidence of any act by husband demonstrating this alleged intent.
Husband is a successful businessman and had he intended to sive r.l'ife half of his
company during their cohabitation, he could have done so. The fact that he did not is
clear evidence he had no such intent demonstrated by his failure to take any action
consistent with wife's nosition.
The evidence cited above makes clear that, even after they married, husband
intended that the Carlson Group was husband's soie and separate property. acquired and
enhanced through no contribution on wife's parl. Wife readily admitted her lack of any
contribution. It would be error to aw'ard n'ife any share of the Carlson Group, but
particularly so based on the absence of any evidence that husband, as co-owner of the
Carlson Group intended to grant wife a half interest in his stock prior to marriage.
Wife sought to establish her claim to the Carlson Group by demonstrating her role
as homemaker. The evidence instead established that both parlies shared the household
responsibilities and that. at times, wife's back problems prevented her from doing
housework at all. Husband rvas both wage-eamer and household worker. See Terhaar
18
and Polance, 171 Or. App. 112. 177 , 74 P .3d 657 (2000X"The fact that she may have
washed the dishes or mowed the lawn more frequently than did husband does not
necessarily make her a homemaker within the meaning of the statute.")
Finally, wife argues it would be 'Just and proper" to award her the pre-marital
appreciation in the Carlson Group. As husband argues below, wife leaves this short four-
year marriage with substantially more in assets, economic opportunity, career choice and
security than when she entered. Wife began with a hair-stylist career, a car, an Intel stock
account. bad credit and a bad back. Under the existing distribution, she leaves with
$7,072,552 in marital assets plus $1 60,699 from her personal injury award received
during the marriage, for atotal in assets of $1.233.251 and indefinite spousal support
beginning at $8.000 per month.
Husband agrees this distribution needs to be adjusted under a'Just and proper"
analysis, but not in wife's favor.
The trial court award to u'ife of any share of the Carlson Group should be
reversed on husband's cross-appeal. If the court concludes it would be 'Just and proper"
to award wife some share of the Carison Group, the share should be limited to husband's
offer of 20o/o of the marital appreciation of the Carlson Group and spousal support should
be eliminated.
RESPONSE TO THIRD ASSIGNME]\T OF ERROR
Husband agrees the trial court erred in its award of spousal support. Instead of
increasing the award. however. this court should eliminate that portion of the award that
provides indefinite supporl in view: the short-term marriage; wife's re-training and
career opportunities as an interior decorator earning $60,000 - $80,000 per year; and in
19
view of the substantial property award she received. Under the existing distribution, u'ife
leaves this four-year marriage with over $ 1.2 million in assets and indefinite support.
PRESERVATION AND STAI{DARD OF REVIEW
Husband agrees the issue is preserved and the standard of review rs de novo.
ARGUMENT ON ASSIGNMENT NO.3
Wife came into the marriage w.ith few assets and with a career as a hair-stylist.
She had bad credit due to a prior relationship and a bad back due to her youthful
gymnastics. Under the existing distribution. wife left the short marriage with over $1.2
million in assets and two career options - hair-stylist or certified interior designer.
The factors set forth in ORS 107.105(1) (d) justify terminating spousal support at
four years post-dissolution, which matches the length of the marriage. The parties were
married for four years, w-ife is seven years younger than husband and wife has significant
eaming potential as an interior decorator doing all of the same activities she claims she
was physically able to perform during the marriage. Contrary to the trial court finding.
the parties did not enjoy a luxurious standard of living. There was testimony the couple
took some trips but there is no evidence of an extravagant lifestyle though wife "ran up"
the parties' joint credit card account to over $40,160 in the month before trial. Her
reckless spending does not equate to proof of an extravagant lifestyle during the marriage
but only substantiates her over-reaching in this dissolution.
Husband's pre-maritai assets demonstrate his frugality and savings. He lived in a
modest 1200 square foot home and had saved substantial sums toward retirement and to
provide for his future. In contrast. wife amassed $40,000 in debt just prior to trial and
20
spent more of the family income than husband found comfortable. The record establishes
Ir
her spending was a contentious issue in the marriage.
Wife retained the parties' home in West Linn and husband left the marriage
without a residence even though he owned his own home prior to meeting wife. Wife
was living in West Linn, driving a Mercedes Benz and asking the court to allow her
$12,500 per month to live on, including $1100 per month for her food and $800 for
clothins.
Again, contrary to the trial court finding, the parties did not travel extensively
while married. The evidence was they traveled to Las Vegas, Florida and Hawaii and
planned to go to Europe, but canceled due to wife's health. This pattem is not unusual
given that husband's hard work generated a good income, the couple had no children and
occasionally husband was able to tack on a pleasure trip with a business trip. The trial
court was wrong to conclude this (or any of the evidence) established an extravagant
lifestyle to which wife became entitled. Wife's overspending was an issue in the
marriage and this court should treat it as such. not as a mandate to provide wife with an
unfair share of the marital assets.
Wife has health challenses. As she testified. she has had back issues all of her
adult life. Wife came into the relationship with a bad back from her youth as a gymnast
and from two automobile accidents. Wife would live with a fragile back whether or not
she had married husband. As a result of this mamiage, wife now has substantial assets
I
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(well more than $1.2 million) which she can preserve and apply toward her support. She
may not be able to afford to spend $12,500 per month to live or to keep the 5,000 square
ir
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foot home by herself, but she will be well cared for and secure if she manages her
resoulces.
Although the length of the marriage is not the only factor for this court to
consider, it is one relevant factor. ORS 107.105(1Xd). Here the parties were married a
short time and wife's receipt of a substantial property settlement means wife has already
benefited from husband's high eaming capacity through her share in the marital estate. It
would be unjust, i.e. "double-dipping"" to give wife both half of the marital assets and
indefinite support. For his part, husband has been ordered to pay over half of his monthly
income to wife and to continue to support her indefinitely.
The trial court explicitly challenged wife's credibility about her inability to work
because she was unable to sit for periods of time. (See exchange quoted above). Wife
demonstrated in the three days of trial that she could, in fact, sit for long periods. Wife
also demonstrated through her trial testimony that she can work as an interior decorator.
Shortening of the support period w'ill encourage wife to adopt a realistic approach to her
lifestyle and living expenses and to become self-supporting. At age 37, wife has a long
life expectancy and husband should not be required to become the guarantor of her
lifestyle choices after this short marriage.
22
Conclusion on Respondent's Brief
The trial court's judgment should be affirmed or, as discussed below in
husband's cross-appeal, the property distribution and spousal support obligations should
be reduced to achieve a'Just and proper" distribution under the facts.
Respectfully submitted this 25'n day of September, 2008
. TOMPKNS. PC
Attorney for Respondent-Cross-Appellant
/.J
CROSS-APPELLANT' S BRIEF
Nature of the Proceeding and Judgments
This is a dissolution proceeding. The General Judgment and the Supplemental
Judgment for Attorney Fees are both finaljudgments.
Statutory Basis of Annellate Jurisdiction
This court has jurisdiction pursuant to ORS 2.516 and ORS 19.205.
Timeliness of the Appeal
The trial court General Judgment rl'as entered on May 16,2007 . Wife filed her
Notice of Appeal June 7, 2A07 . Husband filed his Notice of Cross-Appeal June 13,2007 .
The trial court Supplemental Judgment for Attomey Fees was entered October 2,2007 .
Husband filed his Amended Notice of Cross-Appeal October 23,2007 . This Cross-
Appeal is thus timely pursuant to ORS 19.255.
Ouestions Presented:
1. 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 justiS' awarding wife half of
husband' s pre-marital property?
2. Based on the evidence of separate finances above, did the trial court err in not
giving husband credit for his separate pre-marital funds after this shorl four-
year marriage?
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J. Where husband rebutted the presumption of equal contribution by proving
wife made no contribution to the Carlson Group, and wife admined 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?
4. 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?
5. Where wife sought to prove her contribution to the marriage under the
statutory "homemaker" standard by 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 courl 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?
6. Where wife, who is seven vears younger than husband, left this four-year
maniage with the long-half of the marital assets totaling over $i.2 million and
acareer 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?
7. Where wife received more than half the value of the marital assets totaiing in
excess of $1.2 million and q'here she ran up over $40,000 in ViSA credit card
debt including payment to her attorneys in the month prior to trial which
25
husband paid, did the trial court err in also awarding her $20.000 in attorney
fees?
Summary of Argument
The property distribution and spousal support awards in this case are skewed in
wife's favor and should be adjusted to comply with ORS Chapter 107 and this court's
case law interpreting the statutory provisions. Husband came into the marriage with
substantial assets which he retained during the two-year cohabitation period. After the
parties married, wife made no contribution to the appreciation of the Carlson Group and
therefore its appreciation should be awarded to husband as his separate property. Even if
this court concludes wife should receive some share of the Carlson Group under a'Just
and proper" analysis, the award should be limited to20o/o of the marital appreciation, as
husband offered.
Wife's testimony was inconsistent at best and the trial court expiicitly challenged
wife's credibility regarding her physical limitations for gainful employment. Wife's
testimony directed toward her assertion of "homemaker" status directl,v contradicted her
assefied inability to work productively as an interior decorator. Even if wife has physical
limitations that preclude full time work. she has the capacity to be self-employed as an
interior designer as demonstrated by her own testimony and that of her vocational expert.
In addition, undet the current distribution, wife who came into the marriage with minimal
cash and few assets leaves the short marriage with over $1.2 million in assets with which
to support herself and to provide for her security.
It is unjust to award wife half of the productive assets of husband's business AND
to require husband to pay indefinite spousal support. This "double-dipping" should be
26
eliminated by making spousal support equal only to the length of the marriage four
-
years.
Summary of Facts
In addition to the recitation of facts above, husband offers the followine
chronology to assist the court:
Date Event
May 1997 Husband purchases Mara court property more than two years before
he meets wife. (Tr. 59; Ex. 20)
March 1999 Husband and his brother start their business, the Carlson Group. (Tr.
53)
July 1999 Husband and wife begin dating. (Tr. 57)
Feb 2000 Husband and wife begin living together, both work and each pays their
own expenses. (Tr. 57) There are no shared bank accounts.
September 2001 wife has back surgery and is temporarily unable to w-ork so husband
provides her a credit card to pay her expenses. (Tr. 60)
January 2002 Just before marriage. husband's retirement account is worth $39.150
(Ex. 6); his MKG investment account is worth $103,739 (Ex. 7); and
his wells Fargo account is valued at$220,624 (Ex. 5). All these funds
are solely his w'ith no contribution by wife. (Tr. 67) Husband's total
accounts are thus worth $363,513.
February 2002 Date of marriage. (Tr. 60)
August 2002 The parties purchase west Linn property for $677,000 using husband's
funds of $183,000 as dow'n-payment. (Tr.7I; Ex. 21) Because wife
27
has bad credit from a prior relationship, the home is placed solely in
husband's name and he alone is liable on the debt. (Tr. 71,72,74)
September 2002 At the new home, wife trips over an object left out by a Sears repair
person and re-injures her back. (Tr. 80)
Spring 2003 Wife completes training and becomes "Certified Interior Designer" and
sets up her business, "Interior Expressions". (Tr. 86-7, 541) Wife
receives settlement from Sears of over $150,000. By the time of trial,
the value is $160,699,
Sentember 2004 Wile has second back surgery and according to her attending
physician, her condition gradually improves. (Tr.29)
September 2005 Wife attends drug rehabilitation in Florida; husband accompanies her.
(Tr.122\
October 2005 Husband files Petition for Dissolution.
April2006 The parties have a trial date: husband and wife both retain business
valuation experts for the Carlson Group; both experts agreed the value
of the company is approximately 52.72 million. (Tr. 360-61)
September 2006 Trial is finally held. By the time of trial, wife's valuation expert, Mr.
Arnold, increases his value estimate for the Carlson Group to
$3,532,000, up nearly 307o since April (over $800,000 in 6 months).
(Tr. 268-9; 331)
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Cross-Assignments of Error:
FIRST CROSS-ASSIGMENT OF ERROR
The trial court findings: that the parties intended to share husband's premarital
assets, and the Carlson Group; and that there was "no evidence of any intent to retain
separately acquired property"; are not supported by the record.
SECOI{D CROSS-ASSIGNMENT OF ERROR
The trial court erred in failine to distribute to husband the full value of his
premarital assets.
THIRD CROSS-ASSIGNMENT OF ERROR
The trial court erred in awarding wife any share of the Carlson Group u,here she
admitted she made no contribution to the acquisition or growth of the business.
FOURTH CROSS-ASSIGNMEI{T OF ERROR
Even if it q'ere'Just and proper" to award w'ife some of the value of the Carlson
Group, the court's award was excessive in light of the short term marriage and the value
of other assets awarded to wife.
FIFTH CROSS-ASSIGNMENT OF ERROR
The trial court erred in choosing to accept wife's valuation expert's opinion that
the Carlson Group was worth over $3.5 million when only months earlier, the same
expert valued the Carlson Group atS2.7 million and agreed with husband's valuation
expert.
PRESERVATION
Husband argued in his trial memorandum, in his proposed distribution of the
marital assets and in his counsel's opening and closing statements that he should receive
29
the value of his pre-marital assets and that the Carlson Group and any appreciation were
not marital assets. (Trial Memorandum, pp. 5-8; opening Statement (Tr. 4-5); and
Closing Argument (Tr. 803-806)) Husband also offered his own valuation expert's
testimony and offered evidence demonstrating that the valuation experts agreed in April,
2006 that the company was worth approximat ely $2.72 million. (Tr. 26g-9;360-62)
STANDARD OF REVIEW
This court's review is de novo. ORS 19.415(3). Edwards and Edwards.209 ar.
App. 555, 557, 149 P.3d 196 (2006)
ARGUMENT Oh[ FIRST, SECOND, THIRD,
FOURTH AND FIFTH CROSS-ASSIGNMENTS OF ERROR
This court is very familiar with the Kunze analS,tical formulation for property
distribution, so it is summarized here as follows:
1) The court must identify the parties' marital assets by determining when
propefty was acquired. For marital assets, the presumption of equal
contribution applies. Marital assets are "any real or personal propefiy * * *
acquiredby eitherof the spouses * * * duringthe marriage." Stice and Stice,
308 Or. 316,325,779P.2d 1020 (1989);
2) The court must then determine whether the presumption of equal contribution
has been overcome by evidence the "disputed marital assets did not result
from equal contribution from the other spouse." Fuernsteiner-Perin and
Perin,211 Or. App 23, 29,153 p.3d 151 (2007); and
3) The court must then determine what division of marital assets is "iust and
proper" under the circumstances.
Kunze and Kunze,337 Or. I22,133,92 P.3d 100 (200a): Perin,211 Or. App at
31-32.
In her proposed distribution, wife sought a share of all of husband's pre-marital
assets and of the appreciation in husband's business, the Carlson Group. To be
successful, wife would have to establish that husband's property is a marital asset. "[T]he
party seeking to avail himself or herself of the presumption of equal contribution has the
burden of proving that the property in question is a marital asset". Edu,ards, 209 Or.
App. at 559.
This court has made clear that assets acquired during premarital cohabitation are
not marital assets. Timm and Timnt,200 Or. App. 621 ,628-29,117 P.3d 301 (2005)
Thus, this court should return to husband the full value of his premarital assets shown
from the record to be as follows: a retirement account of $39,150, cash savings of
5220,624 and $130,739, and the value of the Carlson Group. It was error for the trial
court to incorporate all or any portion of the value of these premarital assets in its
distribution.
The trial court specifically recognized that the Carlson Group (acquisition and
appreciation) was husband's sole and separate property. Husband overcame the
presumption of equal contribution - as the trial court found. (ER 44; "Did wife's efforts
contribute equally to the acquisition of the increase in value of Carlson Group? No,
acquisition was premarital and she never worked there. * * *.!') Therefore, it was error to
divide any part of the value of the Carlson Group.
In the absence of any other assets to award to wife. this court might conclude it
would be'Just and proper" to award her some share of the Carlson Group. However,
31
wife received her personal injury settlement of $ 160,699; return of her Intel stock; the
equity in the family home of $349,606;her $12,000 Mercedes Benz; and relief from the
$40,160 VISA credit card debt she accumulated in the month before trial. Wife thus
received a distribution totaling over $562,305 without any share of the Carlson Group.
Even if this coutt completely eliminated the Carlson Group in its distribution. wife would
go from assets of nearly zero to over $562.000 in this short marriage. That would be a
'Just and proper" distribution and would be a correct interpretation of case law and ORS
1 07.1 05.
Though wife came into the marriage n'ith bad credit, very few assets and did not
work during the marriage, she leaves with substantial assets which she can use for her
support and security. She has two career options - hair stylist or interior decorator
earning up to $80,000 per year - and a home. Wife may not be able to retain a 5,000
square foot home. Indeed, if this court accepts her testimony regarding her physical
limitations due to her bad back. it would seem surprising she would desire such a large
home for herself. She may not be able to spend $ 12,500 per month to live indefinitely.
but she can be self-supporting and financially secure. Her economic self-sufficiency is
one of the goals of ORS 107.105 and of this court's division of marital assets. Perin.2ll
Or. App. at31-32.
The equity of a property division should be evaluated based on the key
considerations as follows:
(1) preservation ofthe assets,
(2) the achievement of economic self-sufficiency for both spouses;
(3) the particular needs of the parties. and
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(4) the extent to which the parties have integrated assets through commingling.
Perin at 3I-32. citins Kunze at 136.
On Cross-Assignments of Error 1-5, this court should eliminate that portion of the
property distribution that treats the Carlson Group as a marital asset. This court should
return to husband the full value of his pre-maritai, separate assets ($363,513).
If this court decides to award wife any share of the Carlson Group, it should
choose the valuation agreed upon by the experts in April, 2006 ($2.72 million) and not
the higher number offered at trial by wife's valuation expert. Wife's valuation experr
offered no viable rationale for increasing by 30% his opinion of the value of the Carlson
Group over the months between April and September, 2006. His testimony that the
Carlson Group was worth $800,000 more in September than it was in April is just not
credible and should be rejected by this court. Based on all the credible testimony and the
earlier agreement of the experts, the marital appreciation of the Carlson Group was $1.52
million ($2.72 million less the stipulated date of marriage value of $1.2 million).
If this court determines it should make a'Just and proper" adjustment, it should
be limited to husband's offer of l\o/a of the marital appreciation of the Carlson Group or
$147,300. Together with the other assets she received, that would give wife over
5700,000 in very valuable assets to provide for her.
SIXTH CROSS-ASSIGNMENT OF ERROR
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 credit in the property
distribution for this pa\rynent.
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PRESERVATION
Husband's Proposed Distribution of Assets and Liabilities at p. 2 called for
husband to pay the VISA bill at $40,160 and gave him credit in the property distribution
for the payment. Husband filed objections to the Reference Judge's Initial Report and at
p. 2, took exception to the trial court's failure to give husband credit for the $40,160
obligation he was ordered to pay. The court's distribution ignored this liability. (ER 48-
50)
STANDARD OF REVIEW
This court's review rs de novo. ORS 19.415(3).
ARGUMENT ON SIXTH CROSS-ASSIGNMENT OF ERROR
By statute, the trial court and this court are charged with dividing the marital
property in a manner that is 'Just and proper". ORS I 07. 105. In its final judgment
disposing of the property here, the trial courl ordered husband to pay the balance owing
on the VISA account of $40.160. The evidence established wife "ran up" the credit card
balance in the month before trial to a total of $40.160. Even though husband was ordered
to undertake the liability, the trial courl's distribution did not take this liability into
consideration.
Any offsetting judgment to wife should be reduced by her share of the VISA debt
either in the full amount she charged of $40,160 or at least for half of the debt or $20,080.
SEVEI{TH CROSS-ASSIGI{MENT OF ERROR
The trial court erred in awarding wife indefinite spousal support where her own
testimony established her ability to work as an interior decorator and to earn $60,000 to
$80,000 per year within a reasonable time.
.A
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EIGHTH CROSS-ASSIGNMENT OF ERROR
The trial court erred in awarding wife $8,000 per month in spousal support where
the evidence established the parties lived a relatively modest lifestyle and \a'ife's alleged
need for support depended on her assertion she need $12,500 per month to live.
PRESERVATION
Husband advocated short term spousal support in the amount of $4,000 per month
for three years and $2,000 per month for one year. (Trial Memorandum, p. 9)
Husband filed objections to the Reference Judge's Initial Report and at pp. l-2, took
exception to the trial court's award of spousal support because it awards wife support
without consideration for her income and without consideration that husband cannot Dav
that level of support from his income. (SER 4-5)
STANDARD OF REVIEW
This court's review is de novo. ORS 19.415,l.j-\.
ARGUMEI{T ON SEVENTH AND EIGHTH
CROSS-ASSIGNMENTS OF ERROR
This is not an appropriate case for indefinite spousal support. The trial couft's
finding that wife's back problems precluded her from using her interior design cerlificate
to become self-supporting is contrary to wife's extensive testimony. The parlies w-ere
married for three years at the time husband filed this Petition. Due to the unavailabilitv
of trial judges resulting in delay getting to trial, the marriage was extended to four years.
In the existing distribution or in any modified distribution, wife will receive substantial
assets with which to support herself. She also has tw-o specialty career options hair-
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stylist or certified interior designer. As an interior designer, she predicts she will earn
i)
$60,000-$80,000 once she gets started. With an award of assets, her income q'ill be
sufficient to sustain her.
The amount of support awarded is excessive on the evidence husband's gross
salary is $14,000 per month. Thus the award of $8,000 to u,ife is well more than half of
husband's after-tax salary. The trial court award appeared to be driven by wife's asserted
need to spend $12,500 per month. A more modest award of a finite duration will
encourage wife to become more reasonabie in her spending and economically seif-
sufficient. Husband's suggested term is four years - the length of the marriage. A
reduction in the amount of support to a more reasonable sum will allow both parties to
live and would represent a more equitable resolution.
NINTH CROSS-ASSIGI{MENT OF ERROR
The trial court erred in awarding attorney fees against husband where the parties
received nearly equal assets and rvife could pay her own fees.
PRESERVATION
Husband opposed any award of costs or attomey fees by filing the Affidavit of his
attorney in opposition and his attorney appeared at the hearing on attomey fees held
August 10,2007. (August I0,2007 transcript)
STANDARD OF REVIEW
This court's review rs de nou-o. ORS 19.415(3). This court applies the same
statutory criteria in determining an appropriate award, if any. ORS 20.075
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ARGUMENT ON NINTH CROSS-ASSIGIYMENT OF ERROR
Because wife received substantial assets in the division of property, she should be
responsible for her own attorney fees. Niman and |liman, 206 Ot App 259,271, 736
P.3d i05 (2006)
Wife sought recovery for $75,490.00 in attorney fees and 531,924.33 in costs,
including expert witness fees. (Wife's ORCP 68 filing). The evidence at trial was that
wife used the parties' joint credit card to pay $60,266.03 in fees and costs pre-triai. (Exs.
4,16) Husband's fees and costs for the same pre-trial period totaled $47.300.00.
Because the trial court awarded wife the "long half of the assets passing u,ith [the]
Judgment", it was error to also award her attorney fees.
This court should vacate and modify the properly division and in so doing, should
give husband credit for the $40,160 VISA payment (which partially paid wife's attorney
fees) and should vacate the attomey fee judgment.
JI
CONCLUSION ON CROSS-APPELLANT'S BRIEF
The trial court's judgment should be modified: (1) to return to husband the full
value of his pre-marital assets ($363,513); (2) to modify the judgment to award wife no
more than $562,000 of the marital assets she already received by receiving the full equit5'
in the family home and her personal injury settlement; (3) to limit the duration of spousal
support to four years; and (4) to vacate the award of attomey fees against husband.
Respectfully submitted this 25'n day of September. 2008
LAW OFFICE OF HELEN C. TOMPKNS. PC
Helen C. Tompkins, OSB 87210
Attorney for Respondent-Cross-Appel lant
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.+ IN THE CIRCUIT COURT OF THE STATE OF OREGON
5 FOR THE COUNTY OF CLACKAMAS
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In the Matter of the Marriage of:
'; Case No. DR05-10-0670
7 GREG P. CARLSON,
SUPPLEMENTAL JUDGMENT FOR
8 Petitioner, ATTORNEY FEES AND COSTS, AND
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LISA-NICOLE CARLSON,
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Respondent.
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J This matter came before the courl on August 10,2007 on respondent's ORCP 68
a Statement of Attorney Fees and Costs. Petitioner appeared in person and through his
3 attorney, Charles D. Gazzola. Respondent appeared in person and through her
n attorney, Gary J. Zimmer. The court considered respondent's ORCP 68 Statement of
Attorney Fees and Costs, petitioner's objections to that document, the argument of
c counsel, and the evidence and testimony presented at hearing. On August19,2A07,
Y the court issued its letter opinion, which is attached hereto as Exhibit 1 and incorporated
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IU herein, containing its findings of fact and ruling. Based on the court's letter opinion,
_' now, therefore,
lT lS ORDERED AND ADJUDGED as fotlows:
1. Petitioner shall pay to respondent and respondent shall have a money
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award against petitioner for the sum of $20,000 on account of her attorney fees and
:: costs. lnterest on the sum of $20,000 shall accrue at the statutorv rate of nine oercent
: simple from the date of entry of this supplementaljudgment until paid in full.
:AgE 1 _ SUPPLEMENTAL JUDGMENT FOR ATToRNEY FEES AND coSTS, AND MoNEY AWARD
''-: CARLSON\SUPP JUDGMENT RE ATTYFEES.DOC
ZIMIVIER& BUNCH LLC
680 Umpqua Bank plaza
OneSW ColumbiaStreet
Portland, Oregon 97 25V20A7
Teiephone 503,295-6191 Fax: 503-294-0j08
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1 2. MONEY AWARD.
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L Judgment Creditor : Lisa Nicole Millerfik/a Carlson
Judgment Creditor's Address : 2142 Marylwood Court
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West Linn, OR 97068
- Judgment Creditor's Attorney
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: Garv J. Zimmer
Address of Judgment
Creditor's Attorney : 1SW Columbia, Suite 680
Portland, OR 97258
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Telephone : 503-295-6191
;
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Judgment Debtor : Greg P. Carlson
Jud gment Debtor's Add ress : 12665 SW 69'n Avenue, #100
;8 Portland, OR
Debtor's Date cf Bi(h : Separately subrnitted under UTCR 2iA0
Y Debtor's Social Security No. ; Separately submitted under UTCR 2.1A0
" Debtor's Driver's License No. : Seoaratelv submitted under UTCR ziAA
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Judgment Debtor's Attorney : Charies D. Gazzola
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Judoment Amount : Attorney fees and costs
Petitioner shall pay to respondent and respondent shall have a money award
IJ against petitioner for the sum of $20,000 on account of her attorney fees and
COSIS.
,-
Prejudgment lnterest : None
Interesi :
-
,7 Nine percent per annum simple interest on the sum of $20,000 from the date of
entry of this supplemental judgment until paid in full.
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/1r I Ydr dgrt : None
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Attorney Fees Awarded ; As set forth above
tn Ccsts Awarded forth a.Lrove
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DATED this [ ) day of
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--
orable
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DATED this day of 2047.
Circuit Court Judoe
=AgE 2 _ SUPPLEMENTAL JUDGMENT FOR ATToRNEY FEES AND coSTS, ANb MoNEY AWARD
,: :ARLSON\SUPP JUDGMENT RE AfiY FEES,DOC
ZIMMER & BUNCH LLC
680 Ljmpqua Bank Plaza
OneSW ColumbiaSlreet
Podland, Oregon g7 258-2A07
qo?-?qa-nldc
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Submitted by:
ZIMMER & BUNCH LLC
Garv J. Zimmer. OSB No. 753980
Of Attorneys for Respondent
Approved as to form:
arles D, Gazzola OSB
Of Attorneys for Petitioner
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: _ SUPPLEMENTAL JUDGMENT
=gC 3 FOR ATToRNEY FEES AND coSTS. AND MoNEY AWARD
.,1,:ARLSON\SUPP JUDGT\4ENT RE ATTY FEES.DOC
ZIMN1ER & BUNCH LLC
680 l.Jmpqua Bank Ptaza
One S \i Columbia Streei
Porllaf o, Oregon 97258-2007
Telephone: 503-295-6191 Fax: 503-294-0108
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5 IN THE CIRCUIT COURT OF THE STATE OF OREGbN
o FOR THE COUNTY OF CLACKAMAS
7 In The Matter of the Marriage of :
8
No. DR05100670
GREG P. CARLSON,
rJ PETITIONER'S OBJECTIONS TO
Petitioner, REFERENCE JUDGE'S INITIAL
10 REPORT
and
11
LISA NICOLE CARLSON,
12
13 Respqrndent. )
14
Pursuant to ORS 3.315(2), Petitioner, Greg Carlson ("Husband') objects to the
15
to reference judge's initial report as follows:
17 1.
18 SPOUSAL SUPPORT
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ln it's determination of spousal support, the Court made no findings as to income
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that Respondent, Lisa Nicole Carlson "Wife", may be able to generate from the
21
Judgment paid by Husband. Further, the Court awarded a level of support that
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Husband cannot pay from his regular income while meeting his expenses. Finally, with
23
24 the judgment Husband is to pay, it is not clear what consideration, if any, the Court gave
25 Page 1 - PETITIONER's oBJEcrtoNS To REFERENOE JUDGE's tNtlAL REpoRT Gazzola & Hull, PC.
Attorneys at Law
26 720 S.W. Washington Street, Suite 210
Portland, Oregon 97205-3537
(503) 29s-302s
FAX: (503) 248-02s5
chip@gazzolahull.aom
5€,(5
{I to Husband's ability to pay both the Judgment and support simultaneously. Further, it
2 has Husband continuing to pay all of Wife's expenses until a Judgment is issued, which
a may take several weeks. Husband objects to this.
4 2.
5
PROPERTY DIVISION
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ln dividing the property, the Court awarded Wife well in excess of 50% of the
7
marital estate. In so doing, the Court also awarded Wife indefinite maintenance. The
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Courl also awarded Wife all of the pets, including a pet that Husband owned prior to the
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10 parties' relationship commencing.
11 lnsofar as the cat Husband owned prior to the parties' marriage, it should have
12
been awarded to him. As to the division of assets, if the Court is going to award Wife
13
indefinite maintenance, the Court should divide what it determined the marital assets to
14
be equally. With it's ruling, Wife received 56% of the marital estate, including a
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Judgment for almost $700,000 as her share of the marital appreciation in the Carlson
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17 Group and an indefinite maintenance award. The Court also failed to consider a
18 $40,000 Visa bill and failed to consider any value as to the car awarded to wife.
1
19 ln looking-at the business valuation, the Court acknowledged Wife's valuer
20
double counted certain business income and yet adopted that valuer's value. Husband
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objects to this d-etermination by the Court.
22
Lastly, Wife has charged her attorney fees on a joint accouni and there was
23
undisputed evidence of a $20,000 payment to her attorney to cover trial expenses.
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25 Page 2 - PETITIONER'S OBJECTIONS TO REFERENCE JUDGE'S lNlTlAL REPORT Gazzola & Hull, P.G.
Attorneys at Law
26 720 S.W. Washington Street, Suite 210
Portland, Oregon 97205-3537
(503) 29s-3025
FAX: (503) 248-029s
chip@gazzolahull.com
SER 6
Even with this, the Court indicated a willingness to award wife fees. Husband objects to
I
2 that determination.
.J DATED this 6th dav of November 2006.
4
5
o Chbrles D. Gazlola. OSB#88212
Attorney for Petitioner
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25 PAgC 3 _ PETITIONER'S OBJECTIONS TO REFERENCE JUDGE,S INITIAL REPORT Gazzola & HuII. PC.
Attomeys at Law
26 720 S.W. Washington Street, Suite 210
Portland, Oregon 97205-3537
(503) 295-3025
FAX: (503) 248-0295
chip@gazzolahull.com
Certificate of Service
I hereby certify that on this date I served the foregoing
RESPONDENT'S AND CROSS-APPELLANT'S BRTEF
on the attorneys of record for Appellant-Cross-Respondent by FIRST CLASS MAIL,
addressed as follows:
Gary J. Zimmer
Zimmer & Bunch LLC
i SW Columbia St., Ste. 680
Portland. OR 97258
Attorney for Appellant-Cross-Respondent
I hereby certify that on this date I filed the foregoing by first class mail. postage
prepaid, addressed as follows:
Kingsley Click
State Court Administrator
Supreme Court Building
I 163 State Street
Salem, OR 97310
Dated this 25rH Day of September 2008
Helen C. Tompkins, OSB # 87210
Attorney for Respondent and
Cross-Appellant. Greg P. Carison