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Carlson and Carlson Respondent Brief

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Respondent appellant brief in divorce case of Carlson and Carlson

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									                      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


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                                                                             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 2.516                                  aa
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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
 lr,


 {l
       (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




  I
  I
  I




  I
  fl
  l!
                                                                                              2l


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?
                                                                                            24



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)
                                                                                               28



                                 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
                                                                                                  32



         (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.
                                                                                              33



                                           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
                                                                                                 J+



                         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-
                                                                                     -
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
                                                                                            36



                  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
                                                                                                                         ..'FR   L
                1


                .)
                L



                J

                 A
                .+                              IN THE CIRCUIT COURT OF THE STATE OF OREGON

                5                                           FOR THE COUNTY OF CLACKAMAS
                h
                           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
                                                                                             [4r\\ler../   ArA/4c]t-\
                                                                                             lVi\/l \I- | /1V v rli \u
               I                   and
          1n
                           LISA-NICOLE CARLSON,
          ,.   1
                I
                                                      Respondent.
     'Z

               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
      -n
      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
      ^r'
                        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
                                                                                                                                5€( a
              1                  2.          MONEY AWARD.
!
             a
          L                      Judgment Creditor                                    :       Lisa Nicole Millerfik/a Carlson
                                 Judgment Creditor's Address                          :       2142 Marylwood Court
             ?
                                                                                              West Linn, OR 97068

          -                      Judgment Creditor's Attorney
          A
                                                                                      :       Garv J. Zimmer
                                 Address of Judgment
                                  Creditor's Attorney                             :           1SW Columbia, Suite 680
                                                                                              Portland, OR 97258
          A
                                 Telephone                                        :           503-295-6191
;
          7
                                 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
     '1   n


     11
                                 Judgment Debtor's                Attorney        :           Charies D. Gazzola

'
         .z
                                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.
         o                      n..^^-^^^
                                /1r I Ydr dgrt                               :                None
'


         Y
                                Attorney Fees Awarded                        ;               As set forth above
    tn                          Ccsts Awarded                                                         forth      a.Lrove
    ^4                                                   1r:}
    :L
                                DATED         this [       )    day of
    .)
    --
                                                                                                        orable
    *:
                                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
                                                                                                   ,5€< 3

              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
     3

     J
    ")
    ,1

    "a
     a

    '3
    ./

     3


     ?




         li
:             _ 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
                                                                                                       -'€R         I
 1



 z



 4

 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
19
                   ln it's determination of spousal support, the Court made no findings as to income
20
      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
22
      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
 o
                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
 B

       Courl also awarded Wife all of the pets, including a pet that Husband owned prior to the
 I
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
.ttr
IU

       Judgment for almost $700,000 as her share of the marital appreciation in the Carlson
16

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
21
       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.
24

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
 7

 B




10

1't

12

IJ

14

tc
IO

17

18

19

20

21

22

23

24

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

								
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