In re Morrison

321 Or.App. 491

516 P.3d 1196

In the MATTER OF the MARRIAGE OF Holly Ann MORRISON, Petitioner-Respondent, and Paul Francis CHIERICHETTI, Respondent-Appellant.

A176188

Court of Appeals of Oregon.

Argued and submitted May 9, 2022.

August 31, 2022

Melisa A. Button, Medford, argued the cause for appellant. Also on the briefs was Stefanie L. Burke.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent.

Before Powers, Presiding Judge, and Lagesen, Chief Judge, and Hellman, Judge.

HELLMAN, J.

Husband appeals from a judgment dissolving the parties’ marriage, challenging the trial court's division of marital property. He argues that the trial court erred in its division of two properties by awarding wife one-half of the equity in properties for which husband provided the down payment. We conclude that the trial court did not err in its methodology and that the resulting distribution was within the range of permissible legal outcomes. Accordingly, we affirm.

BACKGROUND

We are bound by the trial court's factual findings that are supported by the evidence, and we state the facts consistent with the trial court's express and implied findings. Maldonado and Freed , 294 Or App 583, 585, 432 P.3d 1154 (2018).¹

The parties met in 2016 and were married in May 2018. At the time of their marriage, wife was 57 years old, and husband was 67 years old. In September 2017, the parties purchased a property in Josephine County to serve as their marital home (Wagon Wheel). Wife helped locate Wagon Wheel and husband provided the $430,000 down payment using cash from his premarital assets. Wife did not financially contribute to the purchase of Wagon Wheel, but she made decisions regarding the home's renovations, and both her and husband's names were on the home's title.

Wife sold her premarital home and moved into Wagon Wheel alone prior to the marriage. Referring to himself as "Paul the Provider," husband supported wife's plans to give away and wind down her cleaning and fiduciary businesses and promised to financially support her. Before the May 2018 marriage, wife testified that the parties had discussed a prenuptial agreement with husband's attorneys, but they decided not to establish one because they believed they would never divorce.

By August 2018, about three months into their marriage, husband had moved out of Wagon Wheel and back into his premarital home. The parties continued to live separately for the remainder of their marriage.

In June 2019, the parties purchased a second property in Multnomah County (Yamhill). Wife located Yamhill and husband again provided the down payment, using $400,000 that he had inherited during the marriage. The parties took out a joint mortgage to cover the remaining $145,000. Yamhill had two living areas, one that the parties intended to stay in together when they visited Portland and a second that the parties leased to tenants. Wife and her daughter opened a joint checking account, into which they deposited rental income and from which wife wrote checks to pay contractors.

Despite living in separate homes during this time, the parties continued to share finances. The parties continued to pay their bills primarily from a joint checking account with wife writing the necessary checks. Wife contributed the last $15,000 of her fiduciary income into that bank account, but husband provided the majority of the funds with his income. In July 2019, husband also executed a will and trust providing that the majority of his estate would pass to wife after distributions to his children.

Following a trial, the trial court concluded that, because it was purchased before the marriage, Wagon Wheel was not a marital asset and husband's $430,000 down payment was therefore not subject to the presumption of equal contribution.² Because Yamhill was purchased during the marriage, the trial court concluded that Yamhill was subject to the presumption of equal contribution. The trial court, however, concluded that husband rebutted the presumption of equal contribution as to the $400,000 down payment that came from his inheritance.

The trial court then considered whether a "just and proper" distribution would require that wife receive a portion of husband's contributions to the purchase of Wagon Wheel and Yamhill. Within that analysis, the trial court determined that husband's contributions had been commingled to such an extent as to become part of the marital estate. The court found that husband's intent to share the value of his contributions with wife was evidenced by:

• The parties holding joint title to Wagon Wheel and Yamhill and sharing the mortgage for Yamhill since the time of acquisition.

• The parties’ intent to reside at Wagon Wheel as a married couple.

• Wife's continued residence at Wagon Wheel even after husband moved to another property.

• The parties’ purchase, almost a year after husband moved out of Wagon Wheel, of another property that they intended to live at together and to which they held joint title.

• Husband's execution of a will leaving the majority of his estate to wife.

• The parties’ express decision not to execute a prenuptial agreement.

• Husband's testimony at trial that he intended the properties to be owned by both parties "[i]n marriage."

• Wife's control of the renovation decisions for the properties and work with the property management company for Yamhill.

The trial court also found that it was equitable to award wife a portion of husband's contributions because she gave away her cleaning business and stopped taking fiduciary work in reliance on husband's encouragement to rely on him to provide for her financial needs.

Based on those equitable considerations, the trial court awarded wife one-half of the remaining proceeds of both properties after payments for mortgage debt, repairs, and an equalizing judgment to husband.

On appeal, husband argues that the trial court erred in determining that it was just and proper to award one-half of the equity to wife. He argues that the court erred in solely focusing on whether the property was commingled, failing to take into account the short-term nature of the parties’ marriage, and ultimately determining that the properties were commingled. Wife responds that the trial court's division of property was just and proper and fell within the range of legally permissible outcomes.

STANDARD OF REVIEW

We review the trial court's resolution of legal questions for errors of law, and we review the trial court's ultimate determination as to what overall property division is just and proper for an abuse of discretion. Maldonado , 294 Or App at 589-90, 432 P.3d 1154. We will not disturb the trial court's division unless the trial court misapplied the statutory and equitable considerations required by ORS 107.105. Id. at 590, 432 P.3d 1154.

LEGAL FRAMEWORK

Property division upon dissolution of marriage is governed by ORS 107.105(1)(f), which provides:

"Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment:

"*****

"For the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances. *** [T]here is a rebuttable presumption that both parties have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held."

There are therefore two types of property at issue in a dissolution. First, "marital assets" are real or personal property acquired by either spouse during a marriage. Kunze and Kunze , 337 Or. 122, 133-34, 92 P.3d 100 (2004). The presumption of equal contribution applies to marital assets and directs the court that, unless proven otherwise, the court must find that both parties have contributed equally to the acquisition of marital assets. Hostetler and Hostetler , 269 Or App 312, 319, 344 P.3d 126 (2015). If, however, a spouse successfully rebuts the presumption of equal contribution, then "the party holding the separate asset is entitled to receive the property in the division of marital assets unless other considerations make it ‘just and proper in all the circumstances’ to distribute the property otherwise." Loomis and Loomis , 247 Or App 127, 136, 268 P.3d 700 (2011) (quoting ORS 107.105(1)(f) ; internal citations omitted).

Regardless of whether the presumption of equal contribution to marital assets is rebutted, then, ORS 107.105 ultimately requires courts to distribute marital assets as may be just and proper under all the circumstances. Fuernsteiner-Perin and Perin , 211 Or App 23, 31, 153 P.3d 151 (2007).

The second type of marital property, premarital assets, are assets acquired before marriage and are not subject to the presumption of equal contribution. Van Winkel and Van Winkel , 289 Or App 805, 811, 412 P.3d 243, rev. den. , 363 Or. 224, 434 P.3d 24 (2018). Like marital assets, premarital assets are ultimately subject to any distribution that is "just and proper in all the circumstances." ORS 107.105(1)(f).

Determining what is just and proper in a given dissolution requires the court to take a holistic view of all the circumstances of the parties. Fuernsteiner-Perin , 211 Or App at 31, 153 P.3d 151. That inquiry "takes into account the social and financial objectives of the dissolution, as well as any other considerations that bear upon the question of what division of the marital property is equitable." Kunze , 337 Or. at 135, 92 P.3d 100. Some of the equitable considerations include the preservation of assets; the achievement of economic self-sufficiency for both spouses; the particular needs of the parties and their children; and the extent to which a party has integrated a separately acquired asset into the common financial affairs of the parties through commingling. Id. at 136, 92 P.3d 100.

APPLICATION

Within the legal framework, the parties focus their arguments on the trial court's decision...