In re Owens

307 Or.App. 418

477 P.3d 422

In the MATTER OF the MARRIAGE OF Dana Eleanor OWENS, Petitioner-Appellant, and Ron F. Owens, Respondent-Respondent.

A168584

Court of Appeals of Oregon.

Argued and submitted December 6, 2019.

November 4, 2020

Peter Bunch, Portland, argued the cause for appellant. Also on the briefs was The Law Firm of Peter Bunch, LLC.

Kimberly A. Quach, Portland, argued the cause for respondent. Also on the brief was Quach Family Law, P.C.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J.

Wife appeals a supplemental judgment modifying the amount of spousal support that she receives from husband. Among other points, in her third assignment of error, she contends that the trial court in the modification proceeding erred when it changed husband's spousal support obligation to wife, because husband failed to meet his burden of proving a substantial, unanticipated change in economic circumstances. We agree with wife that the trial court in the modification proceeding erred. Accordingly, we reverse.¹

I. FACTS

Husband and wife were married in 2003. Wife filed for dissolution in 2016. They have a son and a daughter who, at the time of the dissolution, were aged 10 and 9 respectively. As explained further below, the daughter has "physical and emotional" health issues.

A. The Dissolution Proceeding

The dissolution trial was held on August 29, 2016, and September 27, 2016. Wife worked part-time as a nurse and earned $4,982 per month.

Husband worked in automotive sales. His salary was $20,000 per month, and he received additional compensation when a vehicle with accessories was sold. In 2014, his annual income was $228,000 and, in 2015, his annual income was $275,000.

At the time of the dissolution trial, husband anticipated starting a new job in late 2016 as general manager at a car dealership that would be opening soon. Husband testified that in his new position he would earn a base salary of $10,000 per month, plus 10 percent of any "net profits" of the car dealership.

Wife testified that, when the dealership husband would be working at got "up and going," husband could make anywhere from $30,000 to $60,000 per month. In contrast, husband was less clear about what he would earn in his new position. He testified that he anticipated his income from the new position to be lower at first, but that he would be back to earning what he did at his previous job "probably in 24 months." According to husband, dealerships typically are not profitable for the first year; he changed positions within his field because he expected that he would earn more in his new job than he did in his prior job; and he "hope[d] there's upside to [the new job] that is amazing."

In October 2016, as anticipated at the time of the dissolution trial, husband started his new job as general manager of the car dealership.

On November 2, 2016, the trial court in the dissolution proceeding issued a letter opinion, in which it found that the parties’ "daughter has physical and mental health issues that interfere with her daily functioning," and it noted that father "reports" that he has "no idea" what his income would be going forward but that he "moved positions in hopes of earning even higher wages."

The trial court in the dissolution proceeding also noted that, "[d]ue to mother's compromised work ability (resulting from the daughter's needs), and the lifestyle to which they are accustomed, this is clearly a maintenance spousal support case." The court determined that:

"At his prior income, spousal would be $5,000-$7,000 per month. At his reduced income it seems just and equitable to set spousal at [$2,000] per month, plus one-half of his gross commission (the 10% of net profits)."

The letter opinion further specified that "[s]upport is indefinite."

A dissolution judgment was entered on April 19, 2017. The judgment noted that wife's "gross monthly income from employment is $4,982" and listed, among other points, the following "factors" considered by the trial court in the dissolution proceeding in awarding "maintenance" spousal support:

"(1) This is a marriage of over 13 years.

"(2) Husband's earnings substantially exceeds Wife's earnings.

"(3) In 2014, Husband earned $228,000, gross. Husband did not present income information at trial for 2015, but he was employed in the same field. Husband obtained a new position in his field of automotive sales and anticipates his income will exceed his 2014 income within two years. Husband's guaranteed base pay is $10,000 per month. In addition to his base pay, Husband may receive 10 percent of the net profits from the business that employs him.

"* * * * *

"(7) The parties’ daughter has serious health issues. Wife often misses work to attend to the child's needs and is therefore unable to work full time. If the child's needs allowed Wife to work full time, she would be self-sufficient.

"(8) * * * Wife's custodial duties are a factor in the court's award of spousal support.

"(9) Based on the above factors, spousal maintenance is appropriate so that Wife can enjoy a standard of living not overly disproportionate to the standard of living of the parties as established during their marriage. The support awarded to Wife is just and equitable under all of the circumstances."

The judgment then awarded wife indefinite maintenance spousal support of $2,200 per month and "50 percent of Husband's net profits received that arises from his employment." Husband did not appeal the dissolution judgment.

B. The Modification Proceeding

In October 2017, husband moved to modify his spousal support obligation. In an affidavit in support of modification, husband contended that basing spousal support on a "percentage of profits" is "not appropriate or equitable" and that there "has been a substantial change in my economic circumstance now that my income is more clearly established for the last four years of our marriage, when at the time support was determined in the fall of 2016, that income was uncertain." Husband also contended that "the award of spousal support was based in large part on the fact that our daughter, * * * has health issues * * * that the court found had been preventing [wife] from working full time," but that the daughter's "health issues have improved significantly since September 2016, such that Wife can now work full-time, should she choose to do so."

The trial court in the modification proceeding held a hearing on March 15, 2018, concerning husband's motion to modify. With regard to his income, husband presented evidence that showed his income for 2016 was $234,387, that his income in 2017 was $316,017, and that, in the first two months of 2018, husband's income was $106,526. Husband testified that, at the time of the dissolution trial, he did not know what the car dealership's "net profits" would be, but, after starting the job, he was told that if he did "a really good job" they could be between $400,000 and $700,000 a month, which would equate to bonuses of $40,000 to $70,000 a month. He also testified that, at the time of the dissolution trial, he anticipated that in his new job he would earn more than his 2015 income of $275,000 but did not anticipate an income "anywhere near where [the dealership] is headed."

Regarding wife's employability, during the modification hearing, husband testified that wife is "an amazing nurse" and that she "could work as much as she wants."

With regard to the parties’ daughter's health, during the modification hearing, husband testified that there had been a "100 percent" turnaround in the daughter's health and that she is "doing well." He further testified that he had no "concerns about her health," but acknowledged that she has "anxiety." Wife, for her part, testified that the daughter is doing better, but that wife has to help her with her "anxiety and health issues" every day, that the amount of care wife is providing for her is no less intense than in September 2016, and that wife receives between 5 and 20 phone calls a day from the daughter, which has affected wife's job performance.

Additionally, husband introduced evidence at the modification hearing regarding the daughter's school absences and medical appointments. As relevant to the issues before us, evidence reflected that in the academic year ending June 2017, the daughter missed 20.5 days of school, whereas in the academic year ending June 2016, the daughter had missed 42.5 days of school—a difference of 22 days.

After hearing evidence, the trial court in the modification proceeding issued a letter opinion containing the following determinations with regard to the parties’ income and the spousal support award:

"2. Husband's income formula remains at $10,000 per month plus 10 percent of the net profits, but the bonuses have vastly exceeded his expectations. Because of the bonuses, husband's 2017 income was $316,017. In January and February of 2018 alone he made a total of $106,526, which, under the spousal support formula would result in spousal support payments for those months of $47,663.

"3. Wife's income is $54.44 per hour on a part-time basis. Her 2017 W-2 indicates that she had Social Security wages of $50,615, which is approximately $4,218 per month, somewhat less than her income at the time of the divorce.

"4. A court's job in modifying a dissolution support judgment is to maintain the relative positions of the parties as set out in the initial judgment. Because of the unanticipated size of the bonuses, it would not be equitable to maintain the current spousal support formula, and the court will use its equitable powers to remedy that inequity."

As for the daughter's health, the letter opinion stated:

"6. Wife used all of her allocated Family Medical Leave time in 2017 because of the daughter's health needs, and the child still has physical and emotional issues. The daughter is, however, able to attend school with substantially fewer absences and this affords wife additional time to work. This is

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