In re Wilkins

318 Or.App. 798

510 P.3d 227

In the MATTER OF the MARRIAGE OF Lisa J. WILKINS, Petitioner-Respondent, and Todd L. Wilkins, Respondent-Appellant.

A169963

Court of Appeals of Oregon.

Submitted October 29, 2020

April 6, 2022

George W. Kelly filed the brief for appellant.

James A. Palmer filed the brief for respondent.

Before Mooney, Presiding Judge, and Pagán, Judge, and DeHoog, Judge pro tempore.

DeHOOG, J. pro tempore.

In this domestic relations case, husband appeals a general judgment of dissolution of marriage, challenging the trial court's property division and the amount of spousal support awarded to wife; he also appeals a supplemental judgment awarding wife her attorney fees. Husband raises three assignments of error. We reject without discussion his second assignment of error regarding the property division. We conclude, however, that the trial court erred in its spousal support award; we therefore reverse and remand for reconsideration of that award. As a result of that disposition, we also reverse and remand the supplement judgment.

Husband does not seek de novo review, and this is not an exceptional case in which we would exercise such review. ORS 19.415(3)(b) ; ORAP 5.40(8)(c). Thus, "we are bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record." Andersen and Andersen , 258 Or. App. 568, 570, 310 P.3d 1171 (2013) (internal quotation marks omitted).

Husband and wife married in January 2003. They have four joint children, who, at the time of the dissolution trial in December 2018, were ages 15, 13, 7, and 5. Wife also has an adult daughter from a previous relationship. The trial court awarded custody of the children to wife, subject to husband's parenting time.

The parties struggled financially during the marriage. Wife home schools the children. She completed high school but never attended college. At the beginning of the parties’ relationship, before their children were born, wife worked as a receptionist. After their first child was born, wife stopped working and remained out of the work force for approximately 15 years. At the time of the trial, wife was working 12 to 13 hours each week cleaning office buildings in the evenings and on weekends. Wife's gross monthly income is $548. She also receives food stamps, and the children are on the Oregon Health Plan.

Husband has had multiple jobs during the marriage. He began working for Telnet in February 2018, and he was employed there at the time of trial. He is paid for 50 hours of work each week, which includes 10 hours of overtime. Husband's job requires considerable travel, and he drives approximately 4,000 to 5,000 miles each month in his own vehicle, a GMC Suburban, mostly throughout Oregon and Washington. Because of that travel and because he is on standby, he receives a per diem stipend every day of the month, including weekend days. Husband testified that, to stay on budget, he considers the weekend per diem as part of his expense budget for Monday through Friday.¹ He testified that he uses the per diem for transportation, lodging, and food expenses that are associated with his employment and that the expenses and the stipend are generally "a wash"—that is, there is no extra per diem money after he pays the work-related expenses. Husband also testified that sometimes the per diem is not enough to cover his travel expenses and he has to use money from his paycheck; on occasion, however, he has saved a small amount of his per diem by sleeping in his truck instead of a hotel or stocking his truck with food instead of eating out. The parties stipulated that husband is paid $8,790 each month, of which $5,040 is wage income and $3,750 is his per diem allowance.²

At trial, wife argued that husband's total monthly income was all taxable and should be considered for purposes of spousal support. For child-support purposes, on the other hand, wife argued that the trial court could exclude the per diem from husband's monthly income when calculating the guideline support amount; it would be appropriate, however, to consider the per diem a "rebuttal" factor.

For his part, husband argued that, given the nature of the per diem payments, it was neither actual income nor taxable; that is, there was no "profit" component to the per diem because it all was necessary for his employment.

Therefore, husband contended, the trial court's spousal-support and child-support awards should both be based only on his wage income.

Ultimately, wife asked the trial court to award spousal support for 10 years in the amount of $2,000 per month if the court considered the per diem to be taxable income, and $2,500 per month if the court treated the per diem as nontaxable. The court ruled, "I'm going to order that—that he pay $2,000 a month, and I'm going to reduce that after five years down to 1,500 a month," which the court ordered husband to pay for an additional five years.

With regard to child support, the trial court agreed to a "special finding" that husband's monthly income was $5,040, which the court calculated by deducting the per diem amount. The court also determined that, for purposes of calculating child support, wife's income should be set at her earning capacity of $1,820, the equivalent of full-time work at minimum wage. The court acknowledged that wife was home schooling the children, but stated, "I know many people that do home schooling. But on the other hand, there's an obligation to do the best you can to financially support your children, too."

The trial court made various findings and rulings from the bench, starting with those related to its child-support award. As reflected in the judgment, the court considered the following findings in determining child support:

"9. The following factors have been taken into account in calculating child support:

"a. [Husband's] gross monthly income is $5,040 from wages. [Husband] is paid $3,750/month as per diem but this Court finds it appropriate to exclude such amount from [Husband's] income for purposes of the child support calculation only;

"b. [Wife's] actual income is $548/month from employment, however, this Court finds it appropriate to set [Wife's] gross income at $1,820/month (full-time minimum wage) in accordance with [OAR] 137-050-0715 for purposes of the child support calculation only; "c. Maintenance spousal support in the amount of $2,000/month for sixty (60) months payable to Wife, then the sum of $1,500/month maintenance spousal support payable to Wife for sixty (60) months;

"* * * * *[.]"

With regard to its award of spousal support, on the other hand, the court made the following findings:

"10. The following factors have been taken into account in calculating spousal support:

"a. The parties have been married over 15 years;

"b. Husband is 54 years old;

"c. Wife is 42 years old;

"d. Both parties are in relatively good health;

"e. Husband's gross income is $8,790 [per] month ;

"f. Wife's gross income is $548/month ;

"g. Wife's highest level of education is high school;

"h. The parties lived a frugal standard of living during the marriage;

"i. This Court took into account that the support will be tax-deductible to Husband and taxable to Wife when the General Judgment is entered no later than December 31, 2018."³

(Emphases added.)

On appeal, husband challenges the trial court's spousal-support award. He asserts that the court erred in imposing support in too high an amount and for too long a duration, and that, as part of its error, the court erred by (1) overstating husband's income (or alternatively by failing to take into account husband's work-related expenses, which substantially reduced that income), (2) understating wife's income, and (3) failing to consider wife's earning capacity.

In essence, husband argues that, to determine an equitable amount of spousal support, the trial court should have treated the parties’ respective incomes the same for purposes of both its child-support and spousal-support calculations. Wife contends otherwise.

A trial court may award spousal support in "an amount of money [and] for a period of time as may be just and equitable for one party to contribute to the other[.]" ORS 107.105(1)(d). "We review the trial court's ultimate determination about a just and equitable amount of support for abuse of discretion. We will uphold a support award if, given the findings of the trial court that are supported by the record, the court's determination that an award of support is just and equitable represents a choice among legally correct alternatives." Andersen , 258 Or. App. at 570, 310 P.3d 1171 (citations and internal quotation marks omitted). That is, "[w]e will not disturb the trial court's discretionary determination unless the trial court misapplied the statutory and equitable considerations required by ORS 107.105." Mitchell and Mitchell , 271 Or. App. 800, 811, 353 P.3d 28 (2015) (brackets in Mitchell ; internal quotation marks omitted).

In awarding spousal support, the trial court "shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision." ORS 107.105(1)(d). Here the court awarded maintenance support. The factors to be considered by the court in awarding spousal maintenance include but are not limited to the duration of the marriage; the age of the parties; the health of the parties, including their physical, mental and emotional condition; the standard of living established during the marriage; the relative income and earning capacity of the parties, recognizing that the wage earner's continuing income may be a basis for support distinct from the income that the supported spouse may receive from the distribution of marital property; a party's training and employment skills; a party's work experience; the financial needs and resources of each party; the tax consequences to each party; a party's custodial and child support responsibilities; and any other factors the court...