In re Wirth

319 Or.App. 169

509 P.3d 685

In the MATTER OF the MARRIAGE OF Cheryl Elaine WIRTH, Petitioner-Appellant, and Carl John Wirth, Respondent-Respondent.

A172064

Court of Appeals of Oregon.

Argued and submitted May 18, 2021.

April 20, 2022

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

Stephanie F. Wilson, Salem, argued the cause for respondent. Also on the brief was Feibleman & Case, P.C.

Before Mooney, Presiding Judge, and Pagán, Judge, and DeVore, Senior Judge.^*

MOONEY, P. J.

Wife appeals a general judgment of dissolution, specifically challenging the spousal support award. She contends that the trial court erred in (1) calculating husband's income, (2) calculating wife's income, (3) denying wife's request for transitional spousal support, and (4) limiting the spousal support award to ten years. For the reasons explained below, we reject wife's arguments, and we affirm.

Wife's opening brief is divided into four sections, each addressing an "assignment of error."¹ In the concluding paragraph of each section, wife "asks that this court reverse and, on de novo review," set spousal support, award transitional support, and so forth according to the content of each section. She asks that the case be remanded if we "choose[ ] not to review de novo ." Although wife states that the standard of review is for legal error, we nevertheless understand that she is requesting that we exercise our discretion under ORS 19.415(3)(b) to review this matter de novo . Wife does not, however, "concisely state the reasons why the court should do so," as required by ORAP 5.40(8)(a). In fact, she does not state any reasons at all. Because wife has not provided us with any reason to except this case from the presumption against the exercise of discretion to review de novo , ORAP 5.40(8)(c), we decline to do so. We review for legal error and are, therefore, "bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record." Colton and Colton , 297 Or. App. 532, 534, 443 P.3d 1160 (2019). We state the relevant facts—which are largely undisputed—in accordance with that standard.

The parties were married for 31 years. In 2018, wife filed a petition for dissolution. At the time of trial in 2019, wife was 50 years old and husband was 52. They have two adult children.

Wife was employed outside the home during much of the marriage. She completed a twelve-month dental assistant program in 1995 and, after that, worked as a dental assistant until 2013. Wife injured her back in one or more motor vehicle accidents and was not again employed until 2015 when she worked part-time as a cashier and then as a receptionist. She has not worked outside the home since December of 2015.

In 2018, wife enrolled in cosmetology school. At the time of trial, she anticipated that she would graduate in February 2020. Wife testified that, once she graduated, she would be required to pay off her student loan debt to be eligible to take the licensing exam. She also estimated that, once licensed, it would take "a couple months" to find employment.

Husband works for Georgia Pacific as a material handler. In the two years before trial, he was filling in as a finished product handler for another employee who had been on extended medical leave. As a finished product handler, husband earned a higher hourly wage than he did as a material handler. In each of those positions, husband was required to work 12-hour shifts, with 4 hours of each shift counting as overtime. Georgia Pacific used a partner system where, when one employee went on vacation, the employee's partner would cover the vacationing employee's shifts and receive overtime. Employees were allowed to forgo those overtime hours if another employee volunteered to take them.

Husband worked a substantial amount of overtime, both mandatory and voluntary, in the three years before trial. He testified that, during that period, many employees were "willing to give away" their overtime, so he was able to "swap around [shifts] until I had all I could get." In those three years, he worked at least five 12-hour shifts a week. His annual income in 2018 was $106,046.

At trial, husband presented evidence that his annual earnings would decrease. Husband's supervisor, Hathaway, testified that he anticipated that the person for whom husband had been filling in would soon return to work because he had been "released to come back to work" and that, at that point, husband would return to his original position as a material handler. Hathaway also testified that the company was hiring new material handlers to "fill[ ] in the holes," and that, because those employees would start with only one week of vacation, husband would have less opportunities to work voluntary overtime shifts.

Wife sought $2,500 per month in spousal maintenance support for an indefinite period and $1,000 per month in transitional support for a period of 24 months. Husband proposed $1,500 per month in maintenance support for a period of 15 years. He asked the trial court not to award transitional support at all.

The trial court ultimately awarded wife $2,000 per month in maintenance support for a period of 10 years and denied her request for transitional support. In support of its determination that transitional support was not appropriate, the court made the following findings, as reflected in the judgment of dissolution:

"13.1 Wife was enrolled in Cosmetology school at the time of the trial; however, the Court found Wife was able to work as a dental assistant;

"13.2 Wife has training as a dental assistant;

"13.3 There was no medical substantiation that Wife was unable to work as a dental assistant;

"13.4 The Court found that Wife could return to work as a dental assistant making approximately $35,000 per year."

The court incorporated those findings regarding wife's income and made additional findings in support of its award of maintenance support:

"The Court found that Wife is capable of earning $35,000 per year for the reasons listed above. Husband is employed with Georgia Pacific as a forklift operator and earned $106,046 in 2018 from that employment[.] However, based on the testimony of Mr. Hathaway and evidence received[,] the Court found that Husband's income for determining spousal support should be based on $85,000 per year for the following reasons:

"14.5.1 Husband's income will decrease through no fault of his own when he returns to be a Material Handler rather than the Finished Product Handler that he was filling in for;

"14.5.2 Not all of the overtime is mandatory, and the Court will not force Husband to work non-obligatory overtime;

"14.5.3 Husband's company has been in the process of hiring additional employees for over a year causing a decrease in available overtime;

"14.6 Wife attended schooling to work as a dental assistant during the marriage;

"14.7 The Court found that 10 years of support was an appropriate duration given the physically demanding nature of Husband's work as a forklift driver and his age."

On appeal, wife first contends that "the [trial] court erred in its ruling regarding husband's income" and, as a result, set her spousal support award "too low." She argues that the trial court erred when, in determining the amount of maintenance spousal support, it calculated husband's income without including wages for his voluntary overtime. Husband responds that the court did not err, because the evidence established that there were "changes already occurring" at his workplace that reduced the amount of voluntary overtime available to him.

ORS 107.105(1)(d)(C) sets forth a nonexclusive list of factors that the court is to consider in awarding spousal maintenance support. Earning capacity is among those listed factors. And as we have said, in "assessing earning capacity, the court considers a range of considerations other than actual current income." Crump and Crump , 138 Or. App. 362, 366, 908 P.2d 839 (1995). In Sigler and Sigler , 133 Or. App. 68, 71-72, 889 P.2d 1323 (1995), we held that the trial court erred in excluding regularly earned overtime wages from husband's income when calculating spousal support. We explained that "[o]vertime is appropriately considered" in calculating support "when it is earned on a regular basis." Id. at 71, 889 P.2d 1323. But Sigler and Crump were both cases that we reviewed de novo . We are not reviewing this case de novo . Our review is much more limited, deciding only if...