Opinion
No. 98828, CA 8772
Argued October 18, affirmed as modified December 5, 1977
Appeal from Circuit Court, Marion County.
Richard D. Barber, Judge.
Gary G. Jones, Salem, argued the cause for appellant. With him on the brief was Rhoten, Rhoten and Speerstra, Salem.
H. David Price, Salem, argued the cause for respondent. On the brief was Jerry G. Kleen, Salem.
Before Schwab, Chief Judge, and Johnson and Joseph, Judges.
Affirmed as modified. No costs to either party.
JOHNSON, J.
Joseph, J., dissenting opinion.
In this dissolution proceeding, the wife appeals from the provisions of the decree dividing the marital property and awarding her spousal support for three years. The parties are both 59 years of age. They were married for 34 years and have two emancipated children over 21 years of age. The wife attended college for three and one-half years, last attending in 1939. She has had no significant employment during the marriage and suffers from a variety of physical ailments. She does not have a social security number or driver's license and does not drive.
The husband is a plant maintenance repairman at Hillcrest School and had a gross income in 1976 of $13,454. He currently has a net monthly take-home pay of $794. If the husband retires at 62, he will receive at least $200 a month in retirement benefits from the Public Employes Retirement System (PERS). There is no evidence in the record of what his benefits would be if he were to retire at age 65. The husband also suffers from health problems.
The trial court divided the marital property as follows:
Wife Husband
Equity in residence $19,250 3.8 acres of land $35,000 Household goods 1,000 Equity in truck and camper 2,500 Savings account balance 200 Honda motorcycle 1,500 Checking account 575 Life insurance policies value undetermined PERS retirement account balance 5,147 ---------- $44,722 Less family debts and wife's attorney fees 4,217 --------- ---------- $20,450 $40,505
The trial court further awarded to the wife the lump sum of $14,400 in spousal support to be paid at the rate of not less than $400 a month, or $400 a month for three years.
This case presents a situation where we must evaluate the division of marital property and the award of spousal support together in determining whether the trial court's decree was reasonable. Terman and Terman, 30 Or. App. 1163, 569 P.2d 673 (1977). While it is common in marriages of this long duration to attempt an equal division of property, there is no hard and fast formula. Rather, the objective is to "put the two parties in a position so that they may leave the marriage in a self-sufficient status." Slauson and Slauson, 29 Or. App. 177, 184, 562 P.2d 604 (1977). It is apparent that this decree does not place the parties in such a position. While the wife was awarded the family residence, it is subject to $19,000 balance due on the mortgage. The monthly payments on the house alone are presently $221. It is unlikely that the wife can attain meaningful employment, and she has no source of income aside from the support payments which will cease in three years. While because of the duration of their marriage the wife is entitled to a portion of her husband's social security benefits upon his retirement, she cannot draw them until he retires, and there is no guarantee that the husband will retire within three years. Thus, the wife has no security beyond the termination of her support payments.
In contrast, the husband is gainfully employed and will receive salary increases prior to retirement. Upon retirement, he will draw PERS as well as social security benefits. While he was required to assume the family debts, in addition to paying the wife's attorney fees and $14,400 in support, he was awarded unencumbered real property worth $35,000.
Considering all the circumstances, we think the best way to place the parties in positions of self-sufficiency is to award the wife a greater share of the assets. For that reason, we modify the decree to require that the 3.8 acre parcel be sold within one year of the date of the mandate, and the proceeds divided so that the wife receives 60 percent and the husband receives 40 percent. Correspondingly, we do not believe that the husband should be saddled with the obligation of paying $400 a month in support beyond one year from the date of the mandate.
Affirmed as modified. No costs to either party.
My review persuades me that wife will require some income and that neither the trial court's nor the majority's property division is appropriate. I would modify the decree by ordering the realty to be sold immediately, subject to trial court approval of price and terms, and one-half of the proceeds to be added to wife's share of the property division. I would also award her $200 a month as permanent support. See Grove and Grove, 280 Or. 341, 571 P.2d 477 (1977).