Summary
holding that where payments to a third party are designed to reduce the assets available for division in a dissolution proceeding, money so paid may be included in the property division
Summary of this case from Farmers Ins. Co. of Or. v. GelfandOpinion
92-04-24, 789-E; CA A79125
Argued and submitted January 28, 1994.
Remanded in part with instructions; otherwise affirmed April 27, 1994.
Appeal from Circuit Court, Malheur County, J. Burdette Pratt, Judge.
Mike Kilpatrick argued the cause for appellant. With him on the brief was Kilpatricks.
Max S. Taggart, II, argued the cause and filed the brief for respondent.
Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.
PER CURIAM
Remanded with instructions to enter modified judgment awarding wife an additional judgment against husband for $18,750; otherwise affirmed. Costs to wife.
Wife appeals from a dissolution judgment. She contends that the trial court erred in its division of the property. On de novo review, we conclude that the trial court erred in failing to make an adjustment to the division based on a $37,500 payment that husband made to his brother shortly before trial.
Wife's arguments challenging the amount and duration of spousal support awarded and the failure to order husband to carry life insurance with her as a beneficiary do not require discussion.
The trial court stated this amount as $35,000 in its written opinion. However, husband indicated that that figure was only an estimate, and later read the $37,500 amount into the record from the cancelled check.
Husband gave the money to his brother, allegedly in payment of several overdue installments on a note. The trial court found, and we agree, that the payment was a sham designed to reduce assets for the purpose of this dissolution. The fact that the money was income from separate property does not change the fact that it was marital income and, therefore, marital property. Stice and Stice, 308 Or. 316, 325, 779 P.2d 1020 (1989). As a result, the money paid to husband's brother should have been included in the property distribution. Howard and Howard, 103 Or. App. 342, 349, 798 P.2d 683 (1990). Under the circumstances, we conclude that wife should receive one-half of the $37,500.
Husband does not argue that the money came from a nonmarital source, nor does he argue that he rebutted the equal contribution presumption as to it.
Remanded with instructions to enter modified judgment awarding wife an additional judgment against husband for $18,750; otherwise affirmed. Costs to wife.