Owens and Owens

418

Argued and submitted December 6, 2019, reversed November 4, 2020, petition

for review denied February 19, 2021 (367 Or 559)

In the Matter of the Marriage of

Dana Eleanor OWENS,

Petitioner-Appellant,

and

Ron F. OWENS,

Respondent-Respondent.

Clackamas County Circuit Court

16DR03055; A168584

477 P3d 422

Wife appeals a supplemental judgment modifying the amount of spousal sup-

port that she receives from husband. The trial court determined that there had

been a substantial, unanticipated change in economic circumstances sufficient to

justify modification of the spousal support award due to (1) husband’s increased

income and (2) the parties’ daughter’s increased school attendance, which, in the

trial court’s view, allowed wife additional time to work. On appeal, wife contends

that the trial court erred, because husband failed to meet his burden of proving

a substantial, unanticipated change in economic circumstances. Held: The trial

court erred. First, at the time of the dissolution judgment, it was anticipated that

husband’s income would increase. Therefore, husband’s increased income was not

an “unanticipated” change in economic circumstances. Second, on this record, the

daughter’s increased school attendance, and mother’s concomitant ability to work

additional hours, was not a “substantial” change in economic circumstances.

Reversed.

Thomas J. Rastetter, Judge.

Peter Bunch argued the cause for appellant. Also on the

briefs was The Law Firm of Peter Bunch, LLC.

Kimberly A. Quach 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.

Reversed.

Cite as 307 Or App 418 (2020) 419

TOOKEY, J.

Wife appeals a supplemental judgment modifying

the amount of spousal support that she receives from hus-

band. Among other points, in her third assignment of error,

she contends that the trial court in the modification proceed-

ing erred when it changed husband’s spousal support obli-

gation 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 nine respec-

tively. As explained further below, the daughter has “physi-

cal 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 compen-

sation 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 antici-

pated starting a new job in late 2016 as general manager at

a car dealership that would be opening soon. Husband testi-

fied 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

1

Our resolution of wife’s third assignment of error obviates the need to

address wife’s other two assignments error.

420 Owens and Owens

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 disso-

lution 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.

Cite as 307 Or App 418 (2020) 421

“(3) In 2014, Husband earned $228,000, gross. Hus-

band 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 sup-

port awarded to Wife is just and equitable under all of the

circumstances.”

The judgment then awarded wife indefinite mainte-

nance spousal support of $2,200 per month and “50 percent

of Husband’s net profits received that arises from his employ-

ment.” Husband did not appeal the dissolution judgment.

B. The Modification Proceeding

In October 2017, husband moved to modify his spou-

sal support obligation. In an affidavit in support of modifi-

cation, 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 estab-

lished 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

422 Owens and Owens

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 modifi-

cation 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.

Cite as 307 Or App 418 (2020) 423

After hearing evidence, the trial court in the mod-

ification 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, some-

what less than her income at the time of the divorce.

“4. A court’s job in modifying a dissolution support judg-

ment is to maintain the relative positions of the parties as

set out in the initial judgment. Because of the unantici-

pated size of the bonuses, it would not be equitable to main-

tain 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 a substantial and unanticipated change in circum-

stances allowing the court to modify spousal support.”

In a supplemental judgment, the trial court changed

the maintenance spousal support award to require husband

to pay wife $3,500 per month for seven years.

II. ANALYSIS

Under ORS 107.135(3)(a), a court “may set aside or

modify a spousal support award if there has been a substan-

tial change in economic circumstances sufficient to justify

the court’s reconsideration of the award.” Luty and Luty,

245 Or App 393, 399, 263 P3d 1067 (2011). The “substantial

change in economic circumstances,” however, “must have

424 Owens and Owens

been unanticipated when the court entered the last relevant

judgment in the dissolution proceeding.” Id. at 399-400.

Whether there has been a “substantial change in

[the] economic circumstances of a party sufficient to war-

rant reconsideration of an award of spousal support under

ORS 107.135(3)(a) presents a mixed question of fact and

law.” Tilson and Tilson, 260 Or App 427, 431, 317 P3d 391

(2013) (internal quotation marks omitted). “We review the

trial court’s implicit and explicit findings of historical fact

regarding the parties’ economic circumstances to determine

whether those findings are supported by any evidence in the

record.” Id. “We review the court’s determination that those

facts constitute a ‘substantial change in economic circum-

stance of a party’ under ORS 107.135(3)(a) for legal error.”

Id. at 431-32.2

In this case, for the reasons that follow, we conclude

that the trial court erred in determining that there had

been a substantial change in economic circumstances suf-

ficient to justify the court’s reconsideration of the indefinite

spousal support awarded in the dissolution judgment.

A. Husband’s Income

We first consider husband’s income. On appeal,

wife argues, among other points, that the increase in hus-

band’s income is not a “substantial, unanticipated change

of circumstances.” Wife contends that there is “no evidence

in the record to support the modification trial court’s find-

ings that Husband’s income ‘vastly exceeded’ expectations”

2

“A two-part framework governs the determination whether, and to what

extent, an award of spousal support should be modified under ORS 107.135(3)(a).”

Tilson, 260 Or App at 432. “The threshold question is whether there has been a

substantial, unanticipated change in economic circumstances since the time of

the earlier award.” Id. (internal quotation marks and brackets omitted). “Absent

a qualifying change in circumstances, a trial court lacks authority to modify an

award of spousal support.” Id. “If the requisite change is present, then the trial

court must determine what amount of support is just and equitable under the

totality of the circumstances.” Id. (internal quotation marks omitted).

As explained below, we conclude that the trial court erred in determining

that there had been a substantial change in economic circumstances sufficient

to justify the court’s reconsideration of the indefinite spousal support awarded in

the dissolution judgment. Therefore, we need not address whether the amount of

spousal support awarded by the trial court in the modification proceeding was

“just and equitable under the totality of the circumstances.”

Cite as 307 Or App 418 (2020) 425

and that there is no “case law supporting the proposition

that Husband’s increased income is grounds for a down-

ward adjustment of the amount and duration of his support

obligation.” Husband, for his part, argues that his “unan-

ticipated 2017 variable earnings constituted a substantial,

unanticipated change in circumstances.”3

As we have previously explained, “A party’s income

from employment is not an ‘unanticipated’ change in eco-

nomic circumstances where a trial court anticipated such

employment and income when making the award of spousal

support.” Varro and Varro, 300 Or App 716, 737, 454 P3d 35

(2019).

In this case, during the dissolution trial, husband

testified that he expected that he would earn more at his

new job as general manager of the car dealership than he

did at his prior job, though he did not know precisely how

much more, and wife testified that husband could earn

$30,000 to $60,000 a month at his new job. Husband’s 2017

income averages out to approximately $26,335 dollars a

month, which is less than wife testified husband could be

making once the dealership got “up and going.”

The trial court in the dissolution proceeding found

that, although husband reported having “no idea” what his

income would be in his new position, husband “anticipate[d]

his income will exceed his 2014 income within two years.”

That is precisely what occurred in this case. The

car dealership husband works at is, apparently, doing well,

and husband is now earning more than he did previously,

3

Wife also argues, among other points, that the trial court in the modifi-

cation proceeding erred “in declaring its intention to modify the support provi-

sions in the divorce judgment to correct a perceived inequity.” (Emphasis added.)

If the trial court modified spousal support to correct an inequity without con-

cluding that there had been a substantial, unanticipated change in economic

circumstances, that would indeed be error. See ORS 107.135(3)(a); Patterson and

Patterson, 293 Or App 8, 12, 427 P3d 228 (2018) (“To modify an award of spousal

support, the court must determine whether there has been a substantial, unan-

ticipated change in economic circumstances since the time of the original award.”

(Internal quotation marks omitted.)). In this case, in light of the trial court’s find-

ings that husband’s bonuses “vastly exceeded” husband’s expectations and the

“unanticipated size” of the bonuses, we understand the trial court to have con-

cluded that husband’s increased income was a substantial, unanticipated change

in economic circumstances under ORS 107.135(3)(a).

426 Owens and Owens

as was expected by the parties at the time of dissolution.

Husband’s expectation that he would eventually earn more

at his new job than he did previously was expressly recog-

nized in the dissolution judgment and was a “factor” con-

sidered by it when it awarded wife “indefinite” spousal sup-

port. That husband realized the “upside” to his new position

sooner than he expected—i.e., that his income for 2017 is

higher than he had expected—is not a “substantial change

in economic circumstances” sufficient to justify the trial

court in the modification proceeding’s reconsideration of the

initial spousal support award, particularly where husband’s

income remains variable and his compensation structure at

his new employer—i.e., “$10,000 per month plus 10 percent

of the net profits”—has not changed. Weber and Weber, 337

Or 55, 68, 91 P3d 706 (2004) (“A post-dissolution increase

in a payor spouse’s income does not of itself ordinarily con-

stitute a substantial change in economic circumstances

requiring a court to reconsider a previous spousal support

award.”). That is, husband’s income remains tied to market

forces, and, as the Supreme Court has noted, the legislature

did not intend for ORS 107.135(3)(a) to be “an open-ended

invitation to relitigate support judgments any time that

market forces provide an economic windfall to one spouse or

the other.” 4 Weber, 337 Or at 68 n 9.

B. Wife’s Ability to Work

As noted above, the trial court in the modification

proceeding found that the daughter continues to have “phys-

ical and emotional issues,” but that she is “able to attend

school with substantially fewer absences and this affords

wife additional time to work,” and concluded that that is

“a substantial and unanticipated change in circumstances

4

We observe that, through a “variety of property and income arrange-

ments,” courts “can account for both the past and future earning potential of

either spouse.” See Weber, 337 Or at 69 (so noting with respect to parties). That

is what we understand the trial court in the dissolution proceeding to have done

when structuring the spousal support award to include a percentage of husband’s

bonuses from employment.

We highlight that our conclusion in this case that the trial court in the mod-

ification proceeding erred is not an endorsement of the “property and income

arrangements” in the dissolution judgment. But a modification request is not a

“mechanism to reargue the original decision.” Newton and Newton, 122 Or App

52, 56, 857 P2d 171, rev den, 318 Or 25 (1993).

Cite as 307 Or App 418 (2020) 427

allowing the court to modify spousal support.” We thus

understand the trial court to have concluded that daugh-

ter’s increased school attendance constitutes a substantial

change in economic circumstances. As also noted above, in

the academic year ending June 2017, the daughter missed

20.5 days of school, whereas in the academic year ending

in June 2016, the daughter missed 42.5 days of school—a

difference of 22 days.

On appeal, wife argues that the trial court in the

modification proceeding erred because “no evidence exists

in the record that quantified whether and how much wife’s

income could increase as a result of the ‘additional time to

work’ the trial court attributed to wife,” and notes that the

court found that her actual income had decreased since

the dissolution proceeding. Husband, for his part, argues,

“[b]ased on all evidence presented” during the modifica-

tion proceeding, including evidence presented regarding

the daughter’s health and school absences, “the trial court

determined [wife] was able to work more than she had in

2017,” and the trial court’s “direct and inferential findings

bind this Court.”

The daughter’s increased school attendance, and

mother’s concomitant ability to work additional hours, is

perhaps a change in economic circumstances but, on this

record, we conclude that the trial court in the modification

proceeding erred in concluding it is a “substantial” one.

In this case, the only evidence supporting wife’s

ability to work additional hours now that the parties’ daugh-

ter is missing less school was husband’s testimony that wife

is “an amazing nurse” and that “she could work as much as

she wants.” No evidence was offered during the modifica-

tion proceeding regarding how many hours per day the par-

ties’ daughter is in school; whether wife’s employer (or any

employer in her field where she could earn a similar hourly

wage) offered shifts that are coextensive with the hours the

parties’ daughter is in school; or how many of those partic-

ular shifts wife would be able to work given her employer’s

(or any employer’s) needs. Due to that lack of evidence, it is

speculative to infer a “substantial” change in economic cir-

cumstances merely based on the “additional time to work”

428 Owens and Owens

afforded to wife by the parties’ daughter’s increased school

attendance. Hannemann v. Anderson, 251 Or App 207, 215,

283 P3d 386 (2012) (“[A]n inference is reasonable only if it

is based on an experience of logical probability that an ulti-

mate fact will follow a stated narrative or historical fact.”

(Internal quotation marks omitted.)).

Accordingly, the trial court in the modification pro-

ceeding erred in determining that wife’s increased ability

to work as a result of the parties’ daughter being able to

attend school an additional 22 days a year was a “substan-

tial” change in economic circumstances.5

III. CONCLUSION

In sum, we conclude that the trial court in the

modification proceeding erred in determining that there

had been a substantial change in economic circumstances

sufficient to justify the court’s reconsideration of the indef-

inite spousal support awarded in the dissolution judgment.

Consequently, we reverse.

Reversed.

5

We also observe that the dissolution judgment reflects that wife’s income

was $4,982 per month at the time of dissolution. At the modification hearing,

wife’s income was $4,218 per month—which is equivalent to a decrease in wife’s

income of $9,168 annually. Assuming wife could work 8-hour days an additional

22 days per year, at wife’s hourly rate of $54.44, she would earn an additional

$9,581.44 annually. That is only an increase of $413.44 in her annual income

from her income as reflected in the dissolution judgment, which was entered

a mere six months prior to husband’s motion to modify. That does not consti-

tute a “substantial” change in economic circumstances. See, e.g., McKinnon and

McKinnon, 256 Or App 184, 188, 300 P3d 257 (2013) (“The slight increase in

wife’s income does not constitute a substantial change in circumstances.”).