# Owens and Owens

> Court of Appeals of Oregon · November 4, 2020 · 307 Or. App. 418

URL: https://www.frixlaw.com/law-library/cases/10600373

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** November 4, 2020
- **Citations:** 307 Or. App. 418; 477 P.3d 422
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Tookey
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10600373. Public record. Not legal advice.