In Re Marriage of Weber

FILED: May 27, 2004

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Marriage of

LARRY WEBER,

Petitioner on Review,

and

MARILYN WEBER,

Respondent on Review.

(CC C95-1232DR; CA A113178; SC S49905)

On review from the Court of Appeals.*

Argued and submitted September 4, 2003.

J. Michael Alexander, of Swanson, Lathen, Alexander &

McCann, PC, Salem, argued the cause and filed the briefs for

petitioner on review.

Gary Zimmer, of Zimmer & Bunch, LLC, Portland, argued the

cause for respondent on review. With him on the briefs was Cecil

Rennich-Smith.

Before, Carson, Chief Justice, and Gillette, Durham, Riggs,

De Muniz, and Balmer, Justices.**

DE MUNIZ, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed and the case is

remanded to the circuit court for further proceedings.

Durham, J., dissented and filed an opinion.

*Appeal from Washington County Circuit Court,

Steven L. Price, Judge. 184 Or App 190 , 56 P3d 406 (2002).

**Kistler, J., did not participate in the consideration or

decision of this case.

DE MUNIZ, J.

The issue in this marriage dissolution case is whether,

under ORS 107.135, a post-dissolution increase in a payor

spouse's annual income is a substantial change in economic

circumstance that permits the reconsideration of a payor spouse's

support obligation. Husband, the payor in this case, is a

physician. In the months preceding the parties' 1994 marriage

dissolution, husband's income had declined significantly due to

changes in the medical profession. The parties resolved their

divorce by stipulated dissolution judgment. That judgment

presumed that husband's reduced income level would continue

indefinitely and calculated wife's spousal support based on that

amount. Within three years of the parties' marriage dissolution,

however, husband's income had returned to the level that husband

and wife had enjoyed before husband's income began to decline.

In 1999, wife moved to modify the award of spousal support based

on husband's increased income, and the trial court granted that

motion.

Husband appealed, and the Court of Appeals affirmed.

Weber and Weber , 184 Or App 190 , 56 P3d 406 (2002). This court

allowed husband's petition for review. We limit our review to

questions of law, ORS 19.415(4) and, on review, we hold that the

post-dissolution increase in husband's income is not a

substantial change in economic circumstance under ORS 107.135

that permitted the reconsideration of husband's spousal support

obligation. We therefore reverse the decision of the Court of

Appeals and the judgment of the trial court.

We state the facts as they were presented in the Court

of Appeals' opinion below:

"The parties were married in 1971 while in their

junior year of college. At the time of the dissolution

in 1995, both parties were 45 years old, and their two

sons were 14 and 10, respectively. Wife obtained a

master's degree in special education during husband's

first two years of medical school. Husband's medical

training lasted a total of seven years, and wife

provided family support through teaching employment

during the remaining five of the seven years. When

husband entered the workforce as a physician, the

parties agreed that wife would stay at home to start

their family and raise the children. Wife was a

stay-at-home parent for the remainder of the

marriage--approximately 14 years.

"During the last six years of the marriage,

husband's professional income, including a $30,000

annual pretax contribution to his retirement plan,

averaged more than $260,000 per year. The parties

enjoyed a lifestyle commensurate with that level of

income, including many vacations, a substantial gift

and entertainment budget, and late-model vehicles.

"In 1994, after filing a petition to dissolve the

parties' marriage, husband told wife that his income

for that year would be drastically reduced because of

changes in his practice that had resulted in a

substantial reduction in his workload. In a letter to

wife, husband stated that his 1994 practice income

likely would be less than $150,000 and that 'the bottom

[was] not in sight.' Husband's attorney restated that

position in two letters to wife's attorney, and husband

provided letters from other physicians with whom he

practiced affirming that there was little or no

expectation that husband's income would return to its

previous level.

"Based on the foregoing information, the parties

agreed to a stipulated judgment of dissolution that

presumed an income level of $150,000 for husband. That

presumed income was not explicitly posited in the

spousal support provision of the judgment, but the

child support worksheet filed with the judgment

expressly included it. The judgment presumed that

wife's gross monthly income was $823. The parties

agreed that husband would pay $3,560 per month in

spousal support for four years beginning in June 1995

and that, thereafter, support would continue

indefinitely in the amount of $2,500 per month.

Husband agreed not to seek a reduction in spousal

support for the first four years after the judgment was

entered should wife remarry, cohabit with another

person, or obtain employment. Husband was required to

pay child support for each child until the last day of

July following the child's graduation from high school.

Thereafter, husband was to be solely responsible for

the cost of four years of college for each child. The

parties agreed that when the older child graduated from

high school, child support would be recalculated

without the parties having to show an unanticipated,

substantial change of circumstances.

"In September 1999, after the parties' older son

graduated from high school, husband filed a motion to

modify his child support obligation. In response to

that motion, and particularly with reference to the

income information provided by husband, wife filed a

motion to modify the judgment to increase husband's

spousal support obligation. Information disclosed in

the modification proceeding showed that husband's

income and standard of living had, by 1997, returned to

their pre-1994 levels. From 1997 through 1999,

husband's pretax income averaged $249,000 and, at trial

in this proceeding, husband testified that he expected

his year-2000 income to range between $240,000 and

$270,000. Husband testified that he had taken several

foreign vacations since the dissolution and had

purchased a new vehicle. Husband also testified that

he had not done any additional training or taken any

courses to improve his skills or earning capacity since

the dissolution judgment was entered in 1995.

"At the time of the modification hearing in 2000,

wife was a half-time public school teacher earning

$1,566 per month. Wife also was attempting to

establish herself as an artist but had income averaging

only $60 per month from that work. In addition, wife

had passive income of $220 per month and spousal

support of $2,500 per month, yielding total monthly

income of about $4,300. Wife testified that her

lifestyle had deteriorated since the dissolution; she

had taken fewer vacations than before, she had traded

her late-model vehicle in for an older car, and she now

bought her clothes at resale shops.

"There was no evidence in the modification

proceeding that, in negotiating the stipulated judgment

of dissolution in 1995, husband had misrepresented his

then-current income or that his expectation and

assertion that it would not increase in the future were

unreasonable."

184 Or App 192 -94.

The trial court granted wife's motion for increased

support. In a written decision, the trial court reasoned that it

was proper to increase support because an increase would permit

wife to enjoy a standard of living not overly disproportionate to

the parties' marital standard. In that regard, the trial court

wrote:

"'This is not a subsistence case; it is a standard

of living case. Wife is not starving. Husband's

monthly expenses reveal a comfortable standard of

living, roughly comparable with that of the marriage.

Wife lives substantially below the marital standard of

living. Now that [h]usband has resumed that lifestyle,

[w]ife is entitled to spousal support based on that

lifestyle.'" (1)

Id. at 194 .

A majority of the judges of the Court of Appeals

affirmed the trial court's judgment. (2) In its opinion, the

majority acknowledged that, in Feves v. Feves, 198 Or 151 , 254

P2d 694 (1953), this court had held that a post-dissolution

increase in a payor spouse's income ordinarily does not

constitute changed circumstances warranting an attendant increase

in spousal support. However, the Court of Appeals majority

determined:

"This is not an ordinary case. Here, the evidence

established that husband had resumed an income level

commensurate with the parties' predissolution standard

of living and that the resumption was not attributable

to any post-dissolution enhancement of husband's own

personal qualifications or accomplishments. Thus, wife

was not seeking increased support based on

post-dissolution income increases (1) that exceeded the

marital standard of living; or (2) that wife had not,

by reason of her marital contributions to husband's

earning capacity, helped produce."

Weber, 184 Or at 202. From that determination, the majority held

that Feves

"does not control where, as here, wife has established

that (1) the post-dissolution increase in husband's

income was not the product of any post-dissolution

enhancement of his personal qualifications or

accomplishments and (2) it merely restored husband's

income to a level that is consistent with the standard

of living that the parties enjoyed during the

marriage."

Id. Ultimately, the majority concluded that the trial court did

not err in increasing wife's spousal support based on husband's

increased post-dissolution income.

Instead of focusing on the modification statute, ORS

107.135, the parties have focused, as did the majority and the

dissent in the Court of Appeals, exclusively on the application

of this court's decision in Feves . (3) Although we ultimately

conclude that the Feves decision contributes to our understanding

of ORS 107.135 and, therefore, is important to the resolution of

this case, we consider it important to highlight the position

that Feves and other decisions of this court occupy within the

hierarchical order of family law. To the extent that the

legislature has enacted pertinent statutes, those statutes are

the primary source of law and policy regarding family law issues

in Oregon. This court is responsible for applying those

legislative directives.

In this case, ORS 107.135(3)(a) and (4)(b) are

pertinent to the resolution of wife's motion to modify the

spousal support award. ORS 107.135(3) provides, in part:

"In a proceeding under this section to reconsider

the spousal or child support provisions of the

judgment, the following provisions apply:

"(a) A substantial change in economic

circumstances of a party, which may include, but is not

limited to, a substantial change in the cost of

reasonable and necessary expenses to either party, is

sufficient for the court to reconsider its order of

support * * *."

ORS 107.135(4) also states, in part:

"In considering under this section whether a

change in circumstances exists sufficient for the court

to reconsider spousal or child support provisions of a

judgment, the following provisions apply:

"(a) The court or administrator, as defined in ORS

25.010, shall consider income opportunities and

benefits of the respective parties from all sources,

including but not limited to:

"(A) The reasonable opportunity of each party, the

obligor and obligee respectively, to acquire future

income and assets.

"(B) Retirement benefits available to the obligor

and to the obligee.

"(C) Other benefits to which the obligor is

entitled, such as travel benefits, recreational

benefits and medical benefits, contrasted with benefits

to which the obligee is similarly entitled."

As noted, neither party argues that a particular word

or phrase used in the text of either ORS 107.135(3)(a) or (4)(a)

compels a particular result in this case. For example, wife does

not assert that there has been "a substantial change in the cost

of reasonable and necessary expenses to either party," ORS

107.135(3)(a), or that either party's reasonable opportunity "to

acquire future income and assets" has changed substantially, ORS

107.135(4)(a)(A). Rather, as we understand it, the basis of

wife's claim is the court's power to modify a spousal support

award under ORS 107.135(3)(a). We, therefore, must determine

whether there has been a "substantial change in economic

circumstances of either party" that is "sufficient for the court

to reconsider" a previous order of support.

The statutory authority permitting courts to modify a

previous spousal support award has existed in this state for well

over 100 years. See Corder v. Speake , 37 Or 105, 108 , 51 P 647

(1898) (acknowledging that Hill's Annotated Laws § 502

"authorizes the court, upon motion, to set aside, alter, or

modify so much of the decree of divorce as relates to the

[support] of either party"). Although the legislature had

empowered the courts to modify spousal support, nothing in the

text of the early statutes explained what circumstances justified

a reconsideration of spousal support or what weight a court

should accord those circumstances in deciding whether to modify

support. Because the legislature had not enumerated those

circumstances in the statutes, the courts were left to determine

the relevance and weight of the circumstances offered by the

parties to justify a reconsideration of a previous spousal

support award.

This court did so. For example, in Brandt v. Brandt ,

40 Or 477 , 67 P 508 (1902), this court articulated a formulation

of the existing spousal support modification rule:

"Our statute, however, as construed by the decisions

above cited, is broad enough to permit of the setting

aside, alteration, or modification of the provision

made for the maintenance of either spouse. To set

aside is 'to annul, to make void': Bouvier, Law Dict.

Anything less than an annulment would be an alteration

or modification. So it would seem that the court is

clothed with power adequate to set aside, as well as to

alter or modify, a provision for permanent alimony or

allowance as the exigencies of the case may require.

" Notwithstanding, the allowance should be treated

as res adjudicata as to the then existing circumstances

and conditions, and not subject to annulment or

modification, except upon new conditions subsequently

arising , or, perhaps, upon facts occurring before the

decree, of which the party was excusably ignorant at

the time of its rendition[.]"

Id. at 485 (emphasis added). It was only through the

adjudication of individual cases over a number of years that this

court formulated, refined, and gave content to the "new

conditions subsequently arising" rule stated in Brandt . Feves

was one of those cases.

When this court decided Feves in 1953, neither the

modification statute (4) nor case law provided a definitive

answer to the question whether a post-dissolution increase in a

payor spouse's income could, without more, permit the court to

order an upward modification of support payments. The husband in

Feves was a physician who "had not yet become well established in

his chosen profession at the time of divorce." 198 Or at 162 .

When he and his wife dissolved their marriage, the husband

agreed, as part of the divorce settlement, to pay monthly support

to the wife as long as she remained unmarried; the trial court

subsequently incorporated that agreement into the resulting

divorce decree. Id. at 153 . Eight years later, the parties

entered into a second agreement. In it, the husband agreed,

among other things, to make a single lump sum payment to the

wife, and the wife agreed to forego any further support

installments. (5) Id. at 154-55 .

In the years between the parties' first agreement and

their second, however, the husband had remarried. He and his

second wife, through their joint efforts, began to expand the

husband's medical practice. Eventually, the husband's annual

income substantially exceeded the income level that he and his

former wife had enjoyed during their marriage. As a result, over

10 years after the parties had divorced, the husband's former

wife sought a reinstatement and increase in alimony "not actually

based upon any showing of real need on her part, but rather * * *

based upon the proposition that in recent years [the husband] has

enjoyed a substantial increase in his annual income." Id. at

162 . The trial court agreed with wife that husband's increase in

his annual income was a "changed condition[]" justifying a

modification of husband's spousal support obligation. On appeal,

this court rejected that proposition. In doing so, this court

also recognized three important principles governing the

modification of spousal support agreements.

First, as a general matter, this court observed that

agreements regarding spousal support -- agreements made without

fraud or misrepresentation, entered into freely, and approved by

the courts -- should be enforced, absent contravening public

policy concerns. In that regard, this court stated:

"It is axiomatic that public policy requires that

persons of full age and competent understanding shall

have the utmost liberty of contracting, and that their

contracts, when entered into freely and voluntarily,

shall be held sacred and shall be enforced by courts of

justice; and it is only when some other overpowering

rule of public policy intervenes, rendering such

agreement unfair or illegal, that they will not be

enforced."

Id. at 159 . (6)

A second principle that Feves recognized was that the

criteria for modifying support awards are different than those

used to determine them initially. In that regard, this court

acknowledged the validity of the long-standing rule that,

"'[i]n determining the allowances to a divorced [payee

spouse] for [] support and maintenance and for the

care, custody and education of the minor children, it

is proper to take into consideration the social

standing, comforts, and luxuries of life which [the

payee spouse] and [the] children probably would have

enjoyed but for the divorce.'"

Id. at 163 (quoting Strickland v. Strickland , 183 Or 297, 304 ,

192 P2d 986 (1948) (emphasis omitted)). The court, however,

concluded that different considerations controlled the subsequent

modification of those awards:

"In a motion for modification of a decree to

increase or decrease the amount of alimony payments the

financial status of the [payor spouse] is an important

factor to consider in connection with his ability to

pay. But his improved financial status, if any, does

not of itself ordinarily warrant an increase, and the

amount of such increase, if it be determined that an

increase is necessary and proper, is usually governed

by considerations different from those which apply to

an original allowance at time of decree. It is largely

governed by the necessities of the former [payor

spouse] and the ability of the former [payor spouse] to

pay ."

Id. (emphasis added). Therefore, although the parties' pre-dissolution standard of living is relevant to establish an

initial spousal support award, a subsequent upward modification

of that award is based more properly on considerations of the

payee spouse's increased needs and the payor spouse's concomitant

ability to meet them.

Finally, the third principle derived from Feves is

that, when a marriage is dissolved, courts should not interpret

statutory support obligations in a manner that continues the

rights of the parties as if no dissolution judgment had been

granted:

"Divorce terminates the marital status.

Thereafter, the parties bear no relation to each other.

They are as strangers. But for the statute, no

obligation whatever would exist for further support and

maintenance of the former [spouse].

"It is manifest that this statutory obligation for

support and maintenance should not be so interpreted as

to continue the rights of the former [payee spouse]

just as though no divorce had been granted. The

statute does not contemplate a continuing right in [the

payee spouse] to share in future accumulations of

wealth by [the] divorced [payor spouse], to which [the

payee spouse] contributes nothing."

Id. at 164 .

In summary, based on the three principles discussed

above, Feves held that a post-dissolution increase in a payor

spouse's income "does not of itself ordinarily" constitute a

"changed condition" justifying a reconsideration of the payor

spouse's support obligation. Eventually, that "changed

condition" rule evolved to require that a party seeking spousal

support reconsideration prove that a substantial change in

circumstances had taken place since the original dissolution

judgment. See , e.g. , Grove and Grove , 280 Or 341, 354 , 571 P2d

277 (1977) (stating principle).

In 1982, this court acknowledged in McDonnal and

McDonnal , 293 Or 772 , 652 P2d 1247 (1982), that the legislature's

modification statute still did not require a showing of changed

circumstances. (7) That requirement, the McDonnal court noted,

remained a court-created rule:

"This statute, while granting the court the power to

set aside, alter or modify the support provisions of a

decree at any time after dissolution, does not

specifically require a showing of changed

circumstances. It is a rule of case law, not statutory

law, that the party seeking the modification bears the

burden of showing a substantial change in circumstances

since the original decree . Prime v. Prime ,[ 172 Or 34 ,

139 P2d 550 (1943)]; Grove and Grove , [ 280 Or 341 , 571

P2d 477 (1977)]. The rule has become so well

established that this court said almost thirty years

ago that it had 'become hornbook law in this state.'

Feves v. Feves , 198 Or at 159 . The purpose of this

rule has been said to be the avoidance of relitigation

of matters settled by the final decree. H. Clark, Law

of Domestic Relations 456 (1968)."

Id. at 783 (emphasis added).

By 1987, however, the legislature had enacted the

"substantial change in economic circumstances" phrase into ORS

107.135(2) (1987):

"(2) In a proceeding under this section to

reconsider the spousal or child support provisions of

the decree, the following provisions apply:

"(a) A substantial change in economic

circumstances of a party , which may include, but is not

limited to, a substantial change in the cost of

reasonable and necessary expenses to either party, is

sufficient for the court to reconsider its order of

support."

(Emphasis added.) As noted, that phrase –- "[a] substantial

change in economic circumstances of a party" –- continues in the

present version of ORS 107.135(3)(a).

The post-dissolution increase in a payor spouse's

income could be interpreted as a substantial change in economic

circumstance if the text of the statute were our sole

consideration. However, neither of the experienced counsel in

this case has argued at any stage of the proceedings that the

rule enunciated in Feves does not provide context and substantive

meaning for the current statutory phrase. Nor should they have

done so. As part of this court's well-established statutory

construction methodology, this court presumes that the

legislature enacts statutes in light of existing judicial

decisions that have a direct bearing upon those statutes.

See State v. Waterhouse , 209 Or 424, 436 , 307 P2d 327 (1957)

(stating presumption that statute is enacted "in the light of

such existing judicial decisions as have a direct bearing upon

it."); see also Owens v. Maass , 323 Or 430, 438 , 918 P2d 808

(1996) (citing Waterhouse presumption as part of contextual

analysis when this court's earlier decisions have direct bearing

on interpretation of later-enacted or amended statutes).

That is the case here. The Feves rule had been in

existence for over 35 years when the legislature included the

phrase "substantial change in economic circumstances" within the

spousal modification statute. See Willis and Willis , 314 Or 566 ,

569 n 1, 840 P2d 697 (1992) (phrase "substantial change in

economic circumstances" added to modification statute in 1987).

In light of the above-referenced rule of statutory construction,

and in the absence of any argument to the contrary, we are

confident that the legislature intended to include the Feves rule

within the substantive meaning of the statutory phrase,

"substantial change in economic circumstances." Therefore, we

conclude that, under ORS 107.135(3)(a), a post-dissolution

increase in a payor spouse's income "does not of itself

ordinarily" constitute a "substantial change in economic

circumstances" requiring a court to reconsider a previous spousal

support award. (8) We now turn to a consideration of the

rule's application in this case.

As noted, there has been a post-dissolution change in

husband's income as that term commonly is understood. As Feves

makes clear, however, a post-dissolution increase in a payor

spouse's income, unaccompanied by any showing of, for example, a

change in the payee spouse's needs, is ordinarily not a

substantial change in economic circumstances within the

substantive meaning of that statutory phrase. (9) Although

wife argues to the contrary, there is nothing factually in this

case that is sufficient to preclude the application of the

ordinary rule.

It is a reality of married life that a spouse's income

may fluctuate over the course of a lengthy marriage. At the time

that the marriage is being dissolved, the fact that one party's

income has increased or decreased during the marriage and the

context in which that fluctuation occurred, are factors that can

and should be considered by the parties and the court in

determining the financial aspects of the dissolution judgment.

Through a variety of property and income arrangements, the

parties can account for both the past and future earning

potential of either spouse. See Grove , 280 Or at 344 (financial

parts of dissolution judgment are worked out together, and none

can be considered in isolation, e.g. , one spouse may be awarded

specific assets as part of property to provide that spouse with

income).

The spousal support provisions at issue here were the

product of a court-approved stipulated dissolution judgment

voluntarily entered into by the parties. The parties' own

resolution of the spousal support issue is entitled to great

weight. (10) See McDonnal , 293 Or at 779 ("In cases where a

support agreement has been incorporated into the decree in lieu

of an evidentiary hearing and factual determination by the court

the agreement itself is the court's only measure of the equities

between the parties. The parties' own resolution of their

dispute should be accorded great weight."). All that wife has

shown is that, at the time of their marriage dissolution, the

parties concluded, based on the available information, that

husband's current income reflected husband's future earning

potential. That conclusion proved to be wrong. Without more,

however, wife has failed to present a factual predicate

permitting the court to reconsider the parties previously agreed

upon level of spousal support. (11) The trial court's contrary

conclusion and the Court of Appeals' affirmance of that

conclusion were error.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

DURHAM, J., dissenting.

The majority adopts an interpretation of ORS

107.135(3)(a) that contradicts the ordinary meaning of the words

of that statute. The majority claims that a paragraph in this

court's decision over half a century ago in Feves v. Feves , 198

Or 151 , 254 P2d 694 (1953), compels that interpretation of the

statute. However, a careful reading of the paragraph in Feves on

which the majority relies discloses that the majority has misread

Feves and that that case affords no justification for the

contradictory statutory construction that the majority has

adopted. We must construe the text and context of ORS

107.135(3)(a), and apply the familiar meaning of the statute's

words. When we examine the statute in that manner, it is

apparent that the trial court and the Court of Appeals correctly

decided that the evidence adduced here satisfied the statutory

standard for reconsideration of an award of spousal support.

Because the trial court and Court of Appeals correctly decided

this case, the majority's decision to reverse is a legal error.

I respectfully dissent.

The principal issue in this case is whether the

increase in husband's post-dissolution income, as shown in the

record evidence, constitutes a "substantial change in economic

circumstances of a party" under ORS 107.135(3)(a). If the answer

to that question is "yes," then the statute authorized the trial

court to reconsider its order of spousal support. Because the

source of law that controls the answer to that question is a

statute, this court must begin its analysis with the text and

context of the statute and, in doing so, must give words of

common usage "their plan, natural, and ordinary meaning." PGE v.

Bureau of Labor and Industries , 317 Or 606, 611 , 859 P2d 1143

(1993).

ORS 107.135 contains a complete statement of the

legislature's policy regarding the court's authority to

reconsider and modify a judgment of dissolution of marriage,

including an award of spousal support, and the standard that

controls the court's decision to do so. ORS 107.135 provides in

part:

"(1) The court may at any time after a judgment of

annulment or dissolution of marriage or of separation

is granted , upon the motion of either party * * *:

"(a) Set aside, alter or modify any portion of the

judgment that provides * * * for the support of a party

* * *.

"* * * * *

"(3) In a proceeding under this section to

reconsider the spousal or child support provisions of

the judgment, the following provisions apply:

"(a) A substantial change in economic

circumstances of a party , which may include, but is not

limited to, a substantial change in the cost of

reasonable and necessary expenses to either party, is

sufficient for the court to reconsider its order of

support , except that an order of compensatory spousal

support may only be modified upon a showing of an

involuntary, extraordinary and unanticipated change in

circumstances that reduces the earning capacity of the

paying spouse.

"* * * * *

"(4) In considering under this section whether a

change in circumstances exists sufficient for the court

to reconsider spousal or child support provisions of a

judgment, the following provisions apply:

"(a) The court or administrator, as defined in ORS

25.010, shall consider income opportunities and

benefits of the respective parties from all sources ,

including but not limited to:

"(A) The reasonable opportunity of each party, the

obligor and obligee respectively, to acquire future

income and assets."

(Emphasis added.)

In overview, several aspects of the foregoing statutory

scheme are clear. First, subsection (1) grants authority to the

trial court to modify the spousal support provision of an

existing judgment of dissolution of marriage. Second, subsection

(3)(a) establishes the legal standard that controls whether the

court may embark on a reconsideration of its order of support:

"[a] substantial change in economic circumstances of a party

* * *." (12)

Third, the legislature created no special statutory

definition of that standard or any of its terms. The statutory

standard is open-ended in the sense that any substantial change

in the economic circumstances of a party will suffice. However,

the legislature, in subsection (4), did set out a list of factual

matters that the court must consider in determining whether a

change of circumstances is "sufficient for the court to

reconsider spousal or child support provisions of a judgment,"

including the parties' present and future income opportunities.

Fourth, the statute does not require the court, on

reconsideration, to make any particular change in the existing

support award. If a party proves that the economic circumstances

of either party have changed substantially since the court

entered the order of spousal support, then the statute merely

authorizes reconsideration of the order of support. The statute

does not entitle a party to a modification of spousal support

payments. Rather, the court, on reconsideration of its award of

support, must determine whether and to what extent it should

modify the order of support, taking into account all the relevant

circumstances that make any award of support just and equitable,

ORS 107.105(1)(d), including the substantial change of economic

circumstances of a party that has occurred and the fact that the

parties no longer are married. In construing ORS 107.135, we

must continue to bear in mind the distinction, evident from the

statute's text, between the court's authority to reconsider a

support award on a showing of a substantial change in the

economic circumstances of a party and a party's claim of

entitlement on reconsideration to an increased level of support .

Turning to the text of ORS 107.135(3)(a), it is

apparent that the statutory standard for reconsideration, "[a]

substantial change in economic circumstances of a party," does

not incorporate unusual legal jargon. According to one

dictionary, the "economic circumstances of a party" are the

circumstances that pertain to a party's income and expenditures

concerning the management of a household. Webster's Third New

Int'l Dictionary 720 (unabridged ed 1993) (defining "economic" in

part as "of or relating to a household or its management"). The

word "change" refers to "an instance of making or becoming

different in some particular: * * * a divergence from uniformity

or constancy in any quality, quantity, or degree: ALTERATION,

MODIFICATION, VARIATION * * *." Id. at 374. The word

"substantial" means, as pertinent: "IMPORTANT * * * considerable

in amount, value, or worth * * *." Id. at 2280.

The terms that the legislature incorporated into ORS

107.135(3)(a) and (4) reinforce the focus of the statutory

standard on economic matters. Subsection (3)(a) refers to "the

cost of reasonable and necessary expenses to either party * * *."

Subsection (4)(a)(A) refers to the "income opportunities and

benefits of the respective parties from all sources" including

"[t]he reasonable opportunity of each party * * * to acquire

future income and assets."

The statute's text makes it clear that the statutory

standard for reconsideration of a support award authorizes

reconsideration if the evidence demonstrates that an alteration

in a party's reasonable and necessary household expenses or

income has occurred and the alteration is "important" or

"considerable in amount, value or worth." The majority

recognizes that the legislature's standard for reconsideration,

when read in light of the ordinary meaning of its terms, "could"

include a post-dissolution increase in a payor spouse's income,

stating: "The post-dissolution increase in a payor spouse's

income could be interpreted as a substantial change in economic

circumstance if the text of the statute were our sole

consideration." ___ Or at ___ (slip op at 15). The key to the

threshold standard for reconsideration is whether the proven

change in a party's economic circumstance is a substantial one.

So long as the post-dissolution increase in one party's income is

considerable in amount, value, or worth -- and, thus, is a

substantial change in the economic circumstances of that party --

the text of the statutory standard for reconsideration is

satisfied.

The evidence in the record, and especially the parties'

respective incomes, which the court must consider under ORS

107.135(4)(a), satisfies the standard that the statutory text

establishes. According to the evidence, when the parties

dissolved their marriage in 1995, husband earned an annual income

of $150,000. By 1997, husband's income had returned to its pre-1994 level and, from 1997 through 1999, husband's pretax income

averaged $249,000, which is an increase of 66 percent. At the

time of the modification hearing in 2000, husband estimated that

his income for that year would range between $240,000 and

$270,000, which is an increase of between 60 percent and 80

percent. That level of income had permitted husband to resume

the comfortable standard of living that he had enjoyed during the

parties' marriage.

Wife's pre-dissolution annual income, $9,876, had risen

to $51,600 by the time of the hearing on the motion for

modification, but her lifestyle had deteriorated since the

dissolution. Although the trial court found that wife was "not

starving," the court also found that she was living

"substantially below the marital standard of living."

In the context of the parties' respective economic

circumstances, a jump in husband's income of the magnitude shown

here in only two years easily qualifies, in the words of ORS

107.135(3)(a), as a substantial change in husband's economic

circumstances. Thus, I must conclude, on the basis of an

examination of the ordinary meaning of the text of ORS

107.135(3)(a), that the trial court had statutory authority to

reconsider its award of spousal support.

The majority asserts, however, and I agree, that our

construction of the statutory standard for reconsideration also

must take into account any judicial decisions that interpret the

statutory standard. That is so, because, if the legislature

adopted a statutory standard for which this court already had

developed a specific legal meaning or usage, then it is probable

that the legislature intended to incorporate the same meaning or

usage into the statute.

Following that reasoning, the majority spends little

time considering the effect of the statutory text. Instead, the

majority asserts that a paragraph in Feves points in a different

direction from the statutory text. Because a correct

understanding of Feves is essential to permit a fair

consideration of the majority's theory, I discuss Feves in

detail.

In Feves , the parties divorced in 1940. The decree

incorporated an agreement between the parties requiring the

husband to pay alimony to the wife in the sum of $35 per month.

Eight years later, the parties entered into an agreement that

provided in part that the parties had agreed to delete the

alimony provision from the court's decree and that the wife had

agreed to accept a lump-sum payment of $500 in lieu of all

demands against the husband for periodic alimony payments. The

parties filed their agreement in court in 1948 and carried it

out, but did not obtain the court's approval of the agreement at

that time.

In 1951, the wife moved to modify the divorce decree to

increase the monthly alimony payment, among other things. The

husband opposed the motion and asked the court to enforce the

1948 agreement. At the hearing, the evidence demonstrated that

the husband's income had increased significantly since the

divorce. The trial court modified its divorce decree and granted

the wife's request for an increase in alimony. The husband

appealed the modification of the alimony award.

This court began by evaluating the parties' 1940

agreement that called for the commencement of alimony payments.

The court held that, even though that agreement purported to

settle the wife's rights against the husband for alimony, the

right to alimony was based on a statute, not a contractual

obligation. As a result, the original divorce decree for alimony

"was subject to modification upon changed conditions[,]" Feves ,

198 Or at 159 , which was the then-prevailing standard for

modification of a divorce decree. The court held that the 1948

agreement did not bind the parties because the court had not

approved it, and, as a result, " the court had jurisdiction to

entertain plaintiff's motion for a modification of the decree as

to alimony ." Id. at 161 (emphasis added).

On the merits of the motion for modification, the issue

was whether the wife, in the parties' 1948 agreement, had waived

her right to obtain a modification of the alimony award. The

wife acknowledged the 1948 agreement, but argued that the husband

in recent years had enjoyed a substantial increase in his annual

income and that that circumstance alone was "such a change of

conditions as to warrant a modification of the decree for an

increase in the alimony payments." Id. at 162 . The husband

sought enforcement of the 1948 settlement agreement regarding

alimony. The court noted that the husband's income had increased

in the past few years.

The court characterized the wife's argument in the

following terms:

" To support her contention that defendant's

present income is the criterion for determining the

amount of alimony that should be paid , plaintiff

invites our attention to the case of Strickland v.

Strickland , 183 Or 297, 304 , 192 P2d 986 [(1948)]."

Id. (emphasis added). In other words, the court understood the

wife to claim that she was entitled to a greater alimony payment

based solely on whether the husband's income had increased.

After distinguishing Strickland , the court addressed that

argument in the following passage:

"In a motion for modification of a decree to

increase or decrease the amount of alimony payments[,]

the financial status of the former husband is an

important factor to consider in connection with his

ability to pay. But his improved financial status, if

any, does not of itself ordinarily warrant an increase,

and the amount of such increase, if it be determined

that an increase is necessary and proper, is usually

governed by considerations different from those which

apply to an original allowance at time of decree . It

is largely governed by the necessities of the former

wife and the ability of the former husband to pay.

"Divorce terminates the marital status.

Thereafter, the parties bear no relation to each other.

They are as strangers. But for the statute, no

obligation whatever would exist for further support and

maintenance of the former wife.

"It is manifest that this statutory obligation for

support and maintenance should not be so interpreted as

to continue the rights of the former wife just as

though no divorce had been granted. The statute does

not contemplate a continuing right in her to share in

future accumulations of wealth by her divorced husband,

to which she contributes nothing.

"However, under the facts of this case, we are of

the opinion that the agreement between the parties

entered into in July, 1948, insofar as it concerns the

question of alimony, should have been approved by the

trial court in this proceeding and is approved by this

court. It was a fair agreement, is based upon a

valuable consideration, and has been completely

executed."

Id. at 163-64 (emphasis added). Accordingly, the court struck

the modified award of spousal support because the wife, in the

1948 agreement, had settled her claim for any future increase in

spousal support.

The majority attempts to restate what it describes as

the Feves "rule." However, the majority's description of the

court's statements in Feves contains important errors which, in

turn, have skewed the majority's interpretation of ORS

107.135(3)(a). I explain those errors below.

The majority summarizes its reading of Feves in the

following passages:

"In summary, based on the three principles

discussed above, Feves held that a post-dissolution

increase in a payor spouse's income 'does not of itself

ordinarily' constitute a 'changed condition' justifying

a reconsideration of the payor spouse's support

obligation. * * *

"* * * * *

"* * * Therefore, we conclude that, under ORS

107.135(3)(a), a post-dissolution increase in a payor

spouse's income 'does not of itself ordinarily'

constitute a 'substantial change in economic

circumstances' requiring a court to reconsider a

previous spousal support award. We now turn to a

consideration of the rule's application in this case.

"As noted, there has been a post-dissolution

change in husband's income as that term commonly is

understood. As Feves makes clear, however, a post-dissolution increase in a payor spouse's income,

unaccompanied by any showing of, for example, a change

in the payee spouse's needs, is ordinarily not a

substantial change in economic circumstances within the

substantive meaning of that statutory phrase."

___ Or at ___ (slip op at 13, 16-17) (footnotes omitted). (13)

I disagree with the majority's interpretation of Feves

for several reasons. The paragraph in question from Feves does

not mention, let alone define, the phrases "change of

circumstances" or "changed conditions" that reflected the

contemporary standard for reconsideration of a spousal support

award. That is so because the court was not addressing those

legal standards in that paragraph. The court already had

determined, earlier in the opinion, that the decree was "subject

to modification upon changed conditions[]" and that "the court

had jurisdiction to entertain plaintiff's motion for a

modification of the decree as to alimony." Id. at 159, 161 .

Instead, the topic that the court was discussing was

the wife's argument that she had a right to an increased alimony

payment due solely to the fact that her former husband's income

had increased and that the court should determine the amount of

the increased alimony payment simply by measuring the size of the

increase in the husband's income. The court disagreed with the

first of those arguments, stating that the former husband's

"improved financial status, if any, does not of itself ordinarily

warrant an increase * * *." (14) Id. at 163 . In other words,

the wife's bare assertion that the husband's income picture had

improved did not entitle the wife, ipso facto , to a larger

alimony payment.

The court also disagreed with the second of the wife's

arguments about the proper measure for determining the amount of

any increase, stating:

"[T]he amount of such increase, if it be determined

that an increase is necessary and proper, is usually

governed by considerations different from those which

apply to an original allowance at time of decree. It

is largely governed by the necessities of the former

wife and the ability of the former husband to pay."

Id. It is important to note that the factors that the court

mentioned in that passage logically could be relevant to the

court's analysis only after the court already had determined that

"changed conditions" existed, thus justifying reconsideration,

and after the court had determined that an increase in alimony in

some degree was necessary and proper.

I agree that not every post-dissolution increase in one

party's income calls for an increase in spousal support. And,

because the parties no longer are married, the court, after

deciding that an increase is necessary and proper, must apply

different criteria in setting the amount of the increase from

those that determined the amount of the existing spousal support

award. But the majority takes those points out of their proper

context in reading Feves to establish a demanding threshold

standard for the reconsideration process, especially one that

contravenes the plain terms of Oregon's current statute.

To illustrate the last point, the text of ORS

107.135(3)(a) authorizes reconsideration on a showing of a

substantial change in economic circumstances of one party. In

this case, husband experienced a 66 percent increase in income in

just two years after the dissolution and even greater increases

in subsequent years. Even though those increases were

exceptional by almost any definition, the majority holds that the

evidence does not meet the threshold standard in the statute for

reconsideration. Additionally, the statute clearly calls for the

application of the "substantial change" standard to the economic

circumstances of either party. The majority, however, determines

that the evidence did not meet the statutory threshold for

reconsideration because that evidence focused only on husband's

increase in income and did not include a showing of wife's needs.

Those conclusions contradict, rather than support, the

legislative policy on reconsideration that the statute's words

reflect. (15)

The majority explains that the parties agreed to a

level of support at the time of the dissolution and should have

bargained for a different allowance for spousal support if

husband's income potential improved. But, as Feves explained, a

spouse's right to support and the right of either spouse to seek

reconsideration of a support award on changed conditions are

protected by a statute. This court cannot disregard the

legislature's statutory process for reconsideration because the

party seeking reconsideration could have bargained for better

terms regarding support at the time of dissolution.

Even when considered on its own terms, the majority's

proposed statutory interpretation does not withstand analysis.

The majority's premise is that, on these facts, the court-created

"changed conditions" standard, discussed in Feves , allowed

reconsideration only if wife established each of two factual

predicates, that is, husband's ability to pay additional spousal

support and wife's need for additional spousal support. Assuming

arguendo that that premise is correct, the majority fails to

acknowledge that the legislature's later enactment, ORS

107.135(3)(a), authorizes reconsideration if only one former

spouse's economic circumstances have changed substantially. The

majority never returns to the statutory text –- the critical key

to the legislature's intent –- to resolve the conflict between

the "rule" that the majority draws from Feves and the clearly

different rule that the current statute creates. Instead, the

majority concludes that "the legislature intended to include the

Feves rule within the substantive meaning of the statutory

phrase, 'substantial change in economic circumstances.'" ___ Or

at ___ (slip op at 16). That quotation of the statute omits the

critical statutory phrase, "of a party," and the majority ignores

that phrase in its analysis of the statute. Only by disregarding

the significance of that statutory phrase is the majority able to

conclude, in accordance with its reading of Feves , that wife's

evidence was insufficient because, although she proved that

husband experienced a significant post-dissolution increase in

income, she failed to prove her need for additional spousal

support. ___ Or at ___ (slip op at 17). It is clear that the

statute does not demand that sort of proof. The majority's

conclusion demonstrates yet again that this court acts at its

peril when it announces a statute's meaning without first giving

effect to all its words.

For the reasons stated above, I conclude, in accordance

with the decisions of the trial court and Court of Appeals, that

wife's factual showing of a "substantial change in economic

circumstances of a party," ORS 107.135(3)(a), was sufficient to

authorize reconsideration of the spousal support award.

Moreover, on the basis of the facts explained in greater detail

in the decision of the Court of Appeals, I conclude that the

trial court's upward adjustment of the award of support was

correct. In particular, the evidence demonstrates that husband's

increased income resulted from market conditions in his

professional field over which he had no control, not from

additional professional training or extra work on his part. The

parties were married for approximately 24 years. Husband

developed his income-earning capacity during the marriage with

wife's support. (16) Husband experienced a significant drop in

income during only one year of the marriage: the final year. As

a result of the rapid and significant increase in husband's post-dissolution income due solely to market factors in the medical

profession, he again enjoys the high standard of living that he

enjoyed during the marriage; wife's standard of living, by

contrast, is significantly below that which she experienced

during the marriage. Under the facts of this case, the trial

court's upward adjustment in the spousal support award was not

erroneous.

I respectfully dissent.

1. Although not reported in the Court of Appeals' factual

recitation, wife testified at the hearing that she owned and

lived in a home worth $400,000, having an equity of $350,000, had

a retirement account worth about $500,000, and had various

investment accounts worth another $34,000.

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2. Three judges dissented. See Weber and Weber , 184 Or

App 190 , 56 P3d 406 (2002) (Landau, J., joined by Diets, C. J.,

and Edmonds, J., dissenting.)

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3. The dissolution judgment at issue here was entered in

1994, the motion to modify it was submitted in 1999, and a

hearing on that matter was held in 2000. In 2003, provisions

were added to ORS 107.135 -- not relevant to this case -- that

resulted in a renumbering of the subsections within that statute.

Here, neither party has presented an argument based on the text

of any earlier version of ORS 107.135. The relevant subsections

of the statute have remained unchanged save for a shift in

numbering. As a result, we will refer to the 2003 version of the

modification statute throughout this opinion because its relevant

provisions remain applicable in this case.

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4. At the time, OCLA § 9-915 provided, in part:

"At any time after a decree [divorce] is

given, the court or judge thereof, upon the

motion of either party, shall have the power

to set aside, alter or modify so much of the

decree as may provide for the appointment of

trustees for the care and custody of minor

children, or the nurture and/or education

thereof, or the maintenance of either party

to the suit * * *."

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5. The husband also agreed to pay a substantial increase

in monthly child support and to take out an irrevocable life

insurance policy on himself, with the parties' child as

beneficiary.

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6. Thirty years later, in McDonnal and McDonnal , 293 Or

772, 779 , 652 P2d 1247 (1982), this court again cited that

holding, adding:

"Once approved by the court and

incorporated into the decree, agreements

entered into by the parties are to be

enforced as a matter of public policy."

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7. At the time that McDonnal was decided, ORS

107.135(1)(a) (1981) provided:

"The court has the power at any time

after a decree of annulment or dissolution of

marriage or of separation is granted, upon

the motion of either party and after service

of notice on the other party in the manner

provided by law for service of a summons, to:

"(a) Set aside, alter or modify so much

of the decree as may provide for * * * the

support of a party * * *."

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8. We note that the statutory phrase "substantial change

in economic circumstances" also applies to the modification of

child support. However, the criteria for modification of child

support are substantially different from that of spousal support,

because the family relationships are different. The legislature

has enacted other specific statutes with regard to child support

and the modification of child support. See ORS 25.270 to 25.290

(setting special formula for child support, entitling child to

benefit from the income of both parents to the same extent that

child would have benefitted had family unit remained intact; and

authorizing child support modification proceedings on two-year

cycle).

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9. The dissent argues that we have misread Feves and, in

doing so, have created a new and "demanding threshold standard

for the reconsideration process," one that, in the dissent's

view, "contravenes the plain terms of Oregon's current statute."

Weber and Weber , 337 Or ___ , ___, ___ P3d ___ (2004) (slip op at

___) (Durham, J., dissenting). With respect, it is the dissent

that has misread Feves and has failed to appreciate the

importance of the principles established in Feves and now

embodied in ORS 107.135. To a large degree, the utility of Feves

is realized in the fact that it provides a measure of finality

and predictability for spousal support judgments, while

maintaining the flexibility necessary to meet the genuine needs

of former spouses when the circumstances of their post-dissolution lives change significantly -- a crucial point that

seems to have escaped the dissent. In contrast, the dissent's

interpretation of ORS 107.135(3)(a) sacrifices those tenets of

finality and predictability in favor of an open-ended invitation

to re-litigate support judgments any time that market forces

provide an economic windfall to one spouse or the other. That is

not what the legislature intended.

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10. Although neither party refers to the statute, we note

that ORS 107.104(1) provides:

"It is the policy of this state:

"(a) To encourage the settlement of

suits for marital annulment, dissolution or

separation; and

"(b) For courts to enforce the terms of

settlements described in subsection (2) of

this section to the fullest extent possible,

except when to do so would violate the law or

would clearly contravene public policy."

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11. Without regard to the dispute over the legislature's

intent, the dissent fails to address the simple proof problem

that confronts wife in this case. There simply is no evidence in

the record that supports the dissent's conclusion that an "upward

adjustment in the spousal support award is well warranted." The

parties did not litigate the terms of their marriage dissolution;

rather, they created them together, and the court ratified the

resulting agreement. No value ever was established with regard

to wife's contribution to husband's enhanced earning capacity.

In fact, by the terms of that agreement, husband kept his

enhanced earning capacity for himself. There was nothing in that

agreement indicating specifically what he gave to retain that,

its reciprocal value to wife, or whether wife retained future

rights therein. On that limited evidentiary record, there is

simply no basis from which to calculate a modified award of

spousal support that is not arbitrary.

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12. Subsection (3)(a) establishes a more demanding legal

standard for modification of an award of compensatory spousal

support, but this case does not involve that kind of spousal

support award. In that different context, subsection (3)(a)

requires that the change of circumstances that reduces the

earning capacity of the paying spouse be "involuntary,

extraordinary and unanticipated * * *." It is worth noting that

the legislature did not incorporate those criteria into the legal

standard that controls here and chose, instead, to use only the

legal criterion that the change of circumstances be

"substantial." In its analysis of this case, the Court of

Appeals twice commented on the fact that the post-dissolution

change in husband's income resulted from an "unforeseen" change

in the economic environment of the medical profession. Weber and

Weber , 184 Or App 190, 200-01 , 56 P3d 406 (2002). Although that

factual determination certainly is correct, the foregoing

discussion demonstrates that the statutory standard that applies

here does not incorporate a proof requirement that the change of

circumstances be "unanticipated."

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13. I note that the passage in Feves that the majority

attempts to synthesize (emphasized in the preceding quotation) is

obiter dictum . The issue before the court was whether the wife's

1948 agreement was binding on her and, thus, fully settled any

future claim by her to an increase in alimony payments. The

court's holding was that the 1948 agreement was binding on the

wife and precluded any modification. The court's discussion in

the paragraph in question of the factual considerations about the

parties' respective financial conditions that otherwise might

support an increase in alimony had nothing to do with the legal

issue whether the 1948 agreement was binding.

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14. Neither Feves nor the majority opinion provides any

clear explanation of the meaning or effect of the word

"ordinarily" in the quoted passage. The reader cannot determine

from that term how to distinguish an "ordinary" post-dissolution

increase in one spouse's income from an increase in income that

is not "ordinary." That circumstance is likely to lead to

confusion and an unfortunate increase in litigation in the lower

courts, because the majority opinion effectively engrafts the

adverb "ordinarily," with all its inherent ambiguity, onto the

statutory threshold for reconsideration of spousal and child

support awards in ORS 107.135(3)(a).

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15. The majority notes in a footnote that the statutory

standard that determines whether the court may reconsider a

spousal support award applies with equal force to the

reconsideration of an award of child support. Id. ___ Or at ___

n 8 (slip op at 16 n 8). The majority asserts, however, that the

legislature has created other statutes that assist the court in

determining the amount of child support that the parents should

pay, citing ORS 25.270 to 25.290. It is true that those statutes

obligate the state to develop a formula for determining child

support in judicial proceedings, ORS 25.275, and that, in a

judicial proceeding for modification of a child support

obligation under ORS chapter 107, the amount of support that the

child support formula establishes is presumed to be the correct

amount of the obligation, ORS 25.280.

The problem that the majority fails to consider is

that the legal standard in ORS 107.135(3)(a) for reconsideration

of a spousal or child support award applies at the threshold of

the reconsideration process, whereas the child support formula

mentioned above applies during a judicial child support

modification proceeding. In a proceeding seeking reconsideration

of a child support award, the evidence first must establish a

"substantial change in economic circumstances" under ORS

107.135(3)(a) before the court can consider the effect of the

child support formula. As a consequence, the high barrier to

reconsideration that the majority erects in this spousal support

context will apply with equal force to prevent reconsideration of

awards of child support. In those cases, the failure of the

evidence to satisfy the majority's high threshold standard for

reconsideration will obviate the need to resort to child support

formulas to determine a correct amount for child support.

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16. Feves states:

"The statute does not contemplate a continuing right in

[the wife] to share in future accumulations of wealth

by her divorced husband, to which she contributes

nothing ."

Id. at 164 (emphasis added).

The underscored portion of that sentence serves to

distinguish this case from the point that the Feves court sought

to make. Unlike a post-dissolution increase in wealth to which

the former wife truly contributes nothing, such as, for example,

a lottery jackpot, the post-dissolution increase in husband's

wealth here was attributable solely to his earning power in the

medical profession. Wife helped to create and support husband's

earning capacity during the parties' 24-year marriage and,

therefore, contributed significantly to husband's capacity to

increase his income after the dissolution.

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