In re the Marriage of McLennan

LEESON, J. Husband appeals from a dissolution judgment, assigning error to the trial court’s award of indefinite spousal support to wife and to the division of marital property. Wife cross-appeals the spousal support award. On de novo review, ORS 19.125(3), we write only to address the spousal support issues, and modify the spousal support award. We recite the facts as of the time of trial. The parties were married in 1976, have four children and separated after 17 years. Husband is 39 and wife is 38. By agreement, husband has custody of the parties’ two older children, ages 15 and 13, although the older child is not residing with either party. Wife has custody of the two younger children, ages 10 and 8. Husband is employed full time as an instrument technician, earning $13.42 per hour. He also works 12 to 16 hours per week as an electronics instructor at a community college. His gross monthly income is $3,277. Wife is employed 22 hours per week as a bank teller, for which she receives $8 per hour. Her gross monthly income is $823. When the parties were first married, husband had a two-year electronics degree. He worked part time while he acquired a bachelor’s degree. Later, while employed as a high school vocational instructor, he earned a teaching certificate and a master’s degree over the course of four summers. Wife worked full time during the first three years of the marriage, then did not work outside the home for several years. During the last five years of marriage, she worked half time, then three-quarters time, then went back to half time. She has completed less than one year of post-high school education. In its dissolution judgment, the trial court ordered husband to pay spousal support beginning April 10,1995, at the rate of $900 per month for 24 months and $600 per month indefinitely thereafter. It also ordered husband to pay wife child support at the rate of $312 per month for 24 months and $402 per month thereafter, and to pay $150 per month into a bank account to benefit the oldest child so long as that child resides outside husband’s home. The court divided the marital property equally between the parties. [382] Husband assigns error to the award of indefinite spousal support. He does not dispute that wife is entitled to $900 per month “while she pursues further education and/or training for a reasonable period of time,” but argues that it is not just and equitable to continue any spousal support for more than five years, because by then wife should be fully self-supporting. Wife contends that she is entitled to indefinite support, because she “will never have an income comparable to husband’s.” On cross-appeal, she also assigns error to the trial court’s reduction of spousal support from $900 to $600 after only two years. She argues that it will take her seven years or more to complete the equivalent of two to four years of full-time schooling, because she must work part time and care for her children. According to wife, the higher support level is necessary for the entire time that she will be a student. In setting the appropriate amount and duration of spousal support, we attempt to award “such amount of money for such period of time as it may be just and equitable” for the supporting party to pay. ORS 107.105(l)(d). Under that statute, we consider a variety of factors, including the length of the marriage, the ages and health of the parties and their dependants, each party’s earning capacity considering his or her education, skills and work experience and the extent to which that capacity has been enhanced by the efforts of the other or impaired by extended absence from the job market, and the need for education or training to enable a party to become self-supporting. ORS 107.105(l)(d)(A)-(G); Ley and Ley, 133 Or App 138, 141, 890 P2d 440 (1995). The amount of the award should be reasonable and should enable the supported party to enjoy “a standard of living not overly disproportionate to that enjoyed during the marriage to the extent that is practicable.” ORS 107.105(l)(d)(F); Christensen and Christensen, 123 Or App 412, 416, 859 P2d 1192 (1993). The duration should be “on terms that are equitable between the parties,” considering both need and ability to pay, while furthering the goal of “ending the support-dependency relationship within a reasonable time if that can be accomplished without injustice or undue hardship.” Grove and Grove, 280 Or 341, 353, 571 P2d 477, mod 280 Or 769, 572 P2d 1320 (1977); Christensen, 123 Or App at 416. The [383] purpose of the support is not to eliminate disparities in the parties’ incomes or to enable one spouse to look to the other indefinitely for support, if the dependent spouse can become self-supporting at a reasonable level. Ley, 133 Or App at 141; Christensen, 123 Or App at 416. In this case, husband, at the time of trial, worked two jobs and earned $3,277 per month, while wife worked part time and earned $823 per month. Husband’s advantageous economic position results in part from his greater education and experience compared to wife’s role as homemaker during much of their marriage. Wife is clearly entitled to a substantial support award to compensate her for the contribution she made to husband’s earning capacity and the impairment of her own earning capacity because of her absence from the job market. ORS 107.105(l)(d)(F). Nonetheless, the parties agree that during the marriage their standard of living was modest. They ate in restaurants only infrequently and rarely vacationed out-of-state. When they did travel out-of-state, they stayed with relatives. They put most of their limited discretionary income into home improvements, and the home was awarded to wife. Neither party disputes the appropriateness of the amount of the initial award of $900 per month, or that its purpose is to enable wife to pursue suitable career objectives. They disagree about how long support should remain at that level. Wife maintains that she needs two to four years of education. She is not specific about her educational plans, but testified that she is interested in talking to a vocational counselor and taking classes at a community college. She also testified that she sees herself working full time in five years. Husband replies that wife should be fully self-supporting in three to five years and that 24 months of support at the $900 level is all that she requires to get the education she needs. Even accepting that wife will be able to go to school only part time, she has presented no evidence that she would not be able to complete a vocational program in four years. She has already taken some classes and has the benefit of her work experience. We conclude that wife is entitled to spousal support of $900 per month for four years to enable her to attend school part time during that period. [384] We next consider the overall length of time for which wife is entitled to spousal support. We find several factors important. Wife, age 38, is relatively young. She has no health problems and there is no indication that her ability to obtain education and training is impaired in any way. Despite her hiatus from the job market and her part-time employment status at the time of trial, her work experience is not insubstantial. By every indication, she is capable of full-time employment and, with appropriate education, has good prospects for becoming self-supporting at a level that is not overly disproportionate to the modest standard of living she enjoyed during the marriage. Under these circumstances, we believe that indefinite support is not warranted. The dissent, by contrast, would make the spousal support award indefinite. It observes that husband earns $3,000 per month, while wife earns only $800 per month and concludes that the earning capacities of the two are so disparate that wife is entitled to indefinite support. 140 Or App at 384. The dissent overlooks the fact that husband’s gross monthly income reflects earnings from both his full-time and part-time jobs, while wife’s gross monthly income reflects earnings only from her part-time job. Its conclusions about the parties’ relative earning capacities is therefore flawed. On the facts of this case, we conclude that wife is entitled to a graduated decrease in support to facilitate her entry into the job market as a full-time worker after she completes her education. Accordingly, we modify the spousal support award to require that, after the four years of support at $900 per month, wife shall receive as support $700 per month for two years, followed by $500 per month for an additional two years. On appeal and on cross-appeal, remanded with instructions to enter modified judgment awarding wife spousal support of $900 per month for four years, beginning April 10, 1995, then $700 per month for two years, followed by $500 per month for two additional years; otherwise affirmed. No costs to either party.