In re the Marriage of Medlyn

WOLLHEIM, J. The parties’ 26-year marriage was dissolved in 1993. In doing so, they entered into a stipulated agreement that required husband to pay spousal support for eight years. In 2001, wife moved to modify husband’s support obligation due to a substantial and unanticipated change in circumstances. The trial court granted wife’s motion. Husband appeals and, on de novo review, ORS 19.415(3) (2001),1 we affirm. At the time of the dissolution in 1993, wife suffered from a back injury that she had sustained in a 1978 automobile accident. During the dissolution proceeding, she requested temporary spousal support. Wife was not working at the time and had no other source of income. She argued that her potential income was limited because of her back injury. Additionally, wife argued that she could not work while husband argued that wife could work. The parties entered into a stipulated spousal support settlement. That settlement was incorporated into the dissolution judgment and required husband to pay spousal support to wife for eight years, beginning at the rate of $800 per month and decreasing every two years. The dissolution judgment provided that husband was to make his final payment in April 2001. After the 1993 dissolution, husband became unemployed and, because of that change in circumstances, sought modification of the judgment to reduce his spousal support obligation. Husband’s support payments were lowered, but the eight-year duration of the payments was unaffected.2 Sometime between 1997 and 2000, wife suffered spinal fractures. In 2000, wife’s doctors determined that she should not work and the Social Security Administration (SSA) determined that she was totally disabled. In 2001, wife moved for modification of the dissolution judgment to provide for permanent spousal support at the rate of $1,300 per — 92 — month. In support of that motion, wife stated that, since the modification of husband’s support obligation in 1994, “there have been substantial changes in my financial circumstances and abilities.” Specifically, wife stated: “At the time the original decree was entered and at the time of the modification of the decree, I had degenerative back problems but was not restricted from employment. In both March and September of2000,1 had two episodes where my back broke because of activity.” Wife further stated that, because of those incidents in 2000, she was “unable to work or seek employment due to the degenerative nature of my back disease and injury.” Finally, wife stated that SSA determined that she is totally disabled, that she began receiving Supplemental Security Income (SSI), and that her doctors recommended that she not work. Husband opposed the motion.3 The trial court concluded that there had been a substantial and unanticipated change in circumstances. Specifically, the trial court found that, although wife “was aware that she had back problems at the time of the dissolution in 1993, she was not aware of the compression fractures or that she would be totally disabled.” The trial court modified the spousal support award to $800 a month. On appeal, husband challenges the conclusion that wife has experienced a substantial change of circumstances. ORS 107.1354 controls whether a modification of spousal support is proper. ORS 107.135 provides, in part: “(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 — 93 — expenses to either party, is sufficient for the court to reconsider its order of support [.]” The parties do not discuss the statute. They do, however, dispute whether wife’s change in circumstances is both substantial and unanticipated. The arguments that the parties make, though not directly citing the statute, work within the framework of ORS 107.135 and relate to this court’s construction of that statute. Although the term “unanticipated” does not apply to this case through operation of the statute, for many years Oregon case law has required a substantial and unanticipated change in circumstances before a court can modify an award of spousal support. Thomas and Thomas, 160 Or App 365, 371, 981 P2d 382 (1999); Johnson v. McKenzie, 100 Or App 640, 643, 787 P2d 1306 (1990) (“A party moving for modification of spousal support must show, not only a substantial change of circumstances, but also that the change was not contemplated at the time of the judgment of dissolution.”). Under that standard, wife is entitled to modification of the support award. The trial court found that wife’s change in circumstances was substantial. The trial court’s letter opinion states, in part: “The Court’s been referred to Fellows [and]Fellows, 124 Or App 476, [8]62 P2d 1325 [(1993)], which deals with circumstances similar to this case. The Court finds that although [wife] was aware that she had back problems at the time of the dissolution in 1993, she was not aware of the compression fractures or that she would be totally disabled. It is obvious that she does not have the ability to earn income and that she’s currently living at a level far below that when the parties were still married. This constitutes as a substantial change of circumstances.” (Emphasis added.) Wife testified that she was not totally disabled at the time of dissolution in 1993, but that she is now totally disabled and that her physician and the SSA concurred with that assessment. Wife’s testimony regarding her outlook at the time of the dissolution was as follows: — 94 — “[COUNSEL]: In 1993, did you have an expectation that you could work? “[WIFE]: In my heart of hearts, yes. “[COUNSEL]: Did you anticipate then that this back problem would result in you not being able to get employment? “[WIFE]: No. I knew it would be limited employment due to it, but I didn’t think that I would wind up being totally disabled, no.” The trial court impliedly found wife’s testimony credible. Tomos and Tomos, 165 Or App 82, 87, 995 P2d 576 (2000). Wife’s statement that she hoped to be able to work and the declarations of her doctors and the SSA, when combined with other evidence in the record, support wife’s position that she has experienced an unanticipated change in circumstances.5 In 2000, wife had two different compression fractures of the spine. Three MRIs showed that she has severe degenerative disc disease and herniated discs at T8 and LI. Additionally, the difference between “little or no income” and “no income” is a substantial one. When one compares the evidence in the record regarding the circumstances at the time of the dissolution and the evidence regarding wife’s current physical condition, it is apparent that wife’s physical condition has unexpectedly deteriorated, resulting in a substantial and unanticipated change in circumstances. Even if the parties were aware of one spouse’s health problems at the time of the first modification, an unanticipated deterioration of that spouse’s physical condition can — 95 — constitute an unanticipated change in circumstances. Fellows, 124 Or App at 478; see also Tomos, 165 Or App at 88-89 (although the wife was partially disabled before the original support award, she also suffered from illnesses arising after the dissolution, which, although not fully disabling, constituted a substantial change in circumstances). In this case, wife’s description of her physical condition at the time of dissolution differs significantly from that of her current physical condition. At the time of dissolution, wife stated that she was “disabled.” At the time of dissolution, wife said that, due to her disability, her potential income was “minimal” and her employment options were “[v]ery, very, very limited.” Furthermore, wife’s condition did not prevent her from selling used furniture on consignment after the dissolution or taking care of the parties’ cattle. However, wife is no longer working and her testimony is that she is now “unable to work” and “unable to earn any form of income.” Though wife was not working at the time of dissolution, there is a material difference between being able to work and becoming unable to work. Again, this case is similar to Fellows. At the time of dissolution in Fellows, the “wife acknowledged that she had osteoporosis and that she did not know how much longer she could work. After the dissolution * * * [t]he osteoporosis spread * * *. Her expenditures for prescription medication have increased * * *. Nothing in the record suggests that her condition will improve. Wife’s ability to continue working is in doubt.” 124 Or App at 478. This case is similar because, here, wife acknowledged at the time of dissolution that she was disabled and that her ability to work was minimal. Wife earned some income after the dissolution. Since the time of trial, however, wife’s illness has worsened and she is now no longer able to work. Nothing in the record suggests that wife will improve. In Fellows, we ultimately held that, even if one spouse is ill at the time of dissolution, if that illness unanticipatedly becomes more severe and nothing in the record suggests that the spouse will improve, modification of spousal support is warranted. — 96 — The dissent argues that Fellows is inapposite because that case dealt with a modification of the duration of support and whether the evidence in Fellows satisfied the “substantial and unanticipated” standard was not at issue because “[t]he wife appealed, arguing that the support should be permanent; the husband did not cross-appeal.” 192 Or App at 100 n 2 (Linder, J., dissenting). The dissent is correct that the specific issue in Fellows was whether the court should modify the duration of the support award. However, this court reviews spousal support awards de novo and, before a court will modify a support award in either duration or amount, the court must satisfy itself that the party requesting modification has met the threshold determination of a substantial and unanticipated change of circumstances. Thus, the determination in Fellows that the wife’s change in circumstances warranted a modification of the duration necessarily included a determination that the wife’s change in circumstances was substantial and unanticipated. Wife has suffered a substantial change in economic circumstances. At the time of dissolution she was able to work, if only in a very limited way. At the time she requested modification, wife was totally disabled and unable to work at all. That change in circumstances was unanticipated. Although she had suffered a back injury at the time of dissolution, she did not anticipate suffering further injuries. Affirmed. Footnotes [1] ORS 19.415(3) was amended in 2003. The amendments apply only to judgments entered on or after the effective date of the 2003 act. Or Laws 2003, ch 576, § 90a. Thus, the 2001 statute applies. [2] At the time of the 1994 modification, although husband’s circumstances had changed, wife’s had not. We therefore measure the change in wife’s circumstances from the point of the 1993 dissolution. [3] By the time wife filed her motion for modification, husband’s income exceeded his income at the time of the 1993 dissolution and the 1994 modification. [4] Although the current version of ORS 107.135 applies to this case, the 1999 amendments to ORS 107.105, introducing the term “unanticipated” and providing for three different types of spousal support, do not apply. Or Laws 1999, ch 587, § 3. [5] After the dissolution, wife attempted to supplement her income by purchasing used furniture and selling it on consignment at a friend’s antique store. That effort produced very minimal income. Additionally, at the time of dissolution, the parties had about 15 to 20 head of registered Angus brood cows. Wife explained that she did all the feeding and watering of the cows and the pulling of their calves. She also hauled hay, loaded it and grain into a pickup, and unloaded it to feed the cattle. In 1993, she was able to do everything associated with caring for the cattle. Although, as the dissent points out, wife stated that she would be able to care for the cattle at the present time, it would be with different consequences. Wife stated that she would be able to take care of cattle with disability to herself. Thus, wife is no longer able to care for cattle to the same extent that she was at the time of dissolution. She no longer has the same physical ability, as shown by her doctor stating that she should not work.