Staveland and Fisher ( 2019 )

49
Argued and submitted September 17; decision of Court of Appeals affirmed on
other grounds, general judgment of circuit court reversed and remanded for
recalculation of the division of property, supplemental judgment vacated and
remanded December 27, 2019
In the Matter of the Domestic Partnership of
Kirsten Kari STAVELAND,
Respondent on Review,
and
Michael Jon FISHER,
Petitioner on Review.
(CC 16DR00887) (CA A163944) (SC S066424)
455 P3d 510
In this action for dissolution of a nonmarital domestic partnership, the par-
ties dispute whether Staveland was entitled to 50 percent of the appreciated
value of the house that the parties resided in together during their partnership.
The trial court awarded Staveland 50 percent of the appreciated value of the
house, and the Court of Appeals affirmed on that issue. Held: (1) A trial court’s
determination of nonmarital property depends on the court’s determination of
the express or implicit intent of the parties; (2) appellate courts should review the
trial court’s determination of such intent as a question of fact.
The decision of the Court of Appeals is affirmed on other grounds. The gen-
eral judgment of the circuit court is reversed and remanded for recalculation of
the division of property; the supplemental judgment is vacated and remanded.
On review from the Court of Appeals.*
George W. Kelly, Eugene, argued the cause and filed the
brief for petitioner on review.
Robert T. Scherzer, Portland, argued the cause and filed
the brief for respondent on review.
Before Walters, Chief Justice, and Balmer, Nakamoto,
Flynn, Duncan, and Nelson, Justices, and Landau, Senior
Justice pro tempore.**
LANDAU, S. J.
The decision of the Court of Appeals is affirmed on other
grounds. The general judgment of the circuit court is reversed
and remanded for recalculation of the division of property;
the supplemental judgment is vacated and remanded.
______________
** On appeal from Multnomah County Circuit Court, Susan M. Svetkey,
Judge. 295 Or App 201, 433 P3d 749 (2018).
** Garrett, J., did not participate in the consideration or decision of this case.
50 Staveland and Fisher
LANDAU, S. J.
This case involves the dissolution of a domestic
partnership. More specifically, it involves how to distribute
the appreciation in the value of a home in which the parties
to a domestic partnership lived during their time together.
The trial court found that the parties intended to live as a
married couple and share in the appreciation of the home.
The Court of Appeals concluded that the trial court did not
abuse its discretion in coming to that conclusion. Staveland
and Fisher, 295 Or App 210, 433 P3d 749 (2018). On review,
the parties dispute whether the Court of Appeals applied
the correct standard of review and whether that court cor-
rectly concluded that the parties should share in the appre-
ciation in the home. We conclude that the Court of Appeals
applied an incorrect standard of review, but that it ulti-
mately reached the correct decision. We therefore affirm the
decision of the Court of Appeals.
The following facts do not appear to be in dispute.
Staveland and Fisher met in April 2011. In June of that
year, Fisher purchased a house located on Dickinson Street,
which the parties refer to as the “Dickinson house.” He pur-
chased the house for $467,500. Staveland did not contribute
to the purchase, and Fisher held title to the house in his
name only.
Several weeks later, the parties moved into the
Dickinson house. They discussed sharing expenses. Fisher
agreed to pay the mortgage, property taxes, and homeowners’
insurance, while Staveland agreed to pay for “everything
else,” including electric, gas, and water expenses, as well
as food. The parties also worked to improve the Dickinson
house, including painting rooms, tiling and carpeting floors,
and removing a wall between rooms. Both parties performed
labor. Staveland, for example, painted walls and tiled floors.
She also made most of the decisions regarding the selection
of furniture, color schemes, and the arrangement of art. But
Fisher paid for all of the materials.
The parties otherwise kept their financial affairs
separate. Fisher, for instance, owned a number of investment
accounts when they moved in together. Staveland owned
a home on Ainsworth Street—known as the “Ainsworth
Cite as 366 Or 49 (2019) 51
house”—which she had purchased some five years earlier.
While she lived with Fisher, she rented out the Ainsworth
house and was solely responsible for the mortgage, taxes,
insurance, and collection of rent. She likewise was responsi-
ble for the upkeep of that property, although, on a few occa-
sions, Fisher helped with some minor repairs.
An exception was a joint Vanguard investment
account. Even then, though, the parties carefully tracked
their respective contributions to that account.
In December 2011, Fisher proposed that the cou-
ple get married. Staveland hesitated, because of what she
understood from a tax advisor would be negative financial
consequences of a marriage. Instead, the parties decided
to hold a ceremony that resembled a wedding but did not
involve getting legally married. They bought rings. They
sent invitations to friends and family for a ceremony that
would occur at the Dickinson house, which they referred
to as “our house.” They exchanged vows before an officiant.
They hired a professional photographer and a band. And,
after the ceremony, they told at least some of their friends
and acquaintances that they were married.
In March 2014, the parties had a son. Staveland
assumed most of the childcare duties. She also paid for
direct childcare expenses, such as clothes, diapers, food,
and medical care. Fisher sometimes provided childcare and
occasionally contributed to childcare expenses, writing a
check to Staveland.
In the fall of 2015, the parties began to discuss
separating. Fisher said that, if Staveland was not going to
be his partner anymore, she should start paying him rent.
Instead, she and their son moved out of the Dickinson house
in December 2015.
Staveland then initiated this action for dissolution
of a nonmarital domestic partnership.1 Among other things,
1
Although the action in this case is for dissolution of a nonmarital domes-
tic partnership, it is not an action for dissolution of a registered domestic part-
nership under the Oregon Family Fairness Act, ORS 106.300 to 106.340. Under
that law, parties may register a “Declaration of Domestic Partnership” with the
county clerk, ORS 106.320. Parties who have registered are entitled to the same
rights and privileges as married persons—including the applicability of statutes
52 Staveland and Fisher
she asserted an interest in one half of the appreciation in
value of the Dickinson house during the period that the par-
ties lived together.
At the beginning of trial, the parties advised the
court that they had entered into a stipulation as to the distri-
bution of their assets. Counsel for Staveland explained that,
“with the exception of appreciation in the home that the par-
ties lived in for four-and-a-half years [(the Dickinson home)],
* * * each party will receive free and clear of the other party,
indemnif[ied] * * * from any liabilities thereon, all property
that’s presently in their own names respectively.” Counsel
for Fisher agreed. The trial court then questioned both par-
ties to confirm that they agreed with that stipulation.
The remaining issues for trial were child custody
and parenting time, distribution of a few items of personal
property, and the distribution of the appreciation in the
value of the Dickinson home.
On the latter issue, Staveland offered the testimony
of an appraiser who testified that the Dickinson house was
worth $635,000 as of October 19, 2016, which was near the
date of trial. The appraiser also testified that the house had
appreciated 10.3 percent in the preceding year and that,
when Staveland had moved out some ten months earlier,
the house might have been worth between $584,000 and
$585,000.
The trial court awarded custody of the parties’ son
to Staveland and provided parenting time for Fisher. It also
distributed the few items of personal property that the par-
ties had disputed. As to the Dickinson house, the trial court
began by noting that the relevant legal analysis was set out
in Beal v. Beal, 282 Or 115, 577 P2d 507 (1978), in which
this court had explained that the controlling issue in a non-
marital dissolution of partnership case is the intent of the
parties. The trial court said:
“And frankly, your intent [was] to be married. Your intent
was to have a family and live together for the rest of your
lives. You were very much in love and you wanted to get
pertaining to dissolution of marriage. ORS 106.340 (explaining applicability of
laws relating to marriage to registered domestic partnerships).
Cite as 366 Or 49 (2019) 53
married and * * * I know that you got advice from a tax per-
son that it would cost you some money if you got married,
and I’m not gonna go behind your decision.
“But it was clearly both of your decisions that because
of the tax consequences that you understood would occur
if you married, and you both decided that what you would
do is get married but for the paperwork, but for the license
and registering the marriage.
“You, frankly, held yourselves out as husband and wife.
You bought rings. You exchanged vows. You * * * told people
at work and probably people who are parents of—friends or
playmates of [your son’s] that you were married, and the
only people you * * * told the truth to were your very closest
family and friends.
“And so there isn’t any question in my mind that your
intention was to live as a married couple, to raise the child
as a married couple in spite of the fact that you were not
legally married. * * *
“[T]here is no question [that Fisher] chose the house, you
paid * * * the down payment, you paid the mortgage, the
deed’s in your name. And there also isn’t any question that
as you[2] were testifying the first day * * * you referred to
it as: We moved into our house; we fixed up our house; we
painted our house; we had our wedding ceremony—or our
non-wedding ceremony—at our house. You invited people to
come to our house.
“* * * * *
“And there isn’t any question that you fixed it up
together, that you each contributed to fixing up that home.
And I’m sure that [Fisher] paid a great deal more in terms
of financial contribution. I’m sure that [Staveland] and
other members of her family contributed significant phys-
ical labor and decision making about decor and colors and
all of those things.
“You’ve lived in that house, it’s your family home, and
you both cared for it and fixed it up and treated it as your
family home. So * * * she is entitled to one-half of the
increase in the value of the home.
2
It appears from context that the trial court here was referring to Fisher,
but it is not entirely clear.
54 Staveland and Fisher
“But the only truly solid number that I have for cur-
rent value is the [$635,000] number. [The appraiser], in
response to a question was, well, how did you come up with
the 10.3 percent over the years, over the more than 1 per-
cent a month, and he did the math, came up with another
number.
“And then you went on to testify that that’s not really
a valid way to appraise a house and come up with a value.
There has to be an appraisal done at the * * * point in time
where you’re asking for what that value is.”
The court then entered a judgment awarding Staveland
50 percent of the appreciated value of the Dickinson house,
calculated by subtracting the appraised value at the time
of trial ($635,000) from the value at the time they moved
in together ($467,500), or $167,500. The trial court also
awarded Staveland $20,000 in attorney fees and costs, and
entered a supplemental judgment for that amount.
Fisher appealed, advancing three assignments of
error. First, he argued that an equal sharing of the appre-
ciation in value of the Dickinson house was not equitable
under the circumstances. Second, he argued that, even if an
equal share was equitable, the trial court erred in using the
value of the house at the time of trial, rather than the value
of the house ten months earlier, when Staveland had moved
out. Third, he argued that the trial court erred in awarding
attorney fees without an adequate explanation.
As to the first assignment of error, the Court of
Appeals began by explaining the applicable standard of
review in the following terms:
“Because a trial court’s exercise of its equitable powers
in this context is analogous to its exercise of discretion
in marital dissolution cases, we conclude that we should
apply the same standard of review: abuse of discretion.
Cf. Kunze and Kunze, 337 Or 122, 135-36, 92 P3d 100 (2004)
(court’s final inquiry in marriage dissolution as to the ‘just
and proper’ division of property ‘concerns the equity of the
property division in view of all the circumstances of the
parties’ and is ‘a matter of discretion’).”
Staveland, 295 Or App at 218. The court then concluded that,
in awarding Staveland half of the appreciation in the value
Cite as 366 Or 49 (2019) 55
of the Dickinson house, the trial court had acted within the
range of permissible discretion. Id. at 221.
Concerning the second assignment of error, the
Court of Appeals concluded that the trial court had erred
in calculating the appreciation based on the value of the
Dickinson house at the time of trial, as opposed to the time
when Staveland had moved out. Id. The court accordingly
remanded for a recalculation of the value of the house. Id. at
221-22.
And concerning the third assignment of error, the
Court of Appeals concluded that the trial court had indeed
failed to provide an adequate explanation for its award of
attorney fees to Staveland. Id. at 222. It vacated the supple-
mental judgment and remanded for further proceedings on
the issue of attorney fees. Id. at 222-23.
Fisher then sought review in this court. In his peti-
tion, he identified two issues for this court to resolve: first,
whether the Court of Appeals applied the correct standard
of review when it determined that the trial court did not
abuse its discretion in awarding Staveland half the appreci-
ation in value of the Dickinson house; and second, whether,
under the circumstances of this case, the trial court erred
as a matter of law in making that award. Neither party has
taken issue with the Court of Appeals’ decision as to the
other issues that it decided—that is, the need to recalculate
on remand the value of the Dickinson house and to explain
the award of attorney fees—and we therefore do not address
those issues.
We begin with the issue of the proper standard of
review. Fisher argues that we must review the trial court’s
decision as a matter of law. He reasons that the rights and
obligations of the parties in a nonmarital dissolution case
stem from their explicit or implicit agreement, and that the
terms of the parties’ agreement are a matter of law. It fol-
lows, he argues, that appellate review of the circuit court
decision is reviewed for legal error, and the standard of
review used in marital dissolution—usually, review for an
abuse of discretion—is inapplicable. Staveland, meanwhile,
argues that the Court of Appeals was correct in concluding
56 Staveland and Fisher
that the trial court’s decision must be upheld unless it rep-
resents an abuse of discretion.
As we have noted, in describing the appropriate
standard of review, the Court of Appeals drew an analogy
from dissolution of marriage cases. Citing this court’s deci-
sion in Kunze, the Court of Appeals concluded that the
proper standard of review is abuse of discretion. Staveland,
295 Or App at 218 (citing Kunze, 337 Or at 135-36). For the
reasons that follow, we conclude that the Court of Appeals
erred, both in its reading of Kunze and in its reliance on
Kunze for the standard of review in this case.
Kunze was a dissolution of marriage case, in which
the principal issue was the division of property. 337 Or at
124. The property included a fairly complicated collection of
assets, some of which the parties had acquired separately,
and some of which had been commingled. In sorting through
those assets, this court noted that ORS 107.105(1)(f) directs
the courts to divide property in a manner that is “just and
proper in all the circumstances.” Id. at 133. The court fur-
ther noted that, “[t]o achieve that directive, the statute
empowers the court to distribute any real or personal prop-
erty that either or both of the parties hold at the time of
dissolution, including property that the parties had brought
into the marriage.” Id. That property within the court’s dis-
positional authority, the court explained, is known as “mar-
ital property.” Id.The court then explained that, although ORS 107.105
(1)(f) authorizes courts to equitably dispose of all mari-
tal property, a subset of that marital property—property
acquired during the marriage, known as “marital assets”—
is subject to an evidentiary presumption that the parties
contributed equally to its acquisition. Id. Because of the dis-
tinction between marital property and marital assets, and
because of the evidentiary presumption that applies only
to the latter class of property, the court said that property
division analysis in marital dissolution cases must follow a
particular sequence. Id. at 133-34.
First, if a party establishes that the property at
issue was acquired during the marriage—that is, that it is
Cite as 366 Or 49 (2019) 57
a marital asset—then there is a presumption that both par-
ties contributed equally to its acquisition. Id. at 134. If the
parties contributed equally to the acquisition of the mari-
tal asset, then that ordinarily means that the parties will
divide it equally. Id.
Second, if either of the parties seeks to rebut that
presumption with evidence that the other spouse did not
contribute equally to the acquisition of the marital asset,
then the court must determine, by a preponderance of the
evidence, whether the presumption has been rebutted. Id. at
134-35. The rebuttal of the presumption then may justify
a division of the marital assets on a less than equal basis.
Id. at 135.
Third, after an initial division of marital assets
based on the presumption of equal contribution or its rebut-
tal, the court must engage in a final determination of a just
and proper division of all marital property, including any
property brought into the marriage that is not subject to
the presumption of equal contribution. That final deter-
mination, this court explained, “is a matter of discretion.
This court will not disturb that discretionary determina-
tion unless it concludes that the trial court misapplied” the
statute. Id. at 136.
The upshot of all that is that it is not quite correct to
say that a trial court’s division of marital property is simply
reviewed for abuse of discretion. The trial court’s division of
property may consist of legal, factual, and equitable deter-
minations, and each of those determinations will trigger a
different standard of review.
In cases in which the evidentiary presumption of
equal contribution is challenged, the court first must deter-
mine whether the party challenging the presumption has
rebutted it by a preponderance of the evidence. Id. at 134-35.
That determination entails findings of fact, not discretion.
The standard of review that applies to that determination
is one that applies to trial court factual determinations
generally.
Once the factual issues have been determined, the
court then may exercise its discretion in determining a “just
58 Staveland and Fisher
and proper” distribution of the parties’ marital property.
Id. at 136.
With that background, we turn to the standards
that apply in nonmarital dissolution cases. The leading
case on that is this court’s decision in Beal. In that case,
Raymond and Barbara Beal lived together but were not mar-
ried. Beal, 282 Or at 117. They jointly purchased a house on
contract and lived there together for about two years. When
the domestic partnership ended, the parties disputed who
was entitled to the house. Id. The trial court granted each
party an undivided one-half interest in the property, and
Raymond appealed. Id.
This court initially noted that, at the time—some
four decades ago—nonmarital dissolution cases were still
unusual and the law that applied was unsettled. Id. at 120.
The court observed that other courts around the country
and commentators had by then suggested several different
doctrinal approaches to nonmarital dissolution cases. One,
the court said, was to treat living together in a close family
relationship, but without marriage, as creating an implied
partnership agreement. Id. Another was to draw an analogy
to resulting trusts or constructive trusts. Id. Still another
was to apply the rules of cotenancy. Id. at 121. Yet another
was to adopt a theory of domestic partnership based solely
on principles of equity. Id. at 120. Finally, the court cited a
law review article in which the author suggested that “the
intent of the parties ought to be the guideline for the court
in such cases, to the extent that such intent is discernible; to
the extent it is not, courts should do equity.” Id. (citing Carol
S. Bruch, Property Rights of De Facto Spouses Including
Thoughts on the Value of Homemakers’ Services, 10 Family L Q
101, 125 (1976)).
In the end, this court adopted the view that the
controlling determination is the intent of the parties:
“[W]e hold that courts, when dealing with the property dis-
putes of [a couple] who have been living together in a non-
marital domestic relationship, should distribute the property
based upon the express or implied intent of those parties.”
Id. at 123. The court elaborated that the parties’ intentions
may not have been expressed in a written agreement. In
Cite as 366 Or 49 (2019) 59
such cases, courts must simply determine their implicit
intent from the surrounding circumstances:
“We believe a division of property accumulated during a
period of cohabitation must be begun by inquiring into the
intent of the parties, and if an intent can be found, it should
control that property distribution. While this is obviously
true when the parties have executed a written agreement,
it is just as true if there is no written agreement. The dif-
ference is often only the sophistication of the parties. Thus,
absent an express agreement, courts should closely exam-
ine the facts in evidence to determine what the parties
implicitly agreed upon.”
Id. at 122.
The court turned its attention to the facts of that
case and determined that the evidentiary record supported
the trial court’s determination that the parties intended
that the property be divided equally. Id. at 122-23. Beal,
then, stands for the proposition that, in nonmarital dissolu-
tion cases, the controlling question is what the parties either
expressly or implicitly intended.
As a rule, if the parties’ intentions have been
expressed unambiguously in an agreement, then the terms
of that agreement are interpreted as a matter of law. See
ACN Opportunity, LLC v. Employment Dept., 362 Or 824,
839, 418 P3d 719 (2018) (“If the disputed contract provision
is unambiguous, then the court construes the words of a
contract as a matter of law.” (Internal quotation omitted.)).
Otherwise, the determination of the parties’ intent is a
question of fact.
On point in that regard is this court’s opinion in
McDonnal and McDonnal, 293 Or 772, 652 P2d 1247 (1982).
In that case, a dissolution judgment awarded the wife tem-
porary spousal support, but it also incorporated the terms
of an oral settlement agreement that authorized the trial
court to revisit spousal support in three years. Id. at 774-75.
There was no mention of a substantial change of circum-
stances as a predicate to the trial court’s review of spou-
sal support. Id. at 776. Three years after the dissolution,
the wife initiated a modification proceeding, asking for
additional spousal support based on changes in her health.
60 Staveland and Fisher
Id. at 775. The trial court granted that request. Id. at 776.
The court regarded the oral settlement agreement unen-
forceable, but it nevertheless ordered indefinite support
based on a substantial change in circumstances. Id. The
husband appealed, arguing that there had been no change
of circumstances, given that the wife’s medical condition
was known at the time of the dissolution. The wife dis-
agreed and argued in the alternative that, under the terms
of the marital settlement agreement, proof of a substantial
change of circumstances was not required. The Court of
Appeals reversed, concluding that there had been no change
of circumstances. McDonnal and McDonnal, 54 Or App 296,
634 P2d 1357 (1981). The Court of Appeals further con-
cluded that the settlement agreement was not enforceable.
Id. at 301.
This court reversed, concluding that the Court of
Appeals had erred in determining that the oral settlement
agreement that had been incorporated into the dissolution
judgment was not enforceable. McDonnal, 293 Or at 786.
The proper remedy, the court explained was to remand for a
determination of the intent of the parties with respect to the
oral settlement agreement:
“In the trial court wife proceeded on the basis of two
claims: One, that the court could extend spousal support
without a showing of changed circumstances because of the
provisions of the decree, and two, that there had, in fact,
been a change of circumstances. The court thought it was
precluded from considering the first claim and decided the
case on the basis of changed circumstances. Because the
trial court has not had an opportunity to address the first
claim this case is remanded for that purpose. The inquiry
on remand is whether the oral property settlement included
the provision for post-decree review by the court. * * * The
only way the question can be resolved is by a determination
of the intent of the parties. The proper interpretation is an
issue of fact requiring the submission of evidence extrinsic
to the agreement bearing on the intent of the parties.”
Id. (emphasis added).
To recap, then: Under Kunze, a trial court’s division
of marital property may ultimately involve an exercise of
discretion, but that exercise of discretion often will be based
Cite as 366 Or 49 (2019) 61
on certain predicate evidentiary findings. 337 Or at 135-36.
Such predicate evidentiary findings will be reviewed as
issues of fact. Beal takes a different approach for nonmarital
dissolution cases. It instructs that a trial court’s division of
property will depend on its determination of the express or
implicit intent of the parties. Unless the parties have unam-
biguously expressed that intent in the terms of an agree-
ment, the determination of their intent is a question of fact.
Beal, 282 Or at 121-22. And a trial court’s determination of
such intent will be reviewed on appeal as a question of fact.
With that in mind, we turn to Fisher’s contention
that the trial court erred in finding that the parties intended
to live as a married couple and share in the appreciation of
the Dickinson house upon their separation. He argues that
the court’s finding cannot be sustained in light of evidence
that Fisher’s was the only name on the title to the house; the
parties kept separate financial accounts; and Fisher made
all the payments for the mortgage, taxes, and home insur-
ance. In addition, Fisher argues that it is inequitable that
Staveland should be awarded half the appreciation in the
Dickinson house when she was awarded all the appreciation
in the Ainsworth house. We are not persuaded.
To begin with, given our standard of review of the
trial court’s findings, the fact that Fisher can identify some
evidence—even a lot of evidence—that would support alter-
native findings is beside the point. Under ORS 19.415(1),
appellate courts review a trial court’s factual findings “as
provided in section 3, Article VII (Amended) of the Oregon
Constitution.” That constitutional provision, in turn, requires
a party challenging a finding of fact to establish that there
is “no evidence” to support it. See State v. Brown, 306 Or 599,
604, 761 P2d 1300 (1988) (“Article VII (Amended), section 3,
of the Oregon Constitution decrees that a fact decided by a
jury may not be reexamined unless the reviewing court can
affirmatively say that there is no evidence to support the
jury’s decision.”). The only question, then, is whether there is
some evidence in the record to support the trial court’s find-
ing. As the Court of Appeals correctly concluded, there is.
There is ample evidence that the parties held them-
selves out as husband and wife, and that their intention—but
62 Staveland and Fisher
for the specter of adverse tax consequences—was to live
as husband and wife. That permits an inference that they
intended to be treated as husband and wife at the end of
their relationship, and to share equally in the property
acquired during that relationship. See Holloway v. Holloway,
63 Or App 343, 347, 663 P2d 798, rev den, 295 Or 617 (1983)
(that the parties held themselves out as husband and wife
supported the inference that they intended to share prop-
erty). Moreover, although they maintained mostly separate
financial accounts, there is evidence that they treated the
Dickinson house as a common asset. They described it to
others as “our house,” they both provided substantial labor
and upkeep, and they both shared the expenses of living
together in the Dickinson house—with Fisher paying for
the mortgage, property taxes, and insurance, and Staveland
paying for all utilities, household expenses, and childcare
expenses. In short, we cannot say that the record contains
no evidence to support the trial court’s finding.
Concerning the asserted inequity of the trial court’s
decision in light of the award of the Ainsworth house to
Staveland, Fisher’s argument likewise fails. Strictly speak-
ing, Beal holds that the division of property in nonmari-
tal dissolution cases turns on the intent of the parties, not
equity. The only mention of equity in Beal is in reference to
two law review articles that the court cited. One suggested
that dissolution of domestic partnerships should be pred-
icated on principles of equity alone, a suggestion that the
court rejected. Beal, 282 Or at 122. The other was an article
in which the author proposed that dissolution of nonmari-
tal domestic partnerships should be based on the intent of
the parties, and, if such intent cannot be determined, courts
should “do equity.” Id. at 120. The court endorsed at least
part of that proposal—the part having to do with the intent
of the parties. It could be argued that the court implicitly
endorsed the balance of the proposal, as well. But, at best,
the court implicitly endorsed the idea that equity comes into
play if the parties’ intent cannot be determined. In this case,
the court could and did determine the intent of the parties.
It could also be argued that, Beal aside, this court
should recognize that equity always is a consideration in prop-
erty division cases, whether or not they involve marriages.
Cite as 366 Or 49 (2019) 63
But that contention has not been briefed or argued by either
party in this case. We leave for another day the extent to
which considerations of equity factor into the analysis that
Beal requires.
Aside from that, Fisher expressly stipulated that,
with the sole exception of the appreciation in the value of
the Dickinson house, the parties would each keep the assets
that they held in their own names. Thus, Fisher kept the
Dickinson house and his investment accounts, and Staveland
kept the Ainsworth house and her investment accounts,
and the only issue before the court was whether to award
Staveland some portion of the appreciation in the Dickinson
house. Fisher’s argument on appeal is difficult to square
with that stipulation at trial. And, if we should take into
account the Ainsworth house that belonged to Staveland, it
is not clear why we should not also take into account Fisher’s
retention of substantial property held in his name and, if we
did take into account Fisher’s other property, why the trial
court’s decision was erroneous.
The decision of the Court of Appeals is affirmed on
other grounds. The general judgment of the circuit court
is reversed and remanded for recalculation of the division
of property; the supplemental judgment is vacated and
remanded.