Matter of Marriage of Yantis ( 1981 )

THORNTON, J.,

dissenting.

My reading of this record leads me to the conclusion that the allowance of $200 a month permanent spousal support to this 42 year old woman is improper for two reasons. First, it is excessive considering husband’s wage level and limited assets, and wife’s capability of earning more than she is presently.¹ Secondly, it represents a shift of position by this court, if not a clear departure from the rules announced in Kitson and Kitson 17 Or App 648, 523 P2d 575 (1974), and expanded upon in Grove v. Grove, 280 Or 341, 571 P2d 477, modified 280 Or 769, 572 P2d 1320 (1977).

In Kitson this court said in part:

"If the wife is employable at an income not overly disproportionate from the standard of living she enjoyed during marriage, it should be for a limited period of, for example, one to three years. In such a situation, it is not the policy of the law to give the wife an annuity for life or, stated differently, a perpetual lien against her husband’s future income.”

In Grove the foregoing language from Kitson was quoted with approval. In addition, the Grove court said:

"It is proper and desirable, however, where the circumstances permit, to tailor the financial provisions of a dissolution decree in a way which provides the wife an opportunity to increase her earning capacity and thus eliminate the need for permanent support or to reduce the amount required.”

I conclude this is what should be done in this case. I conclude that spousal support of $200 per month for five years is appropriate. I perceive no reason under the circumstances for providing wife permanent spousal support. Kitson and Kitson, supra. It appears to me, that, despite her health problems, wife’s age and level of education should permit her to expand her earning capacity through further education or training. Keeping spousal support at a constant level and terminating it after five years encourages her to seek that training without overtaxing husband’s limited capacity to pay. I submit that it would not be equitable, in the words of Kitson, to provide wife with an annuity of $200 a month for life in this case.

1 There is presently $7,400 in the husband’s pension fund, which is fully vested, but from which husband will receive no benefits until he retires. There was no evidence of the present value of this asset. It appears that wife as a school district employe is also a contributing member of the Public Employes Retirement System. There was no evidence presented as to the value of wife’s pension account.