Wirth and Wirth , 319 Or. App. 169 ( 2022 )

169
Argued and submitted May 18, 2021, affirmed April 20, 2022
In the Matter of the Marriage of
Cheryl Elaine WIRTH,
Petitioner-Appellant,
and
Carl John WIRTH,
Respondent-Respondent.
Linn County Circuit Court
18DR16064; A172064
509 P3d 685
In this marriage dissolution case, wife appeals a general judgment of dis-
solution, specifically challenging the spousal support award. She contends that
the trial court erred in (1) calculating husband’s income, (2) calculating wife’s
income, (3) denying wife’s request for transitional spousal support, and (4) lim-
iting the spousal support award to 10 years. In support of her first assignment
of error, wife contends that the trial court failed to consider husband’s voluntary
overtime in calculating his income. As to her second and third assignments of
error, wife contends that there was no evidence that she could return to work in
her previous field of employment. She also contends that the trial court erred in
forecasting her salary based on how much she earned during her employment
from 10 years before. Finally, in her fourth assignment, wife contends that there
was no evidence to support the trial court’s finding that husband’s job was phys-
ically demanding and that, therefore, the court abused its discretion in limiting
support to 10 years due to the demanding nature of that work. Held: The Court
of Appeals concluded that the trial court did not err in excluding voluntary over-
time wages from its spousal support calculation given evidence that the avail-
ability of overtime was changing, and that husband would not continue to work
overtime on a regular basis. The Court of Appeals also concluded that the trial
court did not err in calculating wife’s income, which it used in its calculation of
the amount and duration of spousal support. There was evidence that (1) wife
could return to work in her previous field of employment; and that (2) she could
earn at least as much as she had earned in that field 10 years before. Lastly, there
was sufficient evidence to support the trial court’s finding that husband’s job was
physically demanding.
Affirmed.
Michael B. Wynhausen, Judge.
George W. Kelly argued the cause and filed the briefs for
appellant.
Stephanie F. Wilson argued the cause for respondent.
Also on the brief was Feibleman & Case, P.C.
170 Wirth and Wirth
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.*
MOONEY, P. J.
Affirmed.
______________
* Pagán, J., vice DeHoog, J. pro tempore.
Cite as 319 Or App 169 (2022) 171
MOONEY, P. J.
Wife appeals a general judgment of dissolution,
specifically challenging the spousal support award. She
contends that the trial court erred in (1) calculating hus-
band’s income, (2) calculating wife’s income, (3) denying
wife’s request for transitional spousal support, and (4) limit-
ing the spousal support award to ten years. For the reasons
explained below, we reject wife’s arguments, and we affirm.
Wife’s opening brief is divided into four sections,
each addressing an “assignment of error.”1 In the conclud-
ing paragraph of each section, wife “asks that this court
reverse and, on de novo review,” set spousal support, award
transitional support, and so forth according to the con-
tent of each section. She asks that the case be remanded
if we “choose[ ] not to review de novo.” Although wife states
that the standard of review is for legal error, we neverthe-
less understand that she is requesting that we exercise our
discretion under ORS 19.415(3)(b) to review this matter
de novo. Wife does not, however, “concisely state the reasons
why the court should do so,” as required by ORAP 5.40(8)(a).
In fact, she does not state any reasons at all. Because wife
has not provided us with any reason to except this case from
the presumption against the exercise of discretion to review
de novo, ORAP 5.40(8)(c), we decline to do so. We review for
legal error and are, therefore, “bound by the trial court’s
express and implicit factual findings if they are supported
by any evidence in the record.” Colton and Colton, 297 Or
App 532, 534, 443 P3d 1160 (2019). We state the relevant
facts—which are largely undisputed—in accordance with
that standard.
The parties were married for 31 years. In 2018, wife
filed a petition for dissolution. At the time of trial in 2019,
1
Wife’s purported assignments of error challenge various components of the
trial court’s reasoning that led up to its ruling on spousal support. Thus, they are
more properly understood as separate arguments in support of a single assign-
ment of error—that is, four different reasons that the trial court erred in its spou-
sal support award. See, e.g., Marc Nelson Oil Products, Inc. v. Grim Logging Co.,
199 Or App 73, 75 n 1, 110 P3d 120, adh’d to as modified on recons, 200 Or App
239, 115 P3d 935 (2005) (“Assignments of error * * * are to be directed against
rulings by the trial court, not against components of the trial court’s reasoning
or analysis that underlie that ruling.”). That has not impeded our review of the
pertinent ruling in this case.
172 Wirth and Wirth
wife was 50 years old and husband was 52. They have two
adult children.
Wife was employed outside the home during much
of the marriage. She completed a 12-month dental assis-
tant program in 1995 and, after that, worked as a dental
assistant until 2013. Wife injured her back in one or more
motor vehicle accidents and was not again employed until
2015 when she worked part-time as a cashier and then as
a receptionist. She has not worked outside the home since
December of 2015.
In 2018, wife enrolled in cosmetology school. At
the time of trial, she anticipated that she would graduate
in February 2020. Wife testified that, once she graduated,
she would be required to pay off her student loan debt to
be eligible to take the licensing exam. She also estimated
that, once licensed, it would take “a couple months” to find
employment.
Husband works for Georgia Pacific as a material
handler. In the two years before trial, he was filling in as a
finished product handler for another employee who had been
on extended medical leave. As a finished product handler,
husband earned a higher hourly wage than he did as a mate-
rial handler. In each of those positions, husband was required
to work 12-hour shifts, with four hours of each shift counting
as overtime. Georgia Pacific used a partner system where,
when one employee went on vacation, the employee’s part-
ner would cover the vacationing employee’s shifts and receive
overtime. Employees were allowed to forgo those overtime
hours if another employee volunteered to take them.
Husband worked a substantial amount of overtime,
both mandatory and voluntary, in the three years before
trial. He testified that, during that period, many employees
were “willing to give away” their overtime, so he was able
to “swap around [shifts] until I had all I could get.” In those
three years, he worked at least five 12-hour shifts a week.
His annual income in 2018 was $106,046.
At trial, husband presented evidence that his
annual earnings would decrease. Husband’s supervisor,
Hathaway, testified that he anticipated that the person for
Cite as 319 Or App 169 (2022) 173
whom husband had been filling in would soon return to
work because he had been “released to come back to work”
and that, at that point, husband would return to his original
position as a material handler. Hathaway also testified that
the company was hiring new material handlers to “fill[ ] in
the holes,” and that, because those employees would start
with only one week of vacation, husband would have less
opportunities to work voluntary overtime shifts.
Wife sought $2,500 per month in spousal mainte-
nance support for an indefinite period and $1,000 per month
in transitional support for a period of 24 months. Husband
proposed $1,500 per month in maintenance support for a
period of 15 years. He asked the trial court not to award
transitional support at all.
The trial court ultimately awarded wife $2,000 per
month in maintenance support for a period of 10 years and
denied her request for transitional support. In support of its
determination that transitional support was not appropri-
ate, the court made the following findings, as reflected in
the judgment of dissolution:
“13.1 Wife was enrolled in Cosmetology school at the time
of the trial; however, the Court found Wife was able to work
as a dental assistant;
“13.2 Wife has training as a dental assistant;
“13 .3 There was no medical substantiation that Wife was
unable to work as a dental assistant;
“13.4 The Court found that Wife could return to work as a
dental assistant making approximately $35,000 per year.”
The court incorporated those findings regarding wife’s
income and made additional findings in support of its award
of maintenance support:
“The Court found that Wife is capable of earning $35,000
per year for the reasons listed above. Husband is employed
with Georgia Pacific as a forklift operator and earned
$106,046 in 2018 from that employment[.] However, based
on the testimony of Mr. Hathaway and evidence received[,]
the Court found that Husband’s income for determining
174 Wirth and Wirth
spousal support should be based on $85,000 per year for
the following reasons:
“14.5.1 Husband’s income will decrease through no fault
of his own when he returns to be a Material Handler rather
than the Finished Product Handler that he was filling in
for;
“14.5.2 Not all of the overtime is mandatory, and the Court
will not force Husband to work non-obligatory overtime;
“14.5.3 Husband’s company has been in the process of hir-
ing additional employees for over a year causing a decrease
in available overtime;
“14.6 Wife attended schooling to work as a dental assis-
tant during the marriage;
“14.7 The Court found that 10 years of support was an
appropriate duration given the physically demanding
nature of Husband’s work as a forklift driver and his age.”
On appeal, wife first contends that “the [trial] court
erred in its ruling regarding husband’s income” and, as a
result, set her spousal support award “too low.” She argues
that the trial court erred when, in determining the amount
of maintenance spousal support, it calculated husband’s
income without including wages for his voluntary over-
time. Husband responds that the court did not err, because
the evidence established that there were “changes already
occurring” at his workplace that reduced the amount of vol-
untary overtime available to him.
ORS 107.105(1)(d)(C) sets forth a nonexclusive list
of factors that the court is to consider in awarding spou-
sal maintenance support. Earning capacity is among those
listed factors. And as we have said, in “assessing earning
capacity, the court considers a range of considerations other
than actual current income.” Crump and Crump, 138 Or
App 362, 366, 908 P2d 839 (1995). In Sigler and Sigler, 133
Or App 68, 71-72, 889 P2d 1323 (1995), we held that the trial
court erred in excluding regularly earned overtime wages
from husband’s income when calculating spousal support.
We explained that “[o]vertime is appropriately considered”
in calculating support “when it is earned on a regular basis.”
Id. at 71. But Sigler and Crump were both cases that we
Cite as 319 Or App 169 (2022) 175
reviewed de novo. We are not reviewing this case de novo.
Our review is much more limited, deciding only if evidence
in the record supports the trial court’s findings and review-
ing its legal conclusions for errors of law. Hall and Buth-
Hall, 263 Or App 429, 430, 328 P3d 808, rev den, 356 Or 397(2014).
We conclude that the trial court’s finding regarding
husband’s income is supported by evidence in the record. As
noted, husband presented evidence, through his supervisor,
that his income would decrease due to changes at work over
which husband had no control and that would negatively
impact his voluntary overtime hours. The trial court cred-
ited that testimonial evidence and was able to reasonably
infer that husband would be working substantially fewer
voluntary overtime hours. See Hutchinson and Hutchinson,
187 Or App 733, 740-41, 69 P3d 815 (2003) (in determin-
ing an appropriate spousal support award, a trial court may
forecast a party’s future earnings based on facts in existence
at the time of trial). Because there was some evidence that
the availability of overtime was changing and that husband
would not continue to work voluntary overtime on a regular
basis, the trial court did not err in excluding that source of
income from its spousal support calculation.
We next consider wife’s contention that “the [trial]
court erred in its ruling regarding wife’s income.” In support
of that argument, wife argues that the evidence was insuf-
ficient to support the court’s finding that she could work as
a dental assistant again. Wife points to her testimony that
(1) her back problems prevented her from bending over a
dentist’s chair, and (2) no one was willing to hire her in 2013
when she was looking for a dental assistant job because she
had been fired from two such jobs before. Husband responds
that the evidence was sufficient to support the trial court’s
findings.
The trial court’s finding was supported by evidence
in the record. Further, the trial court was not required to
credit wife’s testimony regarding the reasons for why she
was unable to work again as a dental assistant. See Cirina
and Cirina, 271 Or App 161, 166, 350 P3d 504 (2015) (the trial
court was not required to credit the husband’s “self-serving
176 Wirth and Wirth
testimony”). Absent any evidence that the court found reli-
able that wife could not return to work as a dental assis-
tant, including the absence of evidence substantiating any
injuries that might impact her ability to work as a dental
assistant, the trial court permissibly found that wife had
the capacity to do that work. Wife had formal training and
18 years of experience working as a dental assistant, and
she had worked as a dental assistant up until approximately
five years before the time of the trial. Therefore, we cannot
say that there was no evidence to support the trial court’s
findings as to wife’s ability to return to work as a dental
assistant.
We turn to wife’s third argument, in which she
contends that the trial court erred in denying her request
for transitional support. Wife repeats her argument that
there was no evidence to support the trial court’s finding
that she could return to work as a dental assistant. Wife
further argues that there was no evidence to support the
court’s determination that she could earn $35,000 per year
in such a position because the court’s finding was based
on how much she had earned when she worked as a dental
assistant “ten years ago.”
For the reasons explained above, we reject wife’s
argument that there was no evidence that she could return
to work as a dental assistant. We also conclude that there
was evidence to support the trial court’s finding that her
income would be $35,000 per year. Absent any evidence that
salaries in the dental industry, or for dental assistants in
particular, had significantly decreased since wife was last
employed in that field, the trial court could reasonably infer
that wife could earn the same general amount as she had
before. Wife further contends that the court erred by not
explaining its finding that her plan to work as a cosmetolo-
gist was “impractical” or “unreasonable”; however, the court
was not obligated to provide such explanation. We reject
wife’s third assignment of error.
Lastly, we consider wife’s argument concerning the
duration of the maintenance support award. Wife focuses
on the language in the dissolution judgment that states,
“10 years of support was an appropriate duration given the
Cite as 319 Or App 169 (2022) 177
physically demanding nature of Husband’s work as a forklift
driver.” She argues that there was no evidence in the record
to support the trial court’s finding that husband’s work as a
forklift driver was physically demanding. Wife argues that
the court therefore “abused its discretion in basing its deci-
sion on facts not in evidence.” But there was evidence from
which the trial court could find that husband’s job was phys-
ically demanding, and we reject that argument without fur-
ther discussion.
Affirmed.