First National Bank of Fairbanks v. Enzler

RABINOWITZ, Chief Justice

(dissenting)-

I would grant the petition for rehearing. In my view, petitioner is correct in its assertions that our published opinion invalidated the twin rationales upon which the superior court based its conclusion that Warren Enzler did not act with the intent to defraud at the time he made the questioned conveyances to his wife. For I interpret that portion of the superior" court’s decision which reads “. . . and to prevent the husband from dissipating the assets rather than as a sham” as merely evidencing another facet of the reason for forbearing, by Mrs. Enzler, from going forward with divorce proceedings against Warren Enzler.

As was pointed out in our published opinion in this case, many circumstantial facts may be combined to prove that Warren Enzler intended to defraud.¹ Since the superior court based its determination of an absence of an intent to defraud on the grounds that no debt was owing by En-zler at the time and that the conveyances were supported by sufficient consideration, I cannot conclude that, as a matter of law, the trial court would nevertheless have reached the conclusion that an intent to defraud was lacking solely on the basis that the transfers were made to prevent dissipation of the marital assets by Warren En-zler. Therefore, I believe a remand to the superior court for determination of the fraud issue in light of our previously published opinion is the appropriate course of action to take in this appeal.

1 . In support of this general proposition, we cited Evans v. Trade, 193 Or. 648, 240 P.2d 940 (1952).