Citation Numbers： 17 Or. App. 98, 520 P.2d 460, 1974 Ore. App. LEXIS 1036
Judges： Foley, Schwab, Thornton
Filed Date： 4/1/1974
Status： Precedential
Modified Date： 11/13/2024
The husband appeals from the financial provisions of a decree of dissolution of marriage granted to the wife, contending that the trial judge erred in dividing the assets to the parties.
The parties were married for some 28 years. Two children were born to the marriage. In addition the husband adopted the wife’s son by her prior marriage. All children are now grown and capable of supporting themselves, although at the time of trial some were living temporarily in the family home with the wife.
The evidence established that shortly after the husband returned from military service in 1945 he entered into a partnership with his older brother to operate a small restaurant on East Broadway in Portland. The older brother was the bankroller and silent partner. The personal relationship between the brothers was close. Their financial dealings with each other involving the restaurant were quite complicated. The Avife apparently did not know very much about these dealings. The husband acted as business manager of the restaurant. He worked hard and the business prospered. Additions to the premises were constructed on two occasions. The Avife also took an active role in the business principally as bookkeeper and occasionally as manager during the husband’s temporary absences, and was paid a small salary.
The Avife is now 51 years of age and the husband is 53.
(1) The family residence, subject to its mortgage indebtedness. The evidence was that the home had an assessed value of $34,490 and an estimated market value as high as $40,000; that the mortgage balance was $18,000, leaving the net value at approximately $22,000.
(2) The household furniture and fixtures, worth approximately $5,000.
(3) An undivided one-half interest as tenant in common in a lot worth $15,000, which is used as a part of the restaurant.
(4) Lump sum judgment for $16,250, which the court said represented 50 per cent of the husband’s 25 per cent interest in the restaurant.
(5) Attorney fees in the amount of $2,200 plus out-nf-pocket costs.
In addition the trial judge awarded the wife alimony of $400 a month for three years.
On appeal the husband stresses these points: that the trial judge awarded the wife far in excess of one-half of the assets including the lump sum judgment plus attorney fees; that the restaurant has now started losing money; and that the husband’s assets and earnings are so meager that he cannot pay the obligations imposed by the decree. Further the husband avers that the trial judge erred in placing credence in the testimony of the wife’s value witnesses as to the worth of the restaurant, as opposed to the testimony of the husband’s value witnesses.
According to our calculations the court in effect
To the wife:
Family home (Net value based on assessed valuation of $34,490) $16,490
Furniture and furnishings 5,000
y2 interest in Lot 2 7,500
y2 husband’s share of business 16,250
$45,240
To the husband:
y2 interest in Lot 2 $ 7,500
y2 interest in Lot 4 6,250
y2 husband’s share of business 16,250
Life insurance 7,000
Hunting gear and personal items 725
$37,725
The court awarded the wife alimony of $400 a month for a period of three years.
The preponderance of the evidence supports the trial judge’s conclusion that the restaurant was worth $130,000 rather than the $30,000 value claimed by the husband, and that the husband’s 25 per cent share was worth $32,500 rather than $7,500. Likewise, we do not accept the husband’s claims as to the meagerness of his income and that this heretofore prosperous restaurant business has since this suit was filed become a failing operation. It was conceded that the gross receipts of the restaurant during the period May 1967 to December 1972 were shown to be as follows:
“Accounting Period Gross Receipts
“May, 1967-April, 1968 $216,772.00
May, 1968-April, 1969 216,585.00
May, 1969-April, 1970 226,338.00
May, 1970-April, 1971 241,421.00
*102 May 1,1971-December 31,1971 (8 mos.) 175,696.00
January, 1972-December, 1972 239,343.00”
The affidavit of the husband offered in evidence showed the following personal income:
“Tear Income
“1968 $3,712.00
1969 7,727.17
1970 4,400.00
1971 9,460.00”
Although the husband testified that he had no other source of income during the above period, there was documentary evidence offered showing that substantially larger amounts than the above had been deposited into the joint household bank account during the same period,
“Tear Amount Deposited
“1968 $ 9,387.14
1969 10,774.16
1970 12,454.74
1971 12,950.72”
Further, there was evidence offered which showed that in addition to the $6,000 per year regularly paid to his brother for his share of the business, within one period of six months he had paid his brother a total of $8,871.53, during another two-months’ period he paid his brother a total of $11,072.87, and again during another four-months’ period he paid him $9,000.
Having reviewed the entire record we conclude that (a) the contributions of both parties to the aceu
Affirmed.
The wife’s salary was $5,200 yearly during this period. The husband claimed that this was deposited in the joint account. The wife disputed this, claiming that she cashed most of her pay checks and used the cash to pay household and personal expenses.