- Court: Oregon Court of Appeals
- Area(s) of Law: Family Law
- Date Filed: 04-13-2022
- Case #: A169333
- Judge(s)/Court Below: Ortega, P.J. for the court; Shorr, J. & James, J.
- Full Text Opinion
Appellant appealed the trial court’s property division awarding Respondent an equalizing judgment to be taken from her inheritance. This was the second time appellant appealed the trial court’s decision on this matter. In the first appeal, the Court remanded the trial court’s property division because the trial court should have applied the most recent version of ORS 107.105(1)(f) (2012), “which removed separately held property acquired by inheritance from the presumption of equal contribution.” Appellant now assigned error to the trial court’s application of the “just and proper” analysis under Kunze and Kunze, 337 Or 122, 135, 92 P3d 100 (2004). On appeal, Appellant argued that the trial court again failed to use the correct equitable considerations. Respondent argued that Kunze was correctly applied and the trial court’s conclusion fell within the legally permitted scope of outcomes. A trial court’s “just and proper” division of marital property requires consideration of both the statutory factors in ORS 107.105(1)(f) and equitable factors. Kunze, 337 Or at 132. If a marital asset “was acquired free of any contributions from the other spouse… absent other considerations, it is ‘just and proper’ to award that marital asset separately to the party who has overcome the statutory presumption [of equal contribution]” Id. at 135. The Court found the trial court abused its discretion because it did not follow the methodology in Kunze and did not apply ORS 107.105(1)(f)(D). The Court modified the general judgment to remove the equalizing judgment to Respondent; otherwise Affirmed.