In the Matter of the Marriage of Cynthia R. SKINNER

Wife appeals a general judgment of dissolution,

raising two assignments of error. In her first assignment

of error, wife argues that the trial court erred in its award

of spousal maintenance support; wife raises two arguments

concerning the amount and timing of the award. In

her second assignment of error, wife argues that the trial

court erred in setting child support based upon her imputed

income. Husband cross-appeals, raising two assignments

of error.1 We write only to address wife’s contentions on

appeal, and reject without discussion husband’s assignments

of error on cross-appeal. For the reasons that follow,

we reverse and remand the awards of spousal maintenance

support and child support, and otherwise affirm on appeal

and cross-appeal.

On appeal, wife does not seek de novo review and

this is not an exceptional case warranting such review. ORS

19.415(3)(b); ORAP 5.40(8)(c). “Accordingly, we are bound

by the trial court’s express and implicit factual findings if

they are supported by any evidence in the record.” Andersen

and Andersen, 258 Or App 568, 570, 310 P3d 1171 (2013)

(internal quotation marks omitted). We recite the facts consistently

with that standard of review.

The parties were married for over 20 years. At the

time of dissolution, the parties’ only child was 19 years old

and was living with husband and attending community

college.

Husband has a high school education and had

taken some classes at a community college. At the time of

trial, husband worked for DNV/KEMA; husband estimated

that his base salary was approximately $70,400 per year,

averaging a gross monthly income of $6,200. In addition to

husband’s base salary, he enjoys a benefits package of an

additional $24,000; husband’s entire “salary package” is

approximately $94,400.

1 On cross-appeal, in his first assignment of error, husband argues that the

trial court erred in awarding wife indefinite spousal maintenance support. In

his second assignment of error, husband argues that the trial court improperly

calculated the distribution of the parties’ assets by miscalculating the amount of

husband’s withdrawal from his retirement account.

Cite as 285 Or App 788 (2017) 791

Wife has a high school education and was employed

during most of the marriage at various retail stores. Wife’s

most recent long-term employment was as a manager for

Save-A-Lot; in that position, wife earned approximately

$49,000 per year, working seven days per week for about

75-85 hours per week. Additionally, that position required

wife to commute from the family home in Albany to the

store’s location in Springfield, which added an additional

two hours to her workday.

Husband and wife agreed that wife should find a job

that would allow wife to work fewer hours. Wife was unable

to find work at a comparable income because her experience

made her too qualified for sales or retail work and her education

was inadequate for management positions that might

have approached her income at Save-A-Lot. As a result, in

order to qualify for management positions and earn a higher

salary, wife decided to return to school. The parties disputed

whether they had agreed that wife would pursue higher education;

nonetheless, the trial court found that husband was

aware of—and at least tacitly agreed to—wife returning to

school.

At the time of the dissolution trial in April 2014, wife

was unemployed and was a full-time student at community

college, with an ultimate goal of obtaining a master’s degree

in either counseling or social work. Wife expected that she

would graduate with her bachelor’s degree after the winter

term of 2017 and with her master’s degree after the winter

term of 2018. Wife requested that the trial court award her

$750 per month in transitional spousal support for a period

of five years and $750 per month in spousal maintenance

support for an indefinite period of time. The trial court ultimately

awarded wife $750 per month in transitional spousal

support for five years, and $500 per month in spousal maintenance

support to commence five years after dissolution,

and to run for an indefinite period of time.2 The trial court

ordered husband to pay $603 per month in child support,

2 We note that wife does not challenge the trial court’s award of transitional

support. A trial court may award transitional support “as needed for a party to

attain education and training necessary to allow the party to prepare for reentry

into the job market or for advancement therein.” ORS 107.105(1)(d)(A).

792 Skinner and Skinner

and the court ordered wife to pay $451 per month in child

support.

On appeal, in her first assignment of error, wife

contends that the trial court erred in its award of spousal

maintenance support. First, wife argues that the trial

court’s award of $500 per month in spousal “maintenance

support is too low and falls outside of a just and equitable

choice of legally correct alternatives.” Second, wife argues

that the award of spousal maintenance support should have

commenced upon entry of the judgment of dissolution and

the court erred by commencing that support five years after

dissolution. In other words, as we understand wife’s argument,

the trial court erred in failing to award spousal maintenance

support for the first five years following dissolution.

In response, husband argues that the trial court awarded

wife “a reasonable and legally proper amount of spousal support,”

and that “it is less important to determine whether

the two types of spousal support should run simultaneously,

and more important to review whether the total award of

support is appropriate for each time period.”

“We review the trial court’s ultimate determination

about a just and equitable amount of support for abuse of

discretion. We will uphold a support award if, given the

findings of the trial court that are supported by the record,

the court’s determination that an award of support is just

and equitable represents a choice among legally correct

alternatives.”

Andersen, 258 Or App at 570 (internal quotation marks and

citations omitted).

A trial court, in its judgment of dissolution, may

order “[s]pousal maintenance as a contribution by one spouse

to the support of the other for either a specified or an indefinite

period.” ORS 107.105(1)(d)(C). Spousal maintenance

support “allows one financially able spouse to contribute to

the support of the other, depending on the financial needs

and resources of each party.” Abrams and Abrams, 243 Or

App 203, 207, 259 P3d 92, rev den, 350 Or 716 (2011). In longterm

marriages, “the primary goal of spousal support is to

provide a standard of living to both spouses that is roughly

comparable to the one enjoyed during the marriage[.]” Id.

Cite as 285 Or App 788 (2017) 793

“In determining the proper amount and duration of an

award of spousal maintenance support, the factors to be

considered by the court include the duration of the marriage;

the age of the parties; the physical, mental, and emotional

health of the parties; the standard of living established

during the marriage; the parties’ relative income

and earning capacity; a party’s training, employment skills,

and work experience; the financial needs and resources of

each party; the tax consequences to each party; a party’s

custodial and child support responsibilities; and any other

factors that the court deems just and equitable.”

Mitchell and Mitchell, 271 Or App 800, 811, 353 P3d 28

(2015) (citing ORS 107.105(1)(d)(C)(i) - (xi)).

In a letter opinion to the parties, the court stated

that the case presented “a somewhat unique factual situation

where Wife, with at least the tacit support of Husband,

leaves a job that has her overworked, to be retrained and

then cannot obtain the same paying job because of too much

experience for a clerk, while too little educat[ion] for a management

position.” In the trial court’s findings regarding the

parties’ financial needs and resources, the court stated:

“Wife currently lives with her parents and plans to move

to an apartment within a short period of time. This move,

reasonable at her age and stage of life, will increase her

financial needs. Her resources, assuming that she remains

in school, will not be increased to cover the additional costs.

Her anticipated expenses are expected to total $2,100 per

month in fixed costs, with consumer financial obligations of

an additional $450 per month and child support. Her educational

costs and child support * * * break out to an additional

monthly cost of $1,282 per month.

“There is no reason to find that Husband’s financial

needs or resources will change post marriage. * * * Husband

stands to have approximately $1,500 left at the end of the

month [after expenses], not considering the total ‘salary

package’ that he enjoys from his employer.”

As to the parties’ relative income and earning capacity, the

court found that, although husband was at the top of his

earning capacity,

“Wife is currently well below her earning capacity. Still,

when Wife has obtained her degree(s), her earning capacity

794 Skinner and Skinner

is 60% of Husband’s earning capacity, without considering

the benefit package that Husband enjoys or any potential

benefit that Wife may have when she is fully educated.

Based upon the evidence, there is no reason to not conclude

that this relative income disparity should not continue into

the future.”

As to factors the trial court deemed “just and equitable,” the

court stated:

“During the marriage, Wife worked 75-80 hours per

week in her latest, and most lucrative employment. She

earned a salary of $49,000 per year with, literally, no

family life outside of her employment. Certainly, Husband

worked a full time job as well, but there is nothing in the

record suggesting that Husband made the type of sacrifice

that Wife made for both parties to provide for the family. At

her separation from Save-A-Lot, Wife’s income was approximately

68% of Husband’s income.

“* * * Wife has shown true investment in her education

to the point at which it appears that her experience at work

verses education levels would not make similar salary

expectations probable. The evidence is that in her chosen

field of pursuing a Master’s Degree, she can expect a salary

of $40,000 per year [and that] is a reasonable expectation.

She shouldn’t be penalized for forgoing a job requiring 80

hours a week for a profession that she has chosen in this

case. Still, assuming a salary of $40,000, she can expect a

salary that is approximately 60% of that which Husband

looks to enjoy.”

In determining spousal support, the court stated that it

“has taken into consideration Wife’s anticipated income

after graduation.” The court then awarded wife spousal

maintenance support in the amount of $500 per month for

an indefinite period, “to commence after the termination of

the transitional support,” which was set to terminate five

years following entry of the general judgment of dissolution.

In other words, the trial court did not award spousal maintenance

support for the first five years, but awarded $500

in monthly spousal maintenance support to commence five

years after dissolution.

We agree with wife that the trial court misapplied

the factors specified in ORS 107.105(1)(d)(C). Contrary to

Cite as 285 Or App 788 (2017) 795

the trial court’s express and implied findings that at the

time of dissolution wife was a full-time student with little to

no financial resources, and that it would take at least four

years for wife to obtain her master’s degree and earn a reasonable

income, the trial court did not award wife spousal

maintenance support for the first five years following dissolution.

As noted, the primary purpose of an award of spousal

maintenance support is to provide a standard of living to

both spouses that is roughly comparable to the one that each

party enjoyed during the marriage. Here, the trial court’s

denial of a spousal maintenance award for the first five years

following dissolution results in wife’s standard of living not

being roughly comparable to the standard of living that

each party enjoyed during the marriage. Indeed, the court

found that during the time that wife would be obtaining her

degrees, her only financial resources would consist of $750

in transitional support and her student loans. Nevertheless,

contrary to that finding, the court did not award any spousal

maintenance support for that critical period during which

wife was in school. See Snyder and Snyder, 102 Or App 41,

44-45, 792 P2d 478 (1990) (“[I]n marriages of long duration,

where the parties have disparate earning capacities, permanent

spousal support is necessary to avoid an overly disproportionate

impact on the disadvantaged spouse.”).

Similarly, in awarding spousal maintenance support,

the trial court appears to have incorrectly imputed

wife’s estimated future salary—a salary that she expects to

make after obtaining her master’s degree—in calculating

the amount of the spousal maintenance support award. As

noted, in “determining what is just and proper,” the trial

court stated that it had “taken into consideration Wife’s

anticipated income after graduation.” In so doing, the trial

court did not base its award on wife’s circumstances existing

at the time of dissolution. See Cullen and Cullen, 223

Or App 183, 190, 194 P3d 866 (2008) (“A spousal support

order should be based on circumstances existing at the

time of dissolution[.]”); McLauchlan and McLauchlan, 227

Or App 476, 491, 206 P3d 662, rev den, 346 Or 363 (2009)

(“[A]lthough a spousal support order must take into account

the lifestyle enjoyed by the parties during the marriage,

it is also based on circumstances existing at the time of

796 Skinner and Skinner

dissolution.”). Moreover, even when considering wife’s future

estimated salary, the trial court found that wife’s earning

capacity would be 60 percent of husband’s earning capacity,

without taking into account husband’s additional benefit

package, noted above. Despite the disparity in the parties’

incomes and earning capacities, the trial court concluded

that a monthly spousal maintenance award of $500 was just

and equitable.

For all of the reasons set forth above, we conclude

that the trial court misapplied the factors specified in ORS

107.105(1)(d)(C). As a result, the spousal maintenance support

award does not represent a choice among legally correct

alternatives. Accordingly, we reverse and remand the trial

court’s spousal maintenance support award.

In her second assignment of error, wife contends

that the trial court erred in calculating child support based

on wife’s imputed income of $40,000 per year. Wife argues

that the court improperly used her future potential income

to set child support, rather than using minimum wage.

In response, husband argues that the trial court properly

imputed her income because “wife was unemployed but had

the skills and ability to be employed at the time of trial.”

We review whether the trial court correctly calculated

the parties’ incomes under the child support guidelines

for legal error. Morgan and Morgan, 269 Or App 156,

167, 344 P3d 81, rev den, 357 Or 595 (2015).

For purposes of calculating child support, a parent’s

income can include the parent’s actual income and potential

income. OAR 137-050-0715(1). “ ‘Actual income’ means

a parent’s gross earnings and income from any source[.]”

OAR 137-050-0715(2). On the other hand, potential income

“means the parent’s ability to earn based on relevant work

history, including hours typically worked by or available to

the parent, occupational qualifications, education, physical

and mental health, employment potential in light of prevailing

job opportunities and earning levels in the community,

and any other relevant factors.” OAR 137-050-0715(3).

If a parent’s actual income is less than the parent’s potential

income, the court may impute potential income to the

Cite as 285 Or App 788 (2017) 797

parent. OAR 137-050-0715(6). “Thus, a parent’s income

under OAR 137-050-0715 must be based on the income that

the parent is receiving or could be receiving.” Adams and

Adams, 274 Or App 423, 427, 360 P3d 742 (2015). However,

a finding that a potential income exceeds his or her actual

income must be supported by “nonspeculative” evidence

“and relate to * * * present earning capacity.” Andersen, 258

Or App at 585-86; Leif and Leif, 246 Or App 511, 519, 266

P3d 165 (2011) (“When determining a parent’s gross income

for child support purposes, a trial court must inquire into

the parent’s present income.”).

Here, the trial court incorrectly imputed income to

wife in setting wife’s child support obligation. In its letter

opinion, the trial court stated:

“Wife’s only current income is [transitional] spousal support

[$750] and student loans.

“* * * * *

“* * * The potential income for Wife in this case, and the

actual salary level that she expects [to receive after graduating

with her master’s degree], is $40,000, or $3,333 per

month.”

As a result, the trial court erred in determining wife’s child

support amount because, when calculating wife’s income,

the court did not find that, at the time of dissolution, wife

had the present ability to earn $3,333 per month. The trial

court’s conclusion that wife’s potential income for child

support purposes was $40,000 was contrary to the court’s

factual findings that wife was a full-time student who was

unable to find work “primarily because her experience made

her too qualified for sales/retail work and her education

was inadequate for management positions,” and whose only

financial resources were $750 per month in transitional

spousal support and student loans. By using wife’s speculative

future income—an income that wife estimated she

could make after obtaining her master’s degree—that did

not relate to wife’s present earning capacity at the time of

dissolution, the trial court erred in setting wife’s child support

obligation. See Bouris and Bouris, 276 Or App 637, 639,

369 P3d 1186 (2016) (“In light of wife’s full-time status as a

798 Skinner and Skinner

student, we conclude that the court’s imputation of full-time

income is not supported by the evidence in the record.”).

On appeal, awards of spousal maintenance support

and child support reversed and remanded; otherwise

affirmed.

Affirmed on cross-appeal.