In re the Marriage of Hanson

BUTTLER, J.,

dissenting.

I dissent because I think this case is a classic one for the award of spousal support — the dissolution of an 18-year marriage where the husband’s income has been approximately two-thirds of the income on which the parties lived during marriage. As we said in Kitson and Kitson, 17 Or App 648, 655, 523 P2d 575, rev den (1974):

«* * * rphg most significant factor usually is whether the wife is employable at an income not overly disproportionate from the standard of living she enjoyed during the marriage. * * * If the wife is employable at an income not overly disproportionate from the standard of living she *832enjoyed during marriage, then, generally speaking, if support is appropriate it should be for a limited period of, for example, one to three years. In such a situation, it is not the policy of the law to give the wife an annuity for life or, stated differently, a perpetual lien against her former husband’s future income. Conversely, if the wife is not employable or only employable at a low income compared to her standard of living during marriage then, generally speaking, permanent support is appropriate.”

The trial court denied wife spousal support, because it concluded that wife has a profession, is employed and has a gross income of approximately $18,342. Wife points out, however, that husband’s gross income is approximately $34,500 per year and that she helped support the family during the time husband was working for his Master’s and Ph. D. degrees, permitting him to obtain the level of employment he now enjoys. It is apparent that wife’s income is disproportionately low compared to husband’s income and that wife is entitled to some spousal support on a permanent basis. Husband’s earning capacity, at least at the present time, is substantially greater than that of wife, and wife helped husband attain his greater earning capacity. The amount which husband should be required to pay is more problematical. Husband is obligated to pay $6,000 per year in child support, which he will not be able to deduct for tax purposes, but which will reduce his income to approximately $28,500 per year and increase wife’s income to approximately $24,500 per year, $6,000 of which will not be taxable to her. However, wife’s income must support three people. Husband is 44 and wife is 40; both are in good health, are employed and have vested retirement programs. Considering all of the factors set forth in ORS 107.105(1)(c) (amended Or Laws 1981, ch 775, § l),1 I *833believe wife is entitled to permanent spousal support of $150 per month in order to make her standard of living not overly disproportionate to that which she enjoyed during the marriage. Kitson and Kitson, supra.

I agree that the parties should be disentangled rather than remain as partners with respect to the ownership of the family home. Slauson and Slauson, 29 Or App 177, 562 P2d 604 (1977). To give the wife the property outright makes for a highly unequal division. I would modify the decree to provide that the home property be awarded to wife as her sole property, subject to a judgment lien on that property in favor of husband in the amount of $10,000, together with interest thereon at the rate of 9 percent per annum from the date of the entry of the modified decree, which judgment shall be paid in full within four years from the date of the modified decree.

Thornton and Warren, JJ., join in this dissent.

ORS 107.105(l)(c) provided:

“(1) Whenever the court grants a decree of annulment or dissolution of marriage or of separation it has power further to decree as follows:
(1% % %
“(c) For the support of a party, in gross or in instalments, or both, such amount of money for such period of time as it may be just and equitable for the other party to contribute. The court may approve, ratify and decree voluntary property settlement agreements providing for contribution to the support of a party. If requested by either party, the court shall make and set forth in its decree the findings of fact upon which its award or denial of *833support was based. In making such support order, the court shall consider the following matters:
“(A) The duration of the marriage;
“(B) The ages of the parties;
“(C) Their health and conditions;
“(D) Their work experience and earning capacities;
“(E) Their financial conditions, resources and property rights;
“(F) The provisions of the decree relating to custody of the minor children of the parties;
“(G) The ages, health and dependency conditions of the children of the parties, or either of them;
“(H) The need for maintenance, retraining or education to enable the spouse to become employable at suitable work or to enable the spouse to pursue career objectives; and
“(I) Such other matters as the court shall deem relevant.”