In re the Marriage of Jackson

ROSSMAN, J.,

dissenting.

Because I regard the majority’s strained modification of the trial court’s decree as tinkering, I dissent.

*285I understand the majority’s motives. Wife should attempt to attain some measure of self-sufficiency; husband cannot be expected to be a guarantor of 100 percent of her living expenses for the rest of her life. However, I believe the majority’s methodology is suspect. It puts the cart before the horse by fashioning a stepped-down support plan that is based on the majority’s sense of what ought to be, rather than on objective evidence that is present in this record.

In pursuit of its objective, the majority cites Tannler and Tannler, 68 Or App 432, 438, 683 P2d 110, rev den 297 Or 547 (1984). Tannler simply does not authorize what the majority has done in this case. It is true that we adopted a stepped-down support plan in that case, but we had solid evidence on which to base that decision. There, the wife had secretarial experience and had just completed course work in word processing. Given her improving job skills and earning potential, we were able to conclude that her income would have increased enough in three years to justify a reduction of her spousal support.

This case is a completely different matter. I have read every bit of this record, and there is absolutely no evidence whatsoever regarding wife’s employability, plans for retraining or income earning potential. The only evidence of her immediate goals is that she intends to spend time caring for her sick mother. In conducting our de novo review, we have the same evidence that the trial court had to consider in deciding this case. Within the limitations of that framework, it logically follows that we should not reverse a trial court’s decision unless we can clearly say, on the evidence, that error has been committed. Applying that standard here, the sole issue presented (given husband’s concession that the award should be permanent) is whether the trial court erred in fixing the level of husband’s monthly support obligation. On finding the award to be too high, we should then obviously reduce it to the level supported by the evidence. Our role in this case should end there. As enjoyable as creativeness and inventiveness may be, we have no business going on a tinkering escapade by divining a step-down formula when the record does not provide any discernible dates or events in the future on which to build such a formula. Just as one needs sand in order to build sand castles, one needs evidence in order to fashion a dissolution decree.

*286By reason of its continuing jurisdiction over this case, the trial court is available to the parties to modify the decree on the basis of any unanticipated future change in the circumstances. The preferable approach in cases of this kind is to recognize that the trial court is in a position to monitor the changes as they actually occur, as opposed to this court, which is far removed from the scene and can only guess what the future may be.

Accordingly, I must respectfully dissent.