In re the Marriage of McLennan

RIGGS, P. J.,

dissenting.

The trial court awarded indefinite spousal support to wife in this case. The majority modifies that award to provide stepped-down support that will terminate at the end of *385eight years. In so doing, it correctly articulates the factors that we are to consider, but it applies those factors in a manner that fails to acknowledge the reality of wife’s situation.

This was a 19-year marriage,1 at the end of which husband had advanced degrees and wife had little more than her high school diploma. Husband earns over $3,000 per month and wife earns $800. The significant and undoubtedly permanent disparity in their earning capacities, along with the lack of certainty as to wife’s future employment, leads me to conclude that indefinite support — which can be modified or terminated if need be when that uncertainty is resolved — is the only just and equitable award in this case.

As lawyers and judges, we can easily join the majority in saying, “wife is young enough to get an education and then get a better paying job.” It is quite another matter for wife, who is 38, to raise two children while she chooses a career, gets an education that qualifies her for that career, finds a job, and then earns a salary that allows her to finance a lifestyle that would be commensurate with even the modest one that she enjoyed during the parties’ marriage.

The majority concludes that wife should be able to attend school part time and “complete a vocational program in four years,” but it bases that conclusion on nothing more than the fact that wife “presented no evidence” that she couldn’t accomplish that. 140 Or App at 382. In a dissolution proceeding, wife bears no such burden. There is also the question of whether wife, at age 42 or older and armed with the equivalent of a two-year vocational degree, will even then be in a position that allows her “to become self-supporting at a standard of living not overly disproportionate to that enjoyed during the marriage,” ORS 107.105(l)(d)(E). The majority concludes that wife “has good prospects” for achieving that goal, 140 Or App at 383, but the practical reality is that its graduated spousal support award will not allow wife to obtain the requisite “appropriate education,” id., particularly on a part-time basis, that would improve her chances of earning the income that she will need. The majority quotes Grove and Grove, 280 Or 341, 353, 571 P2d 477, mod 280 Or *386769, 572 P2d 1320 (1977), for the proposition that courts should “further the goal of ending the support-dependency relationship within a reasonable time if that can be accomplished without injustice or undue hardship.” Yet even in Grove, the Supreme Court awarded “permanent” spousal support to the wife. The facts there were similar to those here: The husband was a professor and the wife had been a homemaker, but at the time of the dissolution was employed in a clerical position and planned to return to school. The court determined that, “fi]n light of the great disparity between the parties’ earning capacities in this case, there are two general approaches by which we might arrive at a spousal support award which would be just and equitable between the parties.” Id. at 358 (emphasis supplied). The first approach involved awarding lower spousal support payments during the years when wife was receiving child support and then increasing the spousal support to “a somewhat higher permanent award in later years after the child support has terminated.” Id. The second approach, which the court deemed “preferable” in that case, involved awarding higher spousal support at the outset, to allow the wife to complete her education, and then reducing the award to “a somewhat lower level of permanent support” after wife had significantly increased her earning capacity. Id.

It is significant that under either approach, the wife was to receive a “permanent” spousal support award, which we now refer to as an award of “indefinite” duration. Ranes and Ranes, 118 Or App 264, 268 n 2, 846 P2d 1195 (1993). Indefinite support was chosen because of the “great disparity” in the parties’ earning capacities, Grove, 280 Or at 358, a disparity that would continue even after wife had received an education and become employed in a considerably better paying job. That is precisely the situation presented by the case at bar.

There is one additional basis for affirming the award of indefinite spousal support in this case: We do not know which career wife will enter, we do not know whether she will be able to obtain full-time employment in her chosen field, and we do not know whether even full-time employment in that field will allow her to become self-supporting at the requisite level. Notwithstanding those significant unknowns, *387the majority is comfortable with terminating wife’s support in eight years. I am not. Once wife’s eight-year support award has expired, it cannot be revived.2 Accordingly, I would award indefinite support, which may be decreased or terminated at such time as wife begins earning a sufficient income.

The majority opinion refers only to the parties having “separated after 17 years,” 140 Or App at 381. They were married in April 1976, and the judgment of dissolution was entered in April 1995.

Although naturally-expired spousal support awards cannot be revived, the 1991 enactment of ORS 107.136 created a means by which court-terminated spousal support can be reinstated. By its terms, ORS 107.136 applies only if support was “terminated under ORS 107.135,” that is, only if the original award provided support for a length of time — be it a specific or an indefinite number of years — then a modification of that award was sought under ORS 107.135 and, as a result of that modification proceeding, the award was terminated. See Edwards and Edwards, 124 Or App 646, 863 P2d 513 (1993), adhered to on recon 127 Or App 489, 873 P2d 401 (1994). ORS 107.136 provides that reinstatement of a spousal support award may be sought only if the basis on which that award was terminated pursuant to ORS 107.135 “ceases to exist” and the reinstatement motion is filed within the period of time that support would have been provided under the award that was terminated. Neither statute has application in this appeal from an original dissolution judgment.