In Re Marriage of Weber

DURHAM, J.,

dissenting.

The majority adopts an interpretation of ORS 107.135(3)(a) that contradicts the ordinary meaning of the words of that statute. The majority claims that a paragraph in this court’s decision over half a century ago in Feves v. Feves, 198 Or 151, 254 P2d 694 (1953), compels that interpretation of the statute. However, a careful reading of the paragraph in Feves on which the majority relies discloses that the majority has misread Feves and that that case affords no justification for the contradictory statutory construction that the majority has adopted. We must construe the text and context of ORS 107.135(3)(a), and apply the familiar meaning of the statute’s words. When we examine the statute in that manner, it is apparent that the trial court and the Court of Appeals correctly decided that the evidence adduced here *71satisfied the statutory standard for reconsideration of an award of spousal support. Because the trial court and Court of Appeals correctly decided this case, the majority’s decision to reverse is a legal error. I respectfully dissent.

The principal issue in this case is whether the increase in husband’s post-dissolution income, as shown in the record evidence, constitutes a “substantial change in economic circumstances of a part/’ under ORS 107.135(3)(a). If the answer to that question is “yes,” then the statute authorized the trial court to reconsider its order of spousal support. Because the source of law that controls the answer to that question is a statute, this court must begin its analysis with the text and context of the statute and, in doing so, must give words of common usage “their plan, natural, and ordinary meaning.” PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993).

ORS 107.135 contains a complete statement of the legislature’s policy regarding the court’s authority to reconsider and modify a judgment of dissolution of marriage, including an award of spousal support, and the standard that controls the court’s decision to do so. ORS 107.135 provides, in part:

“(1) The court may at any time after a judgment of annulment or dissolution of marriage or of separation is granted, upon the motion of either party * * *:
“(a) Set aside, alter or modify any portion of the judgment that provides * * * for the support of a party * * *.
^ * * *
“(3) In a proceeding under this section to reconsider the spousal or child support provisions of the judgment, the following provisions apply:
“(a) A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of an involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse.
*72* * * *
“(4) In considering under this section whether a change in circumstances exists sufficient for the court to reconsider spousal or child support provisions of a judgment, the following provisions apply:
“(a) The court or administrator, as defined in ORS 25.010, shall consider income opportunities and benefits of the respective parties from all sources, including but not limited to:
“(A) The reasonable opportunity of each party, the obligor and obligee respectively, to acquire future income and assets.”

(Emphasis added.)

In overview, several aspects of the foregoing statutory scheme are clear. First, subsection (1) grants authority to the trial court to modify the spousal support provision of an existing judgment of dissolution of marriage. Second, paragraph (3)(a) establishes the legal standard that controls whether the court may embark on a reconsideration of its order of support: “[a] substantial change in economic circumstances of a party * * *.”1

Third, the legislature created no special statutory definition of that standard or any of its terms. The statutory standard is open-ended in the sense that any substantial change in the economic circumstances of a party will suffice. However, the legislature, in subsection (4), did set out a list of factual matters that the court must consider in determining whether a change of circumstances is “sufficient for the court *73to reconsider spousal or child support provisions of a judgment,” including the parties’ present and future income opportunities.

Fourth, the statute does not require the court, on reconsideration, to make any particular change in the existing support award. If a party proves that the economic circumstances of either party have changed substantially since the court entered the order of spousal support, then the statute merely authorizes reconsideration of the order of support. The statute does not entitle a party to a modification of spousal support payments. Rather, the court, on reconsideration of its award of support, must determine whether and to what extent it should modify the order of support, taking into account all the relevant circumstances that make any award of support just and equitable, ORS 107.105(l)(d), including the substantial change of economic circumstances of a party that has occurred and the fact that the parties no longer are married. In construing ORS 107.135, we must continue to bear in mind the distinction, evident from the statute’s text, between the court’s authority to reconsider a support award on a showing of a substantial change in the economic circumstances of a party and a party’s claim of entitlement on reconsideration to an increased level of support.

Turning to the text of ORS 107.135(3)(a), it is apparent that the statutory standard for reconsideration, “[a] substantial change in economic circumstances of a party,” does not incorporate unusual legal jargon. According to one dictionary, the “economic circumstances of a party” are the circumstances that pertain to a party’s income and expenditures concerning the management of a household. Webster’s Third New Int’l Dictionary 720 (unabridged ed 1993) (defining “economic” in part as “of or relating to a household or its management”). The word “change” refers to “an instance of making or becoming different in some particular: * * * a divergence from uniformity or constancy in any quality, quantity, or degree: ALTERATION, MODIFICATION, VARIATION * * Id. at 374. The word “substantial” means, as pertinent: “IMPORTANT * * * considerable in amount, value, or worth * * Id. at 2280.

*74The terms that the legislature incorporated into ORS 107.135(3)(a) and (4) reinforce the focus of the statutory standard on economic matters. Paragraph (3)(a) refers to “the cost of reasonable and necessary expenses to either party * * *.” Subparagraph (4)(a)(A) refers to the “income opportunities and benefits of the respective parties from all sources” including “[t]he reasonable opportunity of each party * * * to acquire future income and assets.”

The statute’s text makes it clear that the statutory standard for reconsideration of a support award authorizes reconsideration if the evidence demonstrates that an alteration in a party’s reasonable and necessary household expenses or income has occurred and the alteration is “important” or “considerable in amount, value or worth.” The majority recognizes that the legislature’s standard for reconsideration, when read in light of the ordinary meaning of its terms, “could” include a post-dissolution increase in a payor spouse’s income, stating: “The post-dissolution increase in a payor spouse’s income could be interpreted as a substantial change in economic circumstance if the text of the statute were our sole consideration.” 337 Or at 67. The key to the threshold standard for reconsideration is whether the proven change in a party’s economic circumstance is a substantial one. So long as the post-dissolution increase in one party’s income is considerable in amount, value, or worth — and, thus, is a substantial change in the economic circumstances of that party — the text of the statutory standard for reconsideration is satisfied.

The evidence in the record, and especially the parties’ respective incomes, which the court must consider under ORS 107.135(4)(a), satisfies the standard that the statutory text establishes. According to the evidence, when the parties dissolved their marriage in 1995, husband earned an annual income of $150,000. By 1997, husband’s income had returned to its pre-1994 level and, from 1997 through 1999, husband’s pretax income averaged $249,000, which is an increase of 66 percent. At the time of the modification hearing in 2000, husband estimated that his income for that year would range between $240,000 and $270,000, which is an increase of between 60 percent and 80 percent. That level of income had *75permitted husband to resume the comfortable standard of living that he had enjoyed during the parties’ marriage.

Wife’s predissolution annual income, $9,876, had risen to $51,600 by the time of the hearing on the motion for modification, but her lifestyle had deteriorated since the dissolution. Although the trial court found that wife was “not starving,” the court also found that she was hving “substantially below the marital standard of living.”

In the context of the parties’ respective economic circumstances, a jump in husband’s income of the magnitude shown here in only two years easily qualifies, in the words of ORS 107.135(3)(a), as a substantial change in husband’s economic circumstances. Thus, I must conclude, on the basis of an examination of the ordinary meaning of the text of ORS 107.135(3)(a), that the trial court had statutory authority to reconsider its award of spousal support.

The majority asserts, however, and I agree, that our construction of the statutory standard for reconsideration also must take into account any judicial decisions that interpret the statutory standard. That is so, because, if the legislature adopted a statutory standard for which this court already had developed a specific legal meaning or usage, then it is probable that the legislature intended to incorporate the same meaning or usage into the statute.

Following that reasoning, the majority spends little time considering the effect of the statutory text. Instead, the majority asserts that a paragraph in Feves points in a different direction from the statutory text. Because a correct understanding of Feves is essential to permit a fair consideration of the majority’s theory, I discuss Feves in detail.

In Feves, the parties divorced in 1940. The decree incorporated an agreement between the parties requiring the husband to pay alimony to the wife in the sum of $35 per month. Eight years later, the parties entered into an agreement that provided in part that the parties had agreed to delete the alimony provision from the court’s decree and that the wife had agreed to accept a lump-sum payment of $500 in lieu of all demands against the husband for periodic alimony payments. The parties filed their agreement in court in 1948 *76and carried it out, but did not obtain the court’s approval of the agreement at that time.

In 1951, the wife moved to modify the divorce decree to increase the monthly alimony payment, among other things. The husband opposed the motion and asked the court to enforce the 1948 agreement. At the hearing, the evidence demonstrated that the husband’s income had increased significantly since the divorce. The trial court modified its divorce decree and granted the wife’s request for an increase in alimony. The husband appealed the modification of the alimony award.

This court began by evaluating the parties’ 1940 agreement that called for the commencement of alimony payments. The court held that, even though that agreement purported to settle the wife’s rights against the husband for alimony, the right to alimony was based on a statute, not a contractual obligation. As a result, the original divorce decree for alimony “was subject to modification upon changed conditions [,]” Feves, 198 Or at 159, which was the then-prevailing standard for modification of a divorce decree. The court held that the 1948 agreement did not bind the parties because the court had not approved it, and, as a result, “the court had jurisdiction to entertain plaintiffs motion for a modification of the decree as to alimony.” Id. at 161 (emphasis added).

On the merits of the motion for modification, the issue was whether the wife, in the parties’ 1948 agreement, had waived her right to obtain a modification of the alimony award. The wife acknowledged the 1948 agreement, but argued that the husband in recent years had enjoyed a substantial increase in his annual income and that that circumstance alone was “such a change of conditions as to warrant a modification of the decree for an increase in the alimony payments.” Id. at 162. The husband sought enforcement of the 1948 settlement agreement regarding alimony. The court noted that the husband’s income had increased in the past few years.

The court characterized the wife’s argument in the following terms:

*77“To support her contention that defendant’s present income is the criterion for determining the amount of alimony that should be paid, plaintiff invites our attention to the case of Strickland v. Strickland, 183 Or 297, 304, 192 P2d 986 [(1948)].”

Id. (emphasis added). In other words, the court understood the wife to claim that she was entitled to a greater alimony payment based solely on whether the husband’s income had increased. After distinguishing Strickland, the court addressed that argument in the following passage:

“In a motion for modification of a decree to increase or decrease the amount of alimony payments [,] the financial status of the former husband is an important factor to consider in connection with his ability to pay. But his improved financial status, if any, does not of itself ordinarily warrant an increase, and the amount of such increase, if it be determined that an increase is necessary and proper, is usually governed by considerations different from those which apply to an original allowance at time of decree. It is largely governed by the necessities of the former wife and the ability of the former husband to pay.
“Divorce terminates the marital status. Thereafter, the parties bear no relation to each other. They are as strangers. But for the statute, no obligation whatever would exist for farther support and maintenance of the former wife.
“It is manifest that this statutory obligation for support and maintenance should not be so interpreted as to continue the rights of the former wife just as though no divorce had been granted. The statute does not contemplate a continuing right in her to share in future accumulations of wealth by her divorced husband, to which she contributes nothing.
“However, under the facts of this case, we are of the opinion that the agreement between the parties entered into in July, 1948, insofar as it concerns the question of alimony, should have been approved by the trial court in this proceeding and is approved by this court. It was a fair agreement, is based upon a valuable consideration, and has been completely executed.”

Id. at 163-64 (emphasis added). Accordingly, the court struck the modified award of spousal support because the wife, in *78the 1948 agreement, had settled her claim for any future increase in spousal support.

The majority attempts to restate what it describes as the Feves “rule.” However, the majority’s description of the court’s statements ra Feves contains important errors, which, in turn, have skewed the majority’s interpretation of ORS 107.135(3)(a). I explain those errors below.

The majority summarizes its reading of Feves in the following passages:

“In summary, based on the three principles discussed above, Feves held that a post-dissolution increase in a payor spouse’s income ‘does not of itself ordinarily’ constitute a ‘changed condition’justifying a reconsideration of the payor spouse’s support obligation. * * *
# * * *
“Therefore, we conclude that, under ORS 107.135(3)(a), a post-dissolution increase in a payor spouse’s income ‘does not of itself ordinarily’ constitute a ‘substantial change in economic circumstances’ requiring a court to reconsider a previous spousal support award. We now turn to a consideration of the rule’s application in this case.
“As noted, there has been a post-dissolution change in husband’s income as that term commonly is understood. As Feves makes clear, however, a post-dissolution increase in a payor spouse’s income, unaccompanied by any showing of, for example, a change in the payee spouse’s needs, is ordinarily not a substantial change in economic circumstances within the substantive meaning of that statutory phrase.”

337 Or at 66, 68 (footnotes omitted).2

*79I disagree with the majority’s interpretation oí Feves for several reasons. The paragraph in question from Feves does not mention, let alone define, the phrases “change of circumstances” or “changed conditions” that reflected the contemporary standard for reconsideration of a spousal support award. That is so because the court was not addressing those legal standards in that paragraph. The court already had determined, earlier in the opinion, that the decree was “subject to modification upon changed conditions! ]” and that “the court had jurisdiction to entertain plaintiffs motion for a modification of the decree as to alimony.” Id. at 159,161.

Instead, the topic that the court was discussing was the wife’s argument that she had a right to an increased alimony payment due solely to the fact that her former husband’s income had increased and that the court should determine the amount of the increased alimony payment simply by measuring the size of the increase in the husband’s income. The court disagreed with the first of those arguments, stating that the former husband’s “improved financial status, if any, does not of itself ordinarily warrant an increase * * *.”3 Id. at 163. In other words, the wife’s bare assertion that the husband’s income picture had improved did not entitle the wife, ipso facto, to a larger alimony payment.

The court also disagreed with the second of the wife’s arguments about the proper measure for determining the amount of any increase, stating:

“[T]he amount of such increase, if it be determined that an increase is necessary and proper, is usually governed by considerations different from those which apply to an original allowance at time of decree. It is largely governed by the necessities of the former wife and the ability of the former husband to pay.”

*80Id. It is important to note that the factors that the court mentioned in that passage logically could be relevant to the court’s analysis only after the court already had determined that “changed conditions” existed, thus justifying reconsideration, and after the court had determined that an increase in alimony in some degree was necessary and proper.

I agree that not every post-dissolution increase in one party’s income calls for an increase in spousal support. And, because the parties no longer are married, the court, after deciding that an increase is necessary and proper, must apply different criteria in setting the amount of the increase from those that determined the amount of the existing spousal support award. But the majority takes those points out of their proper context in reading Feves to establish a demanding threshold standard for the reconsideration process, especially one that contravenes the plain terms of Oregon’s current statute.

To illustrate the last point, the text of ORS 107.135(3)(a) authorizes reconsideration on a showing of a substantial change in economic circumstances of one party. In this case, husband experienced a 66 percent increase in income in just two years after the dissolution and even greater increases in subsequent years. Even though those increases were exceptional by almost any definition, the majority holds that the evidence does not meet the threshold standard in the statute for reconsideration. Additionally, the statute clearly calls for the application of the “substantial change” standard to the economic circumstances of either party. The majority, however, determines that the evidence did not meet the statutory threshold for reconsideration because that evidence focused only on husband’s increase in income and did not include a showing of wife’s needs. Those conclusions contradict, rather than support, the legislative policy on reconsideration that the statute’s words reflect.4

*81The majority explains that the parties agreed to a level of support at the time of the dissolution and should have bargained for a different allowance for spousal support if husband’s income potential improved. But, as Feves explained, a spouse’s right to support and the right of either spouse to seek reconsideration of a support award on changed conditions are protected by a statute. This court cannot disregard the legislature’s statutory process for reconsideration because the party seeking reconsideration could have bargained for better terms regarding support at the time of dissolution.

Even when considered on its own terms, the majority’s proposed statutory interpretation does not withstand analysis. The majority’s premise is that, on these facts, the court-created “changed conditions” standard, discussed in Feves, allowed reconsideration only if wife established each of two factual predicates, that is, husband’s ability to pay additional spousal support and wife’s need for additional spousal support. Assuming arguendo that that premise is correct, the majority fails to acknowledge that the legislature’s later enactment, ORS 107.135(3)(a), authorizes reconsideration if only one former spouse’s economic circumstances have changed substantially. The majority never returns to the statutory text — the critical key to the legislature’s intent — to resolve the conflict between the “rule” that the majority draws from Feves and the clearly different rule that the current statute creates. Instead, the majority concludes that “the legislature intended to include the Feves rule within the substantive meaning of the statutory phrase, ‘substantial *82change in economic circumstances.’ ” 337 Or at 68. That quotation of the statute omits the critical statutory phrase, “of a party,” and the majority ignores that phrase in its analysis of the statute. Only by disregarding the significance of that statutory phrase is the majority able to conclude, in accordance with its reading of Feves, that wife’s evidence was insufficient because, although she proved that husband experienced a significant post-dissolution increase in income, she failed to prove her need for additional spousal support. 337 Or at 68-69. It is clear that the statute does not demand that sort of proof. The majority’s conclusion demonstrates yet again that this court acts at its peril when it announces a statute’s meaning without first giving effect to all its words.

For the reasons stated above, I conclude, in accordance with the decisions of the trial court and Court of Appeals, that wife’s factual showing of a “substantial change in economic circumstances of a party,” ORS 107.135(3)(a), was sufficient to authorize reconsideration of the spousal support award. Moreover, on the basis of the facts explained in greater detail in the decision of the Court of Appeals, I conclude that the trial court’s upward adjustment of the award of support was correct. In particular, the evidence demonstrates that husband’s increased income resulted from market conditions in his professional field over which he had no control, not from additional professional training or extra work on his part. The parties were married for approximately 24 years. Husband developed his income-earning capacity during the marriage with wife’s support.5 Husband experienced a significant drop in income during only one year of the *83marriage: the final year. As a result of the rapid and significant increase in husband’s post-dissolution income due solely to market factors in the medical profession, he again enjoys the high standard of living that he enjoyed during the marriage; wife’s standard of living, by contrast, is significantly below that which she experienced during the marriage. Under the facts of this case, the trial court’s upward adjustment in the spousal support award was not erroneous.

I respectfully dissent.

Paragraph (3)(a) establishes a more demanding legal standard for modification of an award of compensatory spousal support, but this case does not involve that kind of spousal support award. In that different context, paragraph (3)(a) requires that the change of circumstances that reduces the earning capacity of the paying spouse be “involuntary, extraordinary and unanticipated * * It is worth noting that the legislature did not incorporate those criteria into the legal standard that controls here and chose, instead, to use only the legal criterion that the change of circumstances be “substantial.” In its analysis of this case, the Court of Appeals twice commented on the fact that the post-dissolution change in husband’s income resulted from an “unforeseen” change in the economic environment of the medical profession. Weber and Weber, 184 Or App 190, 200-01, 56 P3d 406 (2002). Although that factual determination certainly is correct, the foregoing discussion demonstrates that the statutory standard that applies here does not incorporate a proof requirement that the change of circumstances be “unanticipated.”

I note that the passage in Feves that the majority attempts to synthesize (emphasized in the preceding quotation) is obiter dictum. The issue before the court was whether the wife’s 1948 agreement was binding on her and, thus, fully settled any future claim by her to an increase in alimony payments. The court’s holding was that the 1948 agreement was binding on the wife and precluded any modification. The court’s discussion in the paragraph in question of the factual considerations about the parties’ respective financial conditions that otherwise might support an increase in alimony had nothing to do with the legal issue whether the 1948 agreement was binding.

Neither Feves nor the majority opinion provides any clear explanation of the meaning or effect of the word “ordinarily*’ in the quoted passage. The reader cannot determine from that term how to distinguish an “ordinary” post-dissolution increase in one spouse’s income from an increase in income that is not “ordinary.” That circumstance is likely to lead to confusion and an unfortunate increase in litigation in the lower courts, because the majority opinion effectively engrafts the adverb “ordinarily,” with all its inherent ambiguity, onto the statutory threshold for reconsideration of spousal and child support awards in ORS 107.135(3)(a).

The majority notes in a footnote that the statutory standard that determines whether the court may reconsider a spousal support award applies with equal force to the reconsideration of an award of child support. 337 Or at 68 n 8. The majority asserts, however, that the legislature has created other statutes that assist the court in determining the amount of child support that the parents should pay, citing ORS 25.270 to 25.290. It is true that those statutes obligate the state to develop a formula for determining child support in judicial proceedings, ORS 25.275, and *81that, in a judicial proceeding for modification of a child support obligation under ORS chapter 107, the amount of support that the child support formula establishes is presumed to be the correct amount of the obligation, ORS 25.280.

The problem that the majority fails to consider is that the legal standard in ORS 107.135(3)(a) for reconsideration of a spousal or child support award applies at the threshold of the reconsideration process, whereas the child support formula mentioned above applies during a judicial child support modification proceeding. In a proceeding seeking reconsideration of a child support award, the evidence first must establish a “substantial change in economic circumstances” under ORS 107.135(3)(a) before the court can consider the effect of the child support formula. As a consequence, the high barrier to reconsideration that the majority erects in this spousal support context will apply with equal force to prevent reconsideration of awards of child support. In those cases, the failure of the evidence to satisfy the majority’s high threshold standard for reconsideration will obviate the need to resort to child support formulas to determine a correct amount for child support.

Feves states:

“The statute does not contemplate a continuing right in [the wife] to share in future accumulations of wealth hy her divorced husband, to which she contributes nothing.”

Id. at 164 (emphasis added).

The emphasized portion of that sentence serves to distinguish this case from the point that the Feves court sought to make. Unlike a post-dissolution increase in wealth to which the former wife truly contributes nothing, such as, for example, a lottery jackpot, the post-dissolution increase in husband’s wealth here was attributable solely to his earning power in the medical profession. Wife helped to create and support husband’s earning capacity during the parties’ 24-year marriage and, therefore, contributed significantly to husband’s capacity to increase his income after the dissolution.