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In re Medlyn2/4/2004
En Banc
Argued and submitted May 28, 2003; resubmitted en banc November 5, 2003.
Affirmed.
Linder, J., dissenting.
The parties' 26-year marriage was dissolved in 1993. In doing so, they entered into a stipulated agreement that required husband to pay spousal support for eight years. In 2001, wife moved to modify husband's support obligation due to a substantial and unanticipated change in circumstances. The trial court granted wife's motion. Husband appeals and, on de novo review, ORS 19.415(3) (2001), we affirm.
At the time of the dissolution in 1993, wife suffered from a back injury that she had sustained in a 1978 automobile accident. During the dissolution proceeding, she requested temporary spousal support. Wife was not working at the time and had no other source of income. She argued that her potential income was limited because of her back injury. Additionally, wife argued that she could not work while husband argued that wife could work. The parties entered into a stipulated spousal support settlement. That settlement was incorporated into the dissolution judgment and required husband to pay spousal support to wife for eight years, beginning at the rate of $800 per month and decreasing every two years. The dissolution judgment provided that husband was to make his final payment in April 2001.
After the 1993 dissolution, husband became unemployed and, because of that change in circumstances, sought modification of the judgment to reduce his spousal support obligation. Husband's support payments were lowered, but the eight-year duration of the payments was unaffected.
Sometime between 1997 and 2000, wife suffered spinal fractures. In 2000, wife's doctors determined that she should not work and the Social Security Administration (SSA) determined that she was totally disabled. In 2001, wife moved for modification of the dissolution judgment to provide for permanent spousal support at the rate of $1,300 per month. In support of that motion, wife stated that, since the modification of husband's support obligation in 1994, "there have been substantial changes in my financial circumstances and abilities." Specifically, wife stated:
"At the time the original decree was entered and at the time of the modification of the decree, I had degenerative back problems but was not restricted from employment. In both March and September of 2000, I had two episodes where my back broke because of activity."
Wife further stated that, because of those incidents in 2000, she was "unable to work or seek employment due to the degenerative nature of my back disease and injury ." Finally, wife stated that SSA determined that she is totally disabled, that she began receiving Supplemental Security Income (SSI), and that her doctors recommended that she not work. Husband opposed the motion.
The trial court concluded that there had been a substantial and unanticipated change in circumstances. Specifically, the trial court found that, although wife "was aware that she had back problems at the time of the dissolution in 1993, she was not aware of the compression fractures or that she would be totally disabled." The trial court modified the spousal support award to $800 a month. On appeal, husband challenges the conclusion that wife has experienced a substantial change of circumstances.
ORS 107.135 controls whether a modification of spousal support is proper. ORS 107.135 provides, in part:
"(2) In a proceeding under this section to reconsider the spousal or child support provisions of the decree, the following provisions apply:
"(a) A substantial change in economi
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