857
Argued and submitted September 7, 2021, reversed and remanded April 6, 2022
In the Matter of the Marriage of
Daniel Edwin PARDOVICH,
Petitioner-Appellant,
and
Tammy Lynn PARDOVICH,
Respondent-Respondent.
Lane County Circuit Court
19DR05292; A172672
509 P3d 148
Debra E. Velure, Judge.
Erin E. Gould argued the cause for appellant. Also on the
briefs was Erin E. Gould, LLC.
George W. Kelly argued the cause and filed the brief for
respondent.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
PER CURIAM
Reversed and remanded.
858 Pardovich and Pardovich
PER CURIAM
Husband appeals a general judgment of marital
dissolution, challenging the property division. As relevant
here, the trial court awarded two pieces of real property to
wife—the “Springfield property” and the “Bend property”—
and ordered wife to pay a $14,076.50 equalizing judgment
to husband. Husband contends that the court should have
awarded the Springfield property to him. Alternatively, he
contends that, if both properties remain awarded to wife,
the equalizing judgment should be increased to $89,398 to
achieve an equitable distribution of the marital estate. For
the following reasons, we reverse and remand for further
proceedings.
We review the trial court’s division of marital property for abuse of discretion. Code and Code, 280 Or App 266,
271,
380 P3d 1073 (2016). Unless we exercise our discretion
to conduct de novo review—which we do not here1—we are
bound by the trial court’s express and implied factual findings if they are supported by any evidence in the record.
Id.
“We will not disturb a trial court’s ultimate determination
of what property division is just and proper unless the trial
court misapplied the statutory and equitable considerations
required by ORS 107.105(1)(f); determining what is just and
proper in all the circumstances is a matter of discretion.”
Van Winkel and Van Winkel,
289 Or App 805, 810,
412 P3d
243, rev den,
363 Or 244 (2018). “Absent an error in methodology or an outcome outside of the legally permissible range,
we will affirm a trial court’s determination as to what property division is just and proper.”
Id.
The parties were married from July 2015 to March
2019. They do not have children together. Both parties
worked before and during the marriage, and they mostly
maintained separate finances during the marriage. We
limit our discussion to the real property, as it is the focus of
the appeal.
Wife brought the Springfield property with her to
the relationship. She had purchased the property in 2003
1
We have authority to conduct de novo review in equitable proceedings, ORS
19.415(3)(b), but it is discretionary, and we exercise that discretion only in “exceptional cases,” ORAP 5.40(8)(c).
Cite as 318 Or App 857 (2022) 859
with her previous husband (since deceased). In 2013, the
parties began cohabiting there, and husband was added to
the deed. The parties continued living at the Springfield
property once married. Husband argued at dissolution that
the Springfield property was a marital asset, that wife had
had little or no equity in it in 2013, and that the parties had
contributed equally to the equity built after 2013. Husband
requested that the Springfield property be awarded to him.
For her part, wife disagreed that the parties had contributed equally to the post-2013 equity increase, asserting that
she had paid all or most mortgage payments until their separation and had paid most or all of the post-2013 remodeling
costs. Wife initially requested that the Springfield property
be awarded to her, but, in her closing argument at trial, she
asked that it be awarded to husband, with a $90,000 equalizing judgment to her.
As for the Bend property, the parties refinanced
the Springfield property in 2018. In October 2018, wife used
$104,796 from that refinance to put a down payment on the
Bend property, to purchase furniture for the Bend property,
and to pay off $30,000 of premarital debt. There was conflicting testimony as to the status of the relationship at that
point, but the trial court found that October 2018 was when
“the marriage became separate.”
Ultimately, the trial court awarded both real properties to wife, with a $14,076.50 equalizing judgment to
husband. As to the Springfield property, the court treated
the $117,000 appreciation in value since 2013 as marital
property, while it treated the property’s appraised value
and debt in 2013 as wife’s separate asset. As to the Bend
property, the court deemed it to be wife’s “separate property
as the parties were separating at the time of purchase and
it was never intended to be a marital asset.” The court did
not explain how it had calculated the equalizing judgment,
except to say that it considered the “separate property with
an equal division on both sides.”
First assignment of error. Husband contends that
the trial court abused its discretion by awarding both real
properties to wife. We disagree. Although it was not the only
permissible outcome on this record, it was within the legally
860 Pardovich and Pardovich
permissible range. Van Winkel, 289 Or App at 810. We therefore reject the first assignment of error.
Second assignment of error. Husband argues that
the trial court erred by unequally dividing the $117,000 of
post-2013 appreciation in the Springfield property, without
making factual findings sufficient to overcome the presumption of equal contribution. See ORS 107.105(1)(f)(C) (creating
a “rebuttable presumption that both parties have contributed equally to the acquisition of property during the marriage”). We disagree that the court’s findings were insufficient to overcome the presumption of equal contribution.
The court found that husband had made some contribution
to the post-2013 appreciation in value, particularly through
“sweat equity,” but it implicitly found that wife had contributed more to that appreciation. That implicit finding was
supported by wife’s testimony and other evidence regarding the parties’ post-2013 contributions to the Springfield
property, and it was sufficient to overcome the presumption
and allow an unequal division of the $117,000.2 We therefore
reject the second assignment of error.
Third and fourth assignments of error. Husband
argues that the trial court erred by excluding the Bend
property from the marital estate—i.e., by treating it as
wife’s “separate property”—when it was acquired during
the marriage with marital funds. Alternatively, husband
argues that, in calculating the equalizing judgment, the
court failed to account for wife’s use of marital funds to purchase the Bend property. In response, wife concedes that
the Bend property is a marital asset. She contends that no
error occurred, however, because, when the court identified
the Bend property as wife’s “separate property” and not a
“marital asset,” what it meant was that the Bend property
is a marital asset but that it was purchased exclusively with
money from wife’s share of the equity in the Springfield property (thus rebutting the presumption of equal contribution).
2
We cannot tell from the record how the trial court actually divided the
$117,000, percentage wise, but both parties appear to agree that it was divided
unequally. Husband asserts that the court awarded the entire $117,000 to wife,
despite having carved out that amount as a marital asset, but we disagree on
that point. The trial court did make an ambiguous statement about awarding “it”
to wife, but, in context, we understand “it” to mean the Springfield property, not
the $117,000.
Cite as 318 Or App 857 (2022) 861
The court’s description of the Bend property as “separate property” and not a “marital asset” appears in its formal written judgment. We are unpersuaded that the court
actually meant that the property is a marital asset, when
it said the opposite. We presume that the court treated the
property as stated in the judgment.
Wife appropriately concedes that the Bend property is a marital asset. We therefore reverse and remand
for the trial court to reconsider its award, treating the Bend
property as a marital asset. As for the equalizing judgment,
husband contends that the trial court failed to account for
everything that it should have in arriving at the amount of
$14,076.50. On remand, the trial court will need to recalculate the equalizing judgment, taking into account the correct treatment of the Bend property, and the parties may
request findings or clarification in that context.3
Reversed and remanded.
3
We note that, on the existing record, we would be unable to provide meaningful appellate review of the equalizing judgment, because, despite scrutinizing
the record and the arguments made below, we are unable to discern how the
equalizing judgment was calculated. See Muthukan and Easterbrook, 306 Or App
579, 581,
475 P3d 459 (2020) (reversing and remanding, where it was “not possible to determine” how the court reached its decision on property division and
therefore not possible to “review whether the trial court’s judgment is within its
range of discretion”); Kotler and Winnett,
282 Or App 584, 599,
385 P3d 1200
(2016) (similar); Fine and Fine,
272 Or App 307, 320,
355 P3d 198 (2015) (similar); Olson and Olson,
218 Or App 1, 15,
178 P3d 272 (2008) (“When a trial court
makes a discretionary decision, the record must reflect a proper exercise of that
discretion. Although the court’s explanation need not be lengthy or complex, it
must comport with the applicable legal framework and describe the basic reasons
for the decision.” (Internal citation omitted.)). But see also Botofan-Miller and
Miller,
365 Or 504, 525,
446 P3d 1280 (2019), cert den, ___ US ___,
141 S Ct 134
(2020) (“If defendant believed that further explanation than the trial court provided was necessary for meaningful appellate review, it was incumbent on him
to request it.”).
