Wolf and Ferrari

No. 914             December 18, 2024                  895

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON
              In the Matter of the Marriage of
                   William Asher WOLF,
                    Petitioner-Appellant,
                             and
                   Ann Marie FERRARI,
                  Respondent-Respondent.
                Benton County Circuit Court
                    18DR16026; A177719

  Locke A. Williams, Judge.
  Argued and submitted December 20, 2023.
  George W. Kelly argued the cause and filed the briefs for
appellant.
   Lorena Reynolds argued the cause and filed the brief for
respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
  Affirmed.
896                                         Wolf and Ferrari

        ORTEGA, P. J.
        In this appeal of a dissolution judgment, husband
challenges several aspects of the trial court’s rulings: its
imputation of wife’s earning capacity at the level of minimum wage; its award of spousal support to wife, including
an award of compensatory support; and its decision regarding parenting time. As explained below, we affirm.
         Husband asks us to review the judgment de novo
but does not articulate any basis for concluding that this is
an exceptional case meriting such review, arguing instead
that a reversal on de novo review will yield him relief sooner.
This is not an exceptional case justifying de novo review,
ORAP 5.40(8)(c); Turner and Muller, 

, 194-
98, 

 (2010), rev den, 

 (2011). As husband acknowledges, we therefore review for whether the
challenged rulings are supported by facts in the record and
whether they were within the trial court’s allowable discretion. See, e.g., Berg and Berg, 

, 

(2012) (the trial court’s findings must be supported by the
record); Bailey and Bailey, 

, 

(2012) (an award of spousal support is reviewed for abuse of
discretion). Under that standard of review, we discern no
abuse of the trial court’s discretion and therefore affirm,
addressing further only husband’s challenge to the trial
court’s imputation of wife’s earning capacity.
        The dissolution judgment attributes to wife “a gross
income of $2,078 per month for support calculation purposes, which is Oregon’s minimum wage.” Husband argues
that that finding lacks factual support in the record. We
disagree.
         For purposes of calculating child support, a parent’s
income can include the parent’s actual and potential income.
OAR 137-050-0715(1). Potential income means “the parent’s
ability to earn based on relevant work history, including
hours typically worked by or available to the parent, occupational qualifications, education, physical and mental health,
employment potential in light of prevailing job opportunities and earnings levels in the community, and any other
relevant factors.” OAR 137-050-0715(3). If a parent’s actual
Nonprecedential Memo Op: 

 (2024)           897

income is less than the parent’s potential income, the judge
may impute potential income to the parent, OAR 137-050-
0715(6), but a finding that potential income exceeds actual
income must be supported by “nonspeculative” evidence and
relate to “present earning capacity.” Anderson and Anderson,

, 

 (2013); Leif and Leif,

, 

 (2011) (“When determining a parent’s gross income for child support purposes, a
trial court must inquire into the parent’s present income.”).
         Here, wife was unemployed at the time of trial and
had no “actual income.” She was still in Oregon, pending a
move that she sought permission to make (and ultimately
received). Though she had a job offer in New York, it was frozen for an indefinite period. There was no evidence that she
had any employment opportunities available to her beyond
an entry-level position from her brothers that she could take
only after moving to New York. Although she was licensed
as an attorney in two states other than Oregon, she had not
worked as an attorney for a decade, and her only recent work
history was part-time and unsuccessful, in part because she
was considered overqualified for most jobs and had been out
of the workforce for some time.
         The only evidence that husband offered did not
establish that wife could be employed in Oregon at more
than minimum wage at the time of trial; instead, he urges
that wife should be attributed an ability to make the average income earned by lawyers in Ithaca, New York, without
any basis for concluding that wife could earn that amount
after a long absence from legal practice. The record does not
support a non-speculative basis for attributing to wife additional income inconsistent with her current employment
qualifications and opportunities. See Skinner and Skinner,

, 

 (2017) (the trial court
erred in attributing to wife income that did not relate to
her present earning capacity at the time of dissolution). The
trial court’s determination was supported by evidence in the
record and was within its discretion.
        Affirmed.