In re Trout and Eitzen

“When determining whether a substantial change of circumstances exists to warrant modification or termination of spousal support, the trial court must ‘consider income opportunities and benefits of the respective parties from all sources[.]’” ORS 107.135(4)(a). To make that determination, “the trial court must consider whether the new spouse’s income is actually available to the remarried party.” Davis v. Lallement, 287 Or App 323, 329 (2017)

Appellant and his wife divorced in 2017, and after Wife remarried in 2018, Appellant moved the trial court to modify or terminate the spousal support obligation imposed at the original dissolution proceeding. Prior to her second marriage, Wife and her new husband signed a premarital agreement defining each person’s income, including her spousal support, as separate property. The trial court reduced the spousal support in 2018, but denied any change to the support obligation when he filed a second motion in 2020. On appeal, Appellant argued that the trial court erred in denying the 2020 motion because it did not properly consider the extent to which the income of Wife’s new husband was “actually or potentially available” to her. “When determining whether a substantial change of circumstances exists to warrant modification or termination of spousal support, the trial court must ‘consider income opportunities and benefits of the respective parties from all sources[.]’” ORS 107.135(4)(a). To make that determination, “the trial court must consider whether the new spouse’s income is actually available to the remarried party.” Davis v. Lallement, 287 Or App 323, 329 (2017) (emphasis in original). The Court reasoned that the trial court did not rely solely on the terms of the premarital agreement, but also considered the wife undisputed testimony about her income, as well as other exhibits and testimony about the household expenses, when it found that Wife and her new husband “clearly delineated their income and assets as separate property.” Thus, the Court held the trial court did not err in concluding there was no substantial change in Wife’s economic circumstances in denying Appellant’s second motion. Affirmed.