Oregon Court of Appeals Reports

IN RE MARRIAGE OF UWIMANA AND RWANGANO, A127353 (Or.App. 12-13-2006) In the Matter of the Marriage of EMERITHA UWIMANA, Respondent-Cross-Appellant,and FELICIEN RWANGANO, Appellant-Cross-Respondent,and YVES NSHIMIYE and ANGELINE MUTIMA, Third-Party Adult Children. 0330370; A127353. Oregon Court of Appeals. Argued and submitted June 27, 2006. FILED: December 13, 2006

Appeal from Circuit Court, Benton County. Louis J. Fasano, Judge pro tempore. (Trial)

George W. Kelly argued the cause and filed the briefs for appellant-cross-respondent.

Pamela S. Hediger argued the cause for respondent-cross-appellant. With her on the briefs was Evashevski, Elliott, Cihak & Hediger, PC.

Before Landau, Presiding Judge, and Schuman, Judge, and Rasmussen, Judge pro tempore.

SCHUMAN, J.

Property division reversed and remanded with instructions
to divide property in accordance with this opinion;
otherwise affirmed.

In this dissolution of marriage case, husband challenges
the trial court’s property distribution. In particular, he
argues that the trial court erred in making him responsible
for two-thirds of the preseparation credit card debt, for
giving wife approximately three-quarters of the equity in
the marital residence, and in treating what he argues was a
loan to his sister-in-law as a gift. Wife cross-appeals,
contending that the trial court erred in giving husband
half of certain refunded escrow funds. On husband’s appeal,
we affirm in part and reverse in part. On wife’s
cross-appeal, we affirm without discussion.

On de novo review, ORS 19.415, we find the following facts.
Husband and wife were married in Rwanda in 1981. They have
four children ranging in age at the time of dissolution
from 17 to 22. Husband earns $3,650 per month and wife
earns $4,200 per month. For most of the marriage, the
parties put all of their income into a joint account and
paid all family expenses from that account. In 1999,
however, wife opened her own separate account into which
she deposited her paychecks. At around the same time,
husband obtained several credit cards in his own name.

During their marriage, the parties gave money to Rwandan
refugees, both family members and others. These donations
were gifts; neither party expected repayment. They also
provided wife’s sister, a resident of the United States,
with $7,500 to help pay her tuition and expenses while
attending nursing school. Husband testified that the money
was a loan that he expected his sister-in-law to repay;
wife characterized it as a gift.

In 2001, husband and wife jointly purchased a home for the
family to live in. Husband paid half of the $15,000 down
payment from the parties’ joint account, and wife paid the
other half from her separate account. Thereafter, until the
parties separated, they split the mortgage payments evenly.

A few years later, when the parties applied to refinance
the home, wife discovered that husband had accumulated over
$30,000 in credit card debt. Partly for that reason, the
parties separated. By the time of dissolution, the debt had
grown to $37,000. The parties agree that the
post-separation debt is husband’s responsibility, but they
disagree about the preseparation debt. Wife argues that it,
too, is husband’s responsibility, while husband insists
that he made the expenditures underlying the debt for such
family purposes as groceries, auto repairs, gasoline,
utilities, and medical expenses.

As noted above, the trial court found that husband was
responsible for two-thirds of the preseparation credit card
debt, that wife was entitled to approximately
three-quarters of the equity in the home, and that the
money sent to wife’s sister was a gift. Husband assigns
error to all three of those decisions.

We begin with the credit card debt. Like marital assets,
marital debt is presumptively evenly divided, Shlitter and
Shlitter, 188 Or App 277, 283, 71 P3d 154 (2003), with the
ultimate division guided by consideration of what is just
and proper, ORS 107.105(1)(f). Equitable division is not
necessarily equal division. See Richardson and Richardson,
307 Or 370, 379-82, 769 P2d 179 (1989) (stating principle
with respect to marital assets). Each case depends on its
particular facts. Johnson v. Johnson, 245 Or 10, 15, 419
P2d 28 (1966). In the present case, wife initially
testified that she, and not husband, was responsible for
all family-related expenses. On cross-examination, however,
when confronted with husband’s check register and credit
card receipts showing expenditures at grocery stores, auto
repair shops, gas stations, mortgage companies, and other
providers of goods and services obviously related to family
needs, she conceded that husband paid for at least some of
the family expenses, and that payment came either from
credit cards or from checks drawn on an account into which
husband had deposited credit card cash advances.

The trial court decided to “give [husband] a third credit
for family benefit on his credit card expenses, because
with what [evidence] I had that’s the best I can do.”
Although our review is de novo, we generally defer to a
trial court’s credibility judgments insofar as they are
based on demeanor; our deference is less when credibility
is based on such objective criteria as internal consistency
and other objective evidence. Moore and Moore, 146 Or App
661, 671, 934 P2d 572 (1997). Here, the only evidence
supporting wife’s version of the facts is her initial
assertion. Her subsequent partial retraction undercuts the
credibility of that assertion. Husband, on the other hand,
presented hard evidence in support of his version. We
therefore conclude that the court erred in finding that
husband’s credit card debt was disproportionately due to
non-family-related expenses. Further, because wife earns
more than husband, we are not convinced that an uneven
distribution of responsibility is just and proper in the
circumstances. On remand, the trial court should evenly
distribute responsibility for the preseparation debt on
husband’s credit cards.

We also agree with husband that the trial court erred in
giving wife approximately three-quarters of the equity in
the family home. The trial court based that decision on the
fact that wife used money from her own separate account for
the down payment and husband used money from a joint
account. Although those facts are uncontested, the money
from wife’s account is a marital asset, because it was
acquired during the marriage. ORS 107.105(1)(f); see also
Kunze and Kunze, 337 Or 122, 133, 92 P3d 100 (2004). We
therefore presume that both spouses contributed equally to
the acquisition. ORS 107.105(1)(f); Kunze, 337 Or at 134.
Wife can rebut that presumption by showing by a
preponderance of the evidence that husband’s efforts during
the marriage did not contribute equally to the acquisition
through either economic or noneconomic efforts. Id.
Further, even if wife can overcome the presumption of equal
contribution, we must still consider what is just and proper
in the circumstances. Id. at 135.

The dispositive fact in the present case is that even if
wife were able to demonstrate that she acquired the funds
with no direct or indirect help from husband, the funds
were nevertheless commingled into an asset of the
marriage — the family home. Once commingled into the
family home, her original contribution was not traceable as
part of the home’s current value. Id. at 137-39
(untraceable commingling of separately held asset into
family finances may nullify spouse’s attempt to overcome
presumption of equal contribution). Additionally, even if
we could conclude that wife overcame the presumption
despite the untraceable commingling, we would nonetheless
conclude that, because her contribution was used to
purchase a home in which the family would live and raise
their children and nothing in the record indicates that she
intended to keep her contribution separate, it is just and
proper to evenly divide it. Seefeld and Seefeld, 294 Or
345, 657 P2d 201 (1982); see also Kunze, 337 Or at 142;
Lind and Lind, 207 Or App 56, 67-68, 139 P3d 1032 (2006).
We therefore conclude that the trial court erred in
crediting wife with more than half of the equity in the
family home.

Finally, husband assigns error to the trial court’s
decision to classify as a nonasset the $7,500 that he and
wife gave wife’s sister, and therefore to exclude it from
the property to be divided. Husband argues that the money
was a loan and that it will be repaid. Wife asserts that
the money was a gift, similar to the assistance that
husband and wife provided to other Rwandan refugees. The
trial court accepted wife’s explanation of the money. On de
novo review, we generally decline to “second-guess a trial
court’s characterization — either as loans or
gifts — of advances made to spouses by other family
members.” Shlitter, 188 Or App at 285. We see no reason to
avoid applying the same reasoning to advances made from
spouses to other family members. Additionally, the record
plainly supports the trial court’s determination. Husband
conceded at trial that financial support of Rwandan
refugees — family and nonfamily, abroad or in the
United States — was part of the family’s culture.There
is no evidence to support husband’s contention that the
money was a loan. The trial court did not err in its
characterization.

Property division reversed and remanded with instructions
to divide property in accordance with this opinion;
otherwise affirmed.