Categories: Oregon Court of Appeals Opinions

NEELY v. NEELY, 95 Or. App. 403 (1989)

768 P.2d 947

NEELY, Appellant, v. NEELY, Respondent.

DM86-10-139; CA A45883Oregon Court of Appeals.Argued and submitted January 18, 1989
Affirmed as modified February 22, 1989

Appeal from the Circuit Court, Curry County, Richard K. Mickelson, Judge pro tempore.

Katherine M. Blaser, Eugene, argued the cause and filed the brief for appellant.

Patrick R. Foley, Brookings, argued the cause and filed the brief for respondent.

Before Graber, Presiding Judge, and Riggs and Edmonds, Judges.

PER CURIAM

Judgment modified to award plaintiff a judgment for $885; affirmed as modified.

Page 404

PER CURIAM

Plaintiff appeals from a judgment adjudicating the interests of the parties in their domestic partnership. We review de novo and agree with the trial court’s conclusion that the parties intended an equal distribution and with its valuation of their assets and liabilities. See Beal and Beal, 282 Or. 115, 122-123, 577 P.2d 507 (1978).

However, the trial judge did not make an equal distribution because he was annoyed by plaintiff’s unsuccessful effort to prove that the business had a large net worth due to unreported income.[1] We believe that reasoning is inappropriate. Otherwise, litigants’ rights to advance their theories of recovery would be chilled by the threat of a disproportionate award if they are unsuccessful.

Judgment modified to award plaintiff a judgment for $885; affirmed as modified.

[1] In his letter opinion, the trial judge stated:

“I am not ordering an equalization judgment to balance out this domestic association. This case has dragged on for nine months. Petitioner has continually insisted that the business has a large net worth because of unreported income. None was ever discovered nor was any evidence introduced from which to draw this inference.”

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