In re the Dissolution of the Marriage of Duvall , 26 Or. App. 99 ( 1976 )

SCHWAB, C. J.,

dissenting.

The trial judge gave the former wife the unfettered election as to whether to receive $100 per month for a period of three years in the form of child support or as support for herself. If paid as child support it is not deductible for income tax purposes by the payor and not considered income to the payee for income tax purposes. If paid as spouse support the opposite is true.

A judgment affecting a substantial right of a party to litigation must be made by the trier of fact, not by an adversary party. I agree with the majority that a trial court has broad discretion in reaching a decision —but not to the extent of subcontracting that authority to one of the litigants.

Since we review de novo I would modify the decree to provide that the $100 per month in question be categorized as spouse support.

For the foregoing reason I respectfully dissent.