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 1977-12

In Re the Dissolution of the Marriage of Derby , 31 Or. App. 1333 ( 1977 )


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  • 572 P.2d 1080 (1977)
    31 Or.App. 1333

    In the matter of the Dissolution of the MARRIAGE OF Danny J. DERBY, Respondent, and
    Shirley L. Derby, Appellant.

    Court of Appeals of Oregon, In Banc.[*]

    December 27, 1977.

    Robert P. VanNatta, St. Helens, filed respondent's petition for reconsideration. With him on the petition was VanNatta & Petersen, St. Helens.

    JOHNSON, Judge.

    The husband has moved for reconsideration of our decision modifying the trial court's decree of dissolution by awarding custody of the children to the wife and awarding child and spousal support. Derby and Derby, 31 Or. App. 803, 571 P.2d 562 (decided November 21, 1977). The wife petitions for attorney fees.

    The husband's contention concerning the award of spousal support warrants consideration. In his petition for reconsideration the husband states that his net income is approximately $800 per month. This is inconsistent with his answer to the mother's motion for attorney fees which states: "Page three of the wife's brief sets forth the parties income and their property." The brief states that the husband's gross income in 1975 was $15,900 and in 1976 was "$13,000 plus," but that in 1976 he was off work for three months because of a strike. The wife's gross income was $550 per month. As we stated in our original opinion, the purpose of the award of spousal support of $100 per month for two years was to compensate for the fact that the trial court's division of the property gave the husband the larger share. In making this adjustment we did not adequately account for the encumbrance against the automobiles. We conclude that the division was not overly disproportionate, although the husband received approximately $1,300 more than the wife assets. Accordingly, the provision for spousal support is deleted.

    The motion for reconsideration is otherwise denied.

    We award the wife attorney fees in the amount of $1,500 together with costs.

    NOTES

    [*] Judges Richardson and Gillette did not participate.