S057887, Opinion — Harris and Harris

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Argued and submitted May 13, decision of Court of Appeals modified in part and,
as modified, affirmed; judgment of circuit court modified in part and,
as modified, affirmed, and case remanded to circuit court for further
proceedings December 16, 2010

In the Matter of the Marriage of
Jackie L. HARRIS,
Petitioner on Review,
and
Lane S. HARRIS,
Respondent on Review.
(CC 0630166; CA A136179; SC S057887)
244 P3d 801

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En Banc

On review from the Court of Appeals .*

J. Michael Alexander, Swanson, Lathen, Alexander &
McCann, PC, Salem, argued the cause and filed the brief for
petitioner on review.

Gilbert Feibleman, Feibleman & Case, PC, Salem, argued
the cause and filed the briefs for respondent on review.

DE MUNIZ, C. J.

The decision of the Court of Appeals is modified in part
and, as modified, affirmed. The judgment of the circuit court
is modified in part and, as modified, affirmed, and the case is
remanded to the circuit court for further proceedings.

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# DE MUNIZ, C. J.

The issue in this dissolution of marriage case is
whether the trial court erred in failing to award compensa-
tory spousal support to wife. The trial court did not award
compensatory support to wife, concluding that wife's contri-
bution during the marriage was not a significant contribution
that enhanced husband's earning potential. On appeal, the
Court of Appeals held that the trial court's rationale for deny-
ing compensatory spousal support to wife-viz., that wife's
contribution during the marriage was typical and expected
and not a substantial contribution that enhanced husband's
earning potential-was wrong. Nevertheless, the Court of
Appeals affirmed the trial court's decision, reasoning that an
award of compensatory support would not be "just and equi-
table" under all the circumstances. We allowed review to
address the proper standard for an award of compensatory
spousal support under the marital dissolution statutes. We
conclude that the Court of Appeals correctly determined that
wife's contribution to the marriage constituted a significant
contribution to the education, training, vocational skills,
career, or earning capacity of husband so as to trigger consid-
eration whether wife should receive an award of compensa-
tory spousal support. However, the Court of Appeals failed to
adequately consider all of the applicable factors set out in
ORS 107.105(1)(d)(B) for determining the propriety of an
award of compensatory spousal support. Applying the perti-
nent statutory factors to the undisputed facts in this case, we
conclude that it is "just and equitable in all the circum-
stances" to award wife $2,000 per month in compensatory
spousal support for a period of 10 years.

## I. FACTUAL AND PROCEDURAL BACKGROUND

The Court of Appeals reviewed the facts in this case
de novo. ORS 19.415(3) (2007).1 Pursuant to ORS 19.415(4),
this court also may review the facts de novo, or it may limit its
review to questions of law. See Kunze and Kunze, 337 Or 122,
124, 92 P3d 100 (2004) (so noting). Here, the facts relevant to

1 As the Court of Appeals noted, the 2009 amendments to ORS 19.415(3) do not
apply to this case, because the notice of appeal was filed in 2007. Or Laws 2009,
ch 231, § 3.

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resolving the issues before the court are not in dispute.
Instead, we must determine the legal significance of those
facts. Consequently, there is no need for this court to review
the facts de novo, and we set out here the statement of facts
from the Court of Appeals opinion.2

"Wife and husband were married in March 1990. At that
time, husband was a full-time college student, while wife
worked full time for the State of Oregon and attended col-
lege classes part time. In 1992, husband completed his
undergraduate degree and began dental school. Wife con-
tinued to work full time and to attend classes 'sporadically,'
but stopped attending classes in 1993 after the parties' first
child was born. Thereafter, the parties shared childcare and
household responsibilities, with wife assuming the larger
portion. Wife's job provided the family with financial sup-
port and health insurance. Husband also contributed to the
family finances during dental school by way of student
loans, money earned working occasionally in his father's
dental office and at a few odd jobs, and, during one year,
monthly $1,000 workers' compensation payments.

"In 1996, husband graduated from dental school and
joined his father's dental practice. He immediately began to
earn more than $100,000 annually and became the family's
primary wage-earner. After the parties' second child was
born in 1997, wife left her employment and assumed pri-
mary childcare and household responsibilities.

"In 1998, husband's father sold husband an interest in
his practice at a substantially below-market price. There-
after, husband's earned income increased dramatically,
averaging slightly more than $355,000 per year from 2002
to 2005 and more than $407,000 in 2006, in addition to
rental income in each of those years averaging $23,000.
Among other things, husband's financial success enabled
the parties to build a four-bedroom, 3,252 square foot home
on 1.21 acres; lease luxury vehicles; purchase a high-speed
motorboat and a time-share in Mexico; take several family
vacations each year; and join a country club.

2 Both parties to this proceeding expressly acknowledge that the facts set forth
in the Court of Appeals opinion are accurate and adequate to resolve the issues on
review. In their briefing in this court, both parties emphasize those facts that sup-
port their position on the issues presented. We set out the entire statement of facts
from the Court of Appeals decision in order to provide the most complete back-
ground for the discussion that follows.

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"Sometime in 1999, wife began to work in husband's
business approximately 10 hours each week planning office
parties, making bank deposits, paying bills, completing
data entry, mailing letters, and running errands. She con-
tinued to do so until the parties separated in February
2006, after approximately 16 years of marriage.

"At the time of trial in April 2007, husband was 37 years
old, and wife was 38 years old. Both parties were in good
health. Wife testified that she intended to complete her
undergraduate degree and to pursue a graduate degree in
business, but that, even if she did not, she could earn
between $30,000 and $40,000 per year as a state employee,
at a job for which she is already qualified. The trial court
awarded wife custody of the parties' children and divided
the real and personal property equally; each party received
assets valued at $720,402. The court further ordered that
husband pay wife $1,087 per month in child support; $3,000
per month in transitional spousal support for four years;
and $4,000 per month in maintenance spousal support for
six years, stepped down to $2,500 per month for two years
followed by $1,000 per month for one year."

Harris and Harris, 230 Or App 679, 681-82, 217 P3d 224
(2009).

As identified above, the issue in this case is whether
wife is entitled to an award of compensatory spousal support
and, if so, for how long.3 The trial court made the following
findings regarding compensatory support:

"18. Both parties have contributed to the accumula-
tion of assets during the marriage. Wife primarily in the
early years while she was working and Husband was going
to school. Although, Husband also contributed to the family
at that time, as well. Husband substantially contributed
after his dental practice became established. The contribu-
tions by both Husband and Wife to this marriage has [sic]
resulted in over $1,000,000 in net assets that the parties
are dividing. The parties agreed that Husband would be

3 In the Court of Appeals, husband also challenged the trial court's determi-
nation of the level and duration of maintenance spousal support. The Court of
Appeals affirmed the trial court's ruling without discussion, and husband does not
renew his challenge to that determination in this court. Consequently, we do not
address the propriety of the maintenance spousal support award, but rather con-
sider it appropriate for purposes of our consideration of the compensatory support
issue presented in this case.

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going to dental school, and that Wife would be primarily
taking care of the children when they decided to have chil-
dren, and they both have benefitted from that agreement,
and they are now in the process of dividing up the assets
from those agreements.

"19. As to the issue of compensatory spousal support,
the court does not mean to minimize Wife's contributions
however Wife's contribution was a typical contribution for a
spouse at the age and place in their lives where the parties
were when they got married, and Wife's contribution dur-
ing the marriage was also a typical and expected contribu-
tion. Wife's contributions were not a substantial contribu-
tion that enhanced Husband's earning potential or will
enhance his earning potential in the future. Compensatory
spousal support is not appropriate."

The Court of Appeals affirmed the trial court's ruling
on that issue, but on grounds different from those relied on by
the trial court. Before addressing the parties' arguments and
the rulings made by the courts below, we first set out the stat-
utory framework for spousal support awards in Oregon. We
do so because it is the overall statutory framework that
informs the analysis that should govern the specific statutory
provisions addressed to compensatory support. See PGE v.
Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d
1143 (1993) (context of statutory terms including other pro-
visions or related statutes is relevant consideration at first-
level text and context step of statutory interpretation
methodology).

## II. STATUTORY FRAMEWORK FOR SPOUSAL SUPPORT

At the outset, we observe that compensatory spousal
support is one of the three categories of spousal support set
out in ORS 107.105(1).4 Those three categories of spousal

4 ORS 107.105(1) provides, in part:

"Whenever the court renders a judgment of marital annulment, dissolu-
tion or separation, the court may provide in the judgment:

"(d) For spousal support, an amount of money for a period of time as may
be just and equitable for one party to contribute to the other, in gross or in
installments or both. The court may approve an agreement for the entry of an
order for the support of a party. In making the spousal support order, the court
shall designate one or more categories of spousal support and shall make find-
ings of the relevant factors in the decision. The court may order:

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support, although interrelated, serve different functions.
Transitional spousal support provides support "as needed for

"(A) Transitional spousal support as needed for a party to attain educa-
tion and training necessary to allow the party to prepare for reentry into the
job market or for advancement therein. The factors to be considered by the
court in awarding transitional spousal support include but are not limited to:

“(i)
The duration of the marriage;

"(ii) A party's training and employment skills;

"(iii) A party's work experience;

"(iv) The financial needs and resources of each party;

“(v)
The tax consequences to each party;

"(vi) A party's custodial and child support responsibilities; and

"(vii) Any other factors the court deems just and equitable.

"(B) Compensatory spousal support when there has been a significant
financial or other contribution by one party to the education, training, voca-
tional skills, career or earning capacity of the other party and when an order
for compensatory spousal support is otherwise just and equitable in all of the
circumstances. The factors to be considered by the court in awarding compen-
satory spousal support include but are not limited to:

"(i) The amount, duration and nature of the contribution;

‘(ii) The duration of the marriage;

"(iii) The relative earning capacity of the parties;

"(iv) The extent to which the marital estate has already benefited from
the contribution;

"(v) The tax consequences to each party; and

"(vi) Any other factors the court deems just and equitable.

"(C) Spousal maintenance as a contribution by one spouse to the support
of the other for either a specified or an indefinite period. The factors to be con-
sidered by the court in awarding spousal maintenance include but are not lim-
ited to:

"(i) The duration of the marriage;

"(ii) The age of the parties;

"(iii) The health of the parties, including their physical, mental and emo-
tional condition;

"(iv) The standard of living established during the marriage;

"(v) The relative income and earning capacity of the parties, recognizing
that the wage earner's continuing income may be a basis for support distinct
from the income that the supported spouse may receive from the distribution of
marital property;

"(vi) A party's training and employment skills;

"(vii) A party's work experience;

"(viii) The financial needs and resources of each party;

"(ix) The tax consequences to each party;

"(x) A party's custodial and child support responsibilities; and

"(xi) Any other factors the court deems just and equitable."

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a party to attain education and training necessary to allow
the party to prepare for reentry into the job market or for
advancement therein." ORS 107.105(1)(d)(A). Spousal main-
tenance is "a contribution by one spouse to the support of the
other for either a specified or an indefinite period." ORS
107.105(1)(d)(C). Compensatory spousal support provides
compensation to one of the parties to the marriage "when
there has been a significant financial or other contribution by
[that] party to the education, training, vocational skills,
career or earning capacity of the other party and when an
order for compensatory support is otherwise just and equita-
ble in all of the circumstances * * *. " ORS 107.105(1)(d)(B).
That statutory subsection then goes on to reiterate that the
court should consider a number of factors in awarding com-
pensatory support, including "[a]ny other factors the court
deems just and equitable." ORS 107.105(1)(d)(B)(vi).

Significantly, the legislature went to substantial
lengths to set out a number of criteria for consideration under
each of the categories of spousal support. As the Court of
Appeals noted in Austin and Austin, 191 Or App 307, 317, 82
P3d 170 (2003):

"Under [ORS 107.105(1)(d)], courts are to designate one or
more 'categories' of spousal support and are to make find-
ings regarding the relevant factors. Id. Those categories of
support are 'transitional,' 'compensatory,' and 'mainte-
nance.' ORS 107.105(1)(d)(A), (B), (C). Each subparagraph
pertains to a different type of spousal support and sets out a
nonexclusive list of factors that a court is to consider in
awarding that type of support. The final factor in each of
the three lists is [a]ny other factors the court deems just
and equitable.' ORS 107.105(1)(d)(A)(vii), (B)(vi), (C)(xi).
Nonetheless, that each of the three lists expressly includes
particular factors indicates that the legislature considered
those factors to be particularly relevant in awarding that
type of spousal support."

Although there is some overlap with respect to some of the
statutory factors that apply to more than one of the spousal
support categories (e.g., the duration of the marriage is a fac-
tor listed for evaluation under all three of the spousal support
categories), each of the factors merits explicit consideration
under each of the types of spousal support.

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With that general discussion of the statutory frame-
work as backdrop, we turn to the specific legal issues
involved in this proceeding. Those issues are: Were wife's
contributions to husband's education, training, vocational
skills, career, or earning capacity significant enough to trig-
ger consideration of an award of compensatory spousal sup-
port? If so, what amount of compensatory spousal support, if
any, should wife be awarded based on the applicable statu-
tory factors and for how long?

## III. SIGNIFICANCE OF WIFE'S CONTRIBUTION

ORS 107.105(1)(d)(B) provides for an award of com-
pensatory spousal support when "there has been a significant
financial or other contribution by one party to the education,
training, vocational skills, career or earning capacity of the
other party * **. " The parties view the statutory require-
ment that a contribution be "significant" through different
lenses.

Wife contends that the compensatory spousal sup-
port provisions essentially incorporate much of what was for-
merly found in the enhanced earning capacity statute, former
ORS 107.105(1)(f) (1993). Wife notes that the archetypal
example of a spouse who qualified for a property distribution
award under the enhanced earning capacity statute was the
wife who supported the husband in medical school by work-
ing and keeping the home. Wife argues that she would have
qualified for a property distribution based on her contribu-
tions to husband's enhanced earning capacity under the for-
mer statute, and that she should, therefore, qualify for an
award of compensatory spousal support under the current
statute, based on her contributions to husband's education,
career, and earning capacity.

Husband contends that, for wife's contributions to be
"significant" under the compensatory spousal support stat-
ute, those contributions must be significant in some aspect
that is separate and apart from contributions that are typical
of a healthy marital relationship. Husband asserts that the
statutory term "significant" connotes proof of something
uncommon or special. Husband argues that "[t]he Oregon
legislature did not enact a statute that allows for an award of
compensatory support if there has been some contribution,

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any contribution or a normal or typical contribution. The pre-
condition to the consideration of such an award is the pres-
ence of a significant contribution." Husband further asserts
that both maintenance support under ORS 107.105(1)(d)(C)
and transitional support under ORS 107.105(1)(d)(A) take
into account the normal and typical contributions of one
spouse to the other by requiring consideration of factors such
as the duration of the marriage in determining the appropri-
ate level of those types of support.

We reject husband's arguments. Although it is true
that the compensatory spousal support statute provides that
contributions from one spouse to another must be significant,
as husband himself notes, "significant" is defined essentially
as "having meaning." Webster's Third New Int'l Dictionary
2116 (unabridged ed 2002) defines "significant" in pertinent
part as:

"1: having meaning; esp: full of import : SUGGES-
TIVE, EXPRESSIVE the painter's task to pick out the ~
details-Herbert Read ~~ anecdote>

"3a: having or likely to have influence or effect :
deserving to be considered : IMPORTANT, WEIGHTY,
NOTABLE even though the individual results may seem
small, the total of them is ~ - F. D. Roosevelt>

Thus, it appears at the first step in the interpretive process
that, as long as the contributions of one spouse to the other
are meaningful and are likely to have influence and effect,
they come within the definitional scope of the statutory term
"significant."

Furthermore, as this court announced in State v.
Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), the legis-
lative history of a statute is also relevant in analyzing the
scope of the statute and discerning legislative intent. Thus,
the context of a statutory provision, including its prior ver-
sions, is helpful in determining its reach. Consequently, we
turn to those inquiries.

Oregon spousal support statutes have long taken
into account the contribution of one spouse to the education
and training of the other spouse. The 1983 version of the

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spousal support statutes provided that the contribution
made by one spouse to the education, training, and earning
capacity of the other spouse was an enumerated factor that
the court should consider in awarding spousal support. Or
Laws 1983, ch 728, § 2. In 1993, the legislature amended the
spousal support statutes, retaining the provisions requiring
consideration of the contribution of one spouse to the educa-
tion, training, and earning capacity of the other spouse. The
1993 legislature, however, also added an "enhanced earning
capacity" provision for the division of marital property,
inserting the following terms into ORS 107.105(1):

"(f) *** The present value of, and income resulting
from, the future enhanced earning capacity of either party
shall be considered as property. The presumption of equal
contribution to the acquisition of marital property, how-
ever, shall not apply to enhanced earning capacity. A
spouse asserting an interest in the income resulting from
an enhancement of earning capacity of the other spouse
must demonstrate that the spouse made a material contri-
bution to the enhancement. Material contribution can be
shown by, among other things, having contributed, finan-
cially or otherwise, to the education and training that
resulted in the enhanced earning capacity. The contribu-
tion shall have been substantial and of prolonged duration."

Or Laws 1993, ch 315, § 1.

In Denton and Denton, 326 Or 236, 951 P2d 693
(1998), this court addressed the provisions of former ORS
107.105(1)(f) (1993). The court first parsed the statute, noting
that "[u]nder ORS 107.105(1)(f), those contributions that are
'material' 'to the education and training' that produce the
enhancement, that are 'substantial,' and that are of 'pro-
longed duration' will justify an award for enhanced earning
capacity." Id. at 243. The court then discussed the contribu-
tions that wife made to her husband's acquisition of his med-
ical license and specialty:

"During the period when husband was attempting to gain
admission to medical school, and while husband was in
medical school, wife worked full time, putting food on the
family's table and a roof over their heads. Moreover, wife
performed all domestic tasks during the entire period in
which husband prepared himself for medical school,

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attended medical school, and performed his dermatology
residency in Iowa. That freed husband to devote all his
energy and concentration to his studies, which directly
facilitated his acquisition of the medical degree as well as
his dermatology specialty.

"Wife also contributed directly to husband's educational
expenses during medical school. The bulk of the financial
aid that husband received during his attendance at OHSU
was in the form of student loans that were later repaid with
marital assets out of husband's salary after he graduated.
However, those loans were lower than otherwise would
have been the case, because wife supplied the income that
kept the couple from having to borrow to pay living
expenses while husband attended school. Additionally,
\* \* \* [wife's] continuing willingness to uproot, to relocate,
and to find new employment constituted nonfinancial con-
tributions to the enhancement."

Id. at 243-44. In Denton, this court concluded that those con-
tributions, "when considered together, as they must be, were
both material and substantial." Id. (emphasis in original).

Although Denton addressed a former version of the
spousal support statutes and not the version of those statutes
at issue in this case, this court's decision in Denton is relevant
and significant here for at least two reasons. First, as wife
argues, the enhanced earning capacity statutory terms at
issue in Denton imposed at least as stringent requirements
as the statute at issue here before the contributions of one
spouse to the other would be considered sufficient to justify
an award. Although the award in Denton was in the form of
property distribution rather than a spousal support award,
that distinction does not make the court's analysis of similar
statutory terms inapplicable. Consequently, this court's deci-
sion in Denton is relevant in a logic and analytic sense. Sec-
ond, this court's decision in Denton is significant in light of
the subsequent amendments the legislature made to the
spousal support statutes, in that the legislature did not
increase the contribution requirement by one spouse to the
other in response to the Denton decision.

In 1999, the legislature revised the spousal support
statutes and amended ORS 107.105 to its present form.5 Or

" There were some minor changes to ORS 107.105 in 2001 and 2003, but they
do not affect the reach of the statute in any significant way for purposes of the
analysis in this case. See Or Laws 2003, ch 576, § 109; Or Laws 2001, ch 873, § 5.

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Laws 1999, ch 587, § 1. Those amendments repealed the
enhanced earning capacity statute (ORS 107.105(1)(f)) and
migrated some of the elements from the repealed enhanced
earning capacity statute and the former spousal support pro-
visions addressing compensatory-type awards into the new
compensatory spousal support provision. The Court of
Appeals has described the effect of those 1999 amendments
as broadening the criteria for which a spouse could receive
compensatory spousal support. In Austin, the Court of
Appeals noted that in adopting the 1999 amendments, the
legislature incorporated three types of contributions from the
former statutes-i.e., contributions to education, training,
and earning power/capacity-and added two more-i.e., con-
tributions to vocational skills and career. 191 Or App at 318.
The Court of Appeals also noted that "[t]he focus of ORS
107.105(1)(d)(B) [the compensatory spousal support provi-
sion] is more broadly directed toward assessing whether one
spouse is entitled to compensation for certain contributions
made to the other, a focus that is indicated by the legisla-
ture's choice of name for this type of spousal support: com-
pensatory." Id. Finally, the Court of Appeals deemed it sig-
nificant that the new statutory provision connected those five
criteria with the disjunctive connector "or," which sets out
each of the types of contribution as separate, independent
factors, not all of which need be connected to increased earn-
ing capacity. Id. at 319.

We agree. As a linguistic matter, the new compensa-
tory spousal support provision has broadened the kinds of
contributions that can be considered beyond those numer-
ated under the former enhanced earning capacity statute.
They also no longer require that the contributions all must be
connected to enhanced earning capacity. We thus conclude
that the legislature did not intend the 1999 amendments to
establish a higher threshold for an award of compensatory
spousal support than previously existed for property distri-
butions under the former enhanced earning capacity statute.

The legislative history of the compensatory spousal
support provision also supports our conclusion. For example,
the Staff Measure Summary before the Senate Judiciary
Committee described the 1999 amendments, including the
provisions that became ORS 107.105(1)(d)(B), as follows:

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"In a suit for dissolution, the court has the power to
make an award to either spouse for spousal support and an
appropriate division of the marital property. In determin-
ing the amount and duration of spousal support to award,
ORS 107.105 requires that the court consider an enumer-
ated list of criteria. This bill reorganizes that list into three
separate types of spousal support (transitional, compensa-
tory and maintenance). Persons seeking spousal support
would now have to argue that they fit into one of these cat-
egories before a court would award support. It should be
noted that each of the categories contains criteria similar to
that currently existing in the statute.

"ORS 107.105 also grants the court authority to award
property to either spouse as is 'just and proper' under the
circumstances. An item of property that may be valued is the
'enhanced earning capacity' of either party. The court may
make such an award to a spouse if the spouse shows that
they made a 'material contribution' to the enhanced earn-
ing capacity of the other spouse. A 'material contribution'
can be a contribution to the education or training of the
spouse who, as a result, enjoys a greater earning potential.
The classic example is the wife who supports the husband in
medical school by working and keeping the home. If upon
completion of his medical training, the husband divorces
the wife, she may make a claim that she materially contrib-
uted to his anticipated future higher earnings as a physi-
cian. This bill will eliminate enhanced earning capacity as
species of property. The bill, however, retains the concept of
enhanced earning capacity within spousal support."

Staff Measure Summary, Senate Judiciary Committee, HB
2555, May 27, 1999 (emphases added).

The written testimony submitted before the House
Civil Judiciary Committee by one of the chief proponents of
the bill, Russell Lipetzky, also demonstrates that the bill was
not intended to heighten the contribution required from
spouses in order to qualify for support awards. In his written
testimony on HB 2555, Lipetzky characterized the legislative
proposal as follows:

"The enhanced earning capacity ('EEC') statute is found
tucked into ORS 107.105(1)(f), which is a lengthy statute
that provides the court with the general authority to divide
property in a divorce. Since its inception, the EEC statute

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has been a continuing source of confusion and frustration
for divorcing couples, family law attorneys, and the courts.
That confusion stems mostly from the requirement of the
statute that an intangible future economic benefit-a
party's future enhanced earning capacity-be translated
(somehow) into a present day dollar value and divided
(somehow) by the court in a divorce proceeding.

***** *

"In allowing a party's enhanced earning to be character-
ized as spousal support, the drafters of this bill believe the
goals of the EEC statute can be fully met, and that those
goals can be met with much greater ease and understand-
ing by all participants in the legal process."

Testimony, House Judiciary Committee/Civil, HB 2555,
Feb 25, 1999, Ex C (statement of Russell Lipetzky).
Lipetzky's testimony explicitly referenced this court's deci-
sion in Denton and Denton, but took no issue with the deter-
mination by this court about the necessary level of contribu-
tion by a spouse for an award under the enhanced earning
capacity statute. Lipetzky stated: "Although the Oregon
Supreme Court has attempted to shed light on the statute in
Denton, 326 Or 236 (1998), that case left unanswered many
questions about the practical application of the EEC stat-
utes." Id.

Finally, another of the bill's drafters testified that
the compensatory support aspects of the bill were not
intended to create "any new ground," other than to treat the
matter as a support issue rather than a property division
issue. Tape Recording, House Judiciary Committee/Civil, HB
2555, Feb 25, 1999, Tape 48, Side A (statement of Ron
Gevurtz). We think that it is a fair characterization that the
1999 amendments were not intended to substantially
increase the burden on the contributing spouse to qualify for
support, but rather to reorganize the support statutes in a
manner that would promote greater ease in application.

The 1999 amendments continue to recognize the
contributions of one spouse to the enhanced earning capacity
of the other spouse, but they changed the manner of compen-
sation from the division of marital property to compensatory

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spousal support. In recharacterizing the means of compen-
sating a contributing spouse, however, the 1999 amendments
also had the effect of broadening the types of contributions by
one spouse that will qualify for an award of compensatory
spousal support. We conclude, therefore, that those amend-
ments did not establish a higher threshold for qualifying for
an award of compensatory support than previously existed
for property distributions under the former enhanced earn-
ing capacity statute. Having reached that conclusion, we
must now determine whether wife's contributions are "signif-
icant" as required under the compensatory support statute.

Husband characterizes wife's contributions as "typi-
cal" and "expected" household support activities in contrast
to the "significant" contributions that he contends the statute
requires. We disagree. The undisputed facts in this case show
that wife contributed to husband's "education, training, voca-
tional skills, career, or earning capacity" by working full time
while husband attended both undergraduate and dental
school. Wife's work provided the family with financial sup-
port and health insurance. Once husband established his
dental practice, wife assumed primary homemaking and
childcare responsibilities. Wife also worked part time in hus-
band's dental practice for a period of seven years. We con-
clude that wife's contributions were "significant contribu-
tions" to husband's education and career sufficient to trigger
consideration of a compensatory spousal support award
under the relevant statutory criteria. Cf. Denton, 326 Or at
243-45 (analyzing contributions under former enhanced
earning capacity statute). We now turn to consideration of
the statutory criteria relevant to a determination of an
appropriate compensatory spousal support award.

# IV. STATUTORY FACTORS FOR DETERMINING COMPENSATORY SPOUSAL SUPPORT AWARDS

ORS 107.105(1)(d)(B) provides, in part:

"The factors to be considered by the court in awarding com-
pensatory spousal support include but are not limited to:

"(i) The amount, duration and nature of the
contribution;

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"(ii) The duration of the marriage;

"(iii) The relative earning capacity of the parties;

"(iv) The extent to which the marital estate has
already benefited from the contribution;

"(v) The tax consequences to each party; and

"(vi) Any other factors the court deems just and
equitable."

In this case, the trial court did not analyze the stat-
utory criteria, because it determined that wife's contributions
to the marriage were not sufficiently significant to meet the
threshold requirement to trigger consideration of a compen-
satory spousal support award. For its part, the Court of
Appeals did reach the question whether an award of compen-
satory spousal support would be "just and equitable in all of
the circumstances." We note, however, that the Court of
Appeals' rather truncated analysis and application of the
statutory criteria in this case appears to have placed substan-
tial emphasis on the absolute dollar amounts included in the
marital estate, which led that court to conclude, erroneously
in our view, that no award of compensatory spousal support
should be made. Because we conclude that the Court of
Appeals erred in analyzing and applying the statutory crite-
ria for an award of compensatory spousal support, we set out
what we consider to be the proper application of the statutory
criteria to the facts presented here.

## A. Amount, duration, and nature of contribution

The first factor to address under the statute includes
the "amount, duration and nature of the contribution" of the
contributing spouse. To a substantial degree, those factors
mirror the kind of considerations that must be addressed in
making the initial determination whether the contributions
of the spouse are significant enough to warrant any award of
compensatory spousal support. As noted above, wife worked
full time from the beginning of the marriage in March 1990
through husband's graduation from dental school in 1996.
During that period of time, wife was the primary financial
provider for the family. Beginning in 1993, when their first
child was born, through February 2006, when they sepa-
rated, wife provided primary childcare and household

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responsibilities for husband and the family. Wife also worked
part time in husband's dental practice from 1999 through
their divorce in 2006.

Husband contends, however, that wife's contribu-
tions are not sufficient in amount, duration, and nature,
because husband's success derived from his father's largess
and husband's own unique personal skill in dentistry.
Although husband was allowed to buy into his father's
already successful dental practice on favorable terms and
some of husband's earning capacity in his dental practice
depends on his personal skill level, those circumstances do
not negate wife's entitlement to some award of compensatory
spousal support.

First, as we already have discussed, the 1999
amendments to the spousal support statutes broadened the
statutory provisions such that contributions of one spouse do
not need to contribute directly to the higher earning capacity
of the other spouse, as long as they contribute to the educa-
tion, training, vocational skills, career, or earning capacity of
the spouse. Consequently, contributions to the education and
training of a spouse can suffice. In this case, there is no ques-
tion but that wife's full-time work while husband attained his
undergraduate degree and his dental degree contributed sig-
nificantly to husband's education and training.

Furthermore, in our view, husband's argument
ignores wife's support of husband during the period when he
obtained his dental degree, which allowed him to enter into
what became a successful career. Without his dental degree,
husband would not have been able to join his father's dental
practice and would not have been able to put his personal
dentistry skills to work. Wife was instrumental in husband's
ability to obtain the dental degree that was the gateway to
his dental career. Consequently, we conclude that wife's con-
tributions are sufficient in amount, duration, and nature to
weigh in favor of an award of compensatory spousal support.

## B. Duration of marriage

Neither party presents us with any argument based
solely on the second statutory factor-duration of the mar-
riage. Although there may well be some circumstances where

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the duration of the marriage viewed in isolation is pivotal, we
do not perceive that this is such a case. Consequently, we do
not attempt to further analyze this factor in isolation, beyond
noting that the parties were married for approximately
16 years. See, e.g., Garza and Garza, 201 Or App 318, 328,
118 P3d 824 (2005) (in analyzing how criteria set out in ORS
107.105(1)(d)(B) apply, Court of Appeals noted only duration
of marriage without providing further elucidation).

Wife, however, contends that the "duration of the
marriage" and the "extent to which the marital estate has
already benefited from the contribution" are "two rather
interrelated factors that go to the basic purpose of compen-
satory support-to compensate a spouse for contributions to
another's education, training, etc., when the marriage is dis-
solved before the benefits of such labors are fully realized." As
a general matter, we agree with that basic description of the
interplay of these two statutory provisions, and we address
that interplay more fully below.

## C. Relative earning capacity of the parties

The third statutory factor addresses the earning
capacities of the parties to the marriage. Here, the relative
earning capacities of husband and wife contrast sharply.
Husband averaged more than $350,000 per year in income
from his dental practice from 2002 until the initiation of the
marital dissolution in 2006. Husband also received rental
income in each of those years averaging $23,000. Nothing in
the record suggests that husband's income will be reduced
substantially in the future. In contrast, wife's testimony
established that her earning capacity is approximately
$30,000 to $40,000 per year, based on her current training
and prior job experience. The contrast between the relative
earning capacities of husband and wife also weighs in favor of
an award of compensatory spousal support.

Husband, in fact, does not suggest that this statu-
tory factor does not support an award of compensatory spou-
sal support. Rather, husband focuses his argument on the
degree to which the marital estate has already benefited from
husband's income during the years of the marriage and
asserts that an award of compensatory spousal support
would not be "just and equitable." We note, however, that the

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spousal support statutes establish a particular connection
between compensatory spousal support and the earning
capacity of the spouse paying such support. ORS 107.135(3)
applies to proceedings to reconsider spousal support awards.
ORS 107.135(3)(a) provides:

"In a proceeding under this section to reconsider the
spousal or child support provisions of the judgment, the fol-
lowing provisions apply:

"(a) A substantial change in economic circumstances
of a party, which may include, but is not limited to, a sub-
stantial change in the cost of reasonable and necessary
expenses to either party, is sufficient for the court to recon-
sider its order of support, except that an order of compensa-
tory spousal support may only be modified upon a showing
of an involuntary, extraordinary and unanticipated change
in circumstances that reduces the earning capacity of the
paying spouse."

(Emphasis added.) In light of the legislatively recognized
relationship between earning capacity and compensatory
spousal support, we conclude that the substantial contrast in
earning capacities of husband and wife also weighs in favor of
an award of compensatory spousal support.

## D. Extent to which the marital estate has already benefited

The fourth factor set out in ORS 107.105(1)(d)(B)(iv)
is a legislative directive to consider the extent to which the
marital estate has already benefited from the contribution
made by the spouse seeking an award of compensatory spou-
sal support. Not surprisingly, the parties view this require-
ment from different perspectives.

Husband takes a pragmatic approach, emphasizing
the value of the assets amassed during the marriage. Hus-
band argues that wife should not be awarded any compensa-
tory spousal support, because the marital estate being shared
already contains substantial assets generated from hus-
band's income. Husband points out that the marital estate
includes the value of husband's dental practice (valued at
$671,000), that wife received more than $720,000 in assets
when the marital estate was divided, and that wife also
received the benefits of the lifestyle that the parties enjoyed
during the period of their marriage after husband began his

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dental practice. The Court of Appeals agreed with husband,
noting that wife's contributions were "offset by the accumu-
lation of nearly $1.5 million in marital assets and by the life-
style that the parties enjoyed during the 10 years preceding
their divorce." Harris, 230 Or App at 685.

Wife takes a more comparative approach, contending
that the extent to which the marital estate already has ben-
efited should be evaluated in terms of what the overall mari-
tal estate would be were the marriage to continue through
the greatest asset generating period. Wife contends that the
statute requires consideration of both the "duration of the
marriage" and "the extent to which the marital estate has
already benefitted from the contribution," and wife argues
that those two interrelated factors go to the basic purpose of
compensatory support, which she describes as "to compen-
sate a spouse for contributions to another's education, train-
ing, etc.[,] when the marriage is dissolved before the benefits
of such labors are fully realized." Wife asserts:

"If one looks particularly at the value of enhanced earn-
ing capacity, it is greatest immediately after it is achieved,
and then progressively diminishes until it is exhausted at
retirement. The 'extent to which the marital estate has ben-
efitted' must not focus solely on absolute dollars, but on
where the parties are on this diminishing continuum at the
time of divorce or separation. In this case the parties accu-
mulated substantial assets, principally from 2002 onward.
However, these few years are a small fraction of Husband's
remaining work life of 27 years if he works until 65, of 17 if
he retires at 55."

We agree with wife in the following respects. The
fact that a contributing spouse receives significant assets in
the disposition of a marital estate should not preclude an
award of compensatory spousal support in all circumstances.
And in determining the extent to which the marital estate
already has benefited, it is appropriate to consider the dura-
tion of the marriage in relation to the time period that the
marriage partners would reasonably expect to realize the
benefits of the marriage.

The statute requires consideration of the extent to
which the marital estate has already benefited from the con-
tribution. The statute does not call for an evaluation of the

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extent to which the marital estate has benefited from the con-
tribution, but rather calls for an evaluation of the extent the
marital estate has already benefited from the contribution.
The addition of the temporal term "already" connotes that
the extent of benefits already accrued should be compared to
the extent of benefits that will be accrued. We understand the
provision to mean that the relevant inquiry is how much the
marital estate has already realized the benefits of the
spouse's contributions compared to how much the marital
estate would ultimately realize as the benefits of those
contributions.

We do not agree with wife, however, to the extent
that she appears to contend that the appropriate benchmark
for compensatory spousal support is to provide the contrib-
uting spouse with an award that fully realizes all the benefits
that would be obtained were the marriage not dissolving.
Although it may be an overstatement to categorize the par-
ties' positions in absolute terms, we view husband's position
to be something akin to asserting that, if the parties have
accumulated substantial assets and enjoyed a luxurious life-
style during the marriage, then no compensatory support
should be granted. And we understand wife's position to be
that the contributing spouse should be awarded compensa-
tory spousal support in an amount that will fully realize all
the benefits that the spouse would have obtained had the
marriage lasted throughout the other spouse's entire earning
career. In our view, the correct answer lies somewhere in
between.

In this case, during the period after husband began
his dental practice until the marriage dissolved, the parties'
lifestyle included a large home, luxury cars, expensive vaca-
tions, and a country club membership. In addition, wife
received a substantial amount in the distribution of marital
assets-viz., assets valued at approximately $720,000. The
Court of Appeals concluded that wife's share of the marital
assets and her participation in the lifestyle that the parties
enjoyed during the 10 years preceding their dissolution offset
the contributions wife made to husband's education, train-
ing, and career. Although the amount of the marital assets
that wife received is significant, that focus is too limited. As

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wife notes, if she and husband had married after he com-
pleted his dental degree (and consequently she had not made
the contributions she did to help him through the years it
took for him to obtain his dental degree), wife would almost
certainly have received the same distribution of marital
assets as she received here. We agree. Viewed in that manner
and in light of husband's remaining 17- to 27-year highly pro-
ductive earning career, we conclude that the significant asset
distribution and comfortable lifestyle available to wife for the
10 years preceding the divorce does not offset completely the
contributions wife made to husband's education, career, and
enhanced earning capacity. Accordingly, in this case, the sig-
nificant asset distribution and financially comfortable life-
style available to her do not disqualify wife from an award of
compensatory spousal support.6

## E. Tax consequences to each party

ORS 107.105(1)(d)(B)(v) provides that the court
should consider the tax consequence to each party in award-
ing compensatory spousal support. The parties, however,
focus little of their attention on that statutory factor, and nei-
ther the trial court nor the Court of Appeals addressed it in
their respective decisions.

Wife contends that husband will continue to realize
substantially more income per month, even with a spousal
support obligation of $12,000 per month, due to the disparate
incomes of the parties, the marginal tax rates that would
apply to an award of spousal support to wife, and the tax
deductibility of such an award to husband. Wife also notes in
passing that the "actual cost" of the $3,000 per month com-
pensatory spousal support award she seeks "will be only
$1,740" due to husband's incremental tax rate. Wife does not
elaborate on those points other than to suggest that they sup-
port a determination that an award of compensatory spousal
support to wife would be just and equitable in light of all the
circumstances. We do not find anything in the record related
to the tax consequences to the parties in this case helpful or

" We also observe that, during that period of time, wife had primary childcare
and household responsibilities and wife engaged in part-time work in husband's
business operations.

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significant to determine whether an award of compensatory
spousal support is appropriate.

## F. Any other factors court deems just and equitable

Under ORS 107.105(1)(d)(B)(vi), the court may
address any other factors that the court deems just and equi-
table. As we have discussed previously, the directive to con-
sider the just and equitable nature of a compensatory spousal
support award is actually expressed three-fold in the spousal
support statutes.

The terms "just and equitable" permit the court to
exercise its equitable power in determining a proper award of
spousal support, including compensatory spousal support, in
light of all the circumstances. The overall statutory frame-
work, however, provides some over-arching principles that
bear on the court's exercise of its equitable power.

As discussed above, spousal support is divided into
three categories of support: transitional spousal support,
spousal maintenance, and compensatory spousal support.
Those categories of spousal support are interrelated, and
they also are cabined by the statutory directive to set the
total spousal support award at "an amount of money for a
period of time as may be just and equitable for one party to
contribute to the other." ORS 107.105(1)(d). Consequently,
we conclude that the amounts of spousal support awarded
under each of the spousal support categories are relevant
considerations in determining the overall just and equitable
amount of spousal support to award.

As we explained above, however, each of the three
categories of spousal support serves a different function.
Transitional spousal support provides the temporary support
needed for a spouse to obtain the training and education nec-
essary for reentry into the job market. ORS 107.105(1)(d)(A).
Spousal maintenance provides the financial support needed
by a spouse for a specified or indefinite period, depending in
part upon the financial needs and resources of each spouse.
ORS 107.105(1)(d)(C). Compensatory support provides com-
pensation to a spouse who has made a significant contribu-
tion, financial or otherwise, to the education, training, or
career of the other spouse. ORS 107.105(1)(d)(B). Thus, the

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amount of support awarded under each category of spousal
support is relevant and should be considered in determining
the overall amount of spousal support that is just and equi-
table. Because each category of spousal support serves a dif-
ferent function, however, an award of spousal support under
one or more of the categories should not generally serve to
negate entirely an award of support under the other catego-
ries. In other words, an award of transitional support, even a
large award of transitional support, may not preclude an
award of compensatory support where the statutory factors
for determining an award of compensatory support are sat-
isfied. Although a large transitional support award is rele-
vant and may well serve to reduce the compensatory support
award to some extent, only rarely will an award of spousal
support under one or more of the statutory categories serve to
eliminate completely an award of spousal support under the
other category or categories when the applicable statutory
criteria are otherwise met.

Wife sought in the trial court and argues in this court
for a compensatory support award in the amount of $3,000
per month for 17 years of husband's remaining dental career.
In determining the amount and the length of a compensatory
spousal support award, we take into account the awards that
wife has received as transitional support and as maintenance
support,7 the comfortable lifestyle that the marital assets
provided to wife during the marriage, and the substantial
distribution of marital assets to wife. We have also consid-
ered the six years that wife contributed significantly to hus-
band's ability to obtain his dental degree, that wife assumed
primary childcare and household responsibilities when she
left work, that wife frequently worked at husband's business
for approximately seven years, and husband's ability to pro-
duce income from his dental practice of $350,000 to $400,000
per year over the next 17 to 27 years. Based on the foregoing,
we conclude that a compensatory spousal support award of
$2,000 per month for 10 years is just and equitable in all of
the circumstances. Consequently, the decision of the Court of

7 In this case, the trial court awarded wife transitional support and mainte-
nance support totaling $7,000 per month for four years, $4,000 per month for two
years, $2,500 per month for two years, and $1,000 per month for one year.

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Appeals and the judgment of the circuit court must be modi-
fied to award compensatory spousal support to wife in that
amount.8

The decision of the Court of Appeals is modified in
part and, as modified, affirmed. The judgment of the circuit
court is modified in part and, as modified, affirmed, and the
case is remanded to the circuit court for further proceedings.

8 In a related case, S058224, wife has petitioned this court for review of the
Court of Appeals' award of attorney fees to husband. By separate order issued
today in case number S058224, the court has allowed wife's petition for review,
vacated the Court of Appeals' award of attorney fees to husband, and remanded the
award of attorney fees to the Court of Appeals for reconsideration in light of this
decision.