424 June 10, 2026 No. 518
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Marriage of
Helen Irene SHERMAN,
Petitioner-Appellant,
and
Mark Douglas SHERMAN,
Respondent-Respondent.
Washington County Circuit Court
22DR04971; A183923
Donald R. Letourneau, Senior Judge.
Argued and submitted February 18, 2026.
Andrew W. Newsom argued the cause and filed the briefs
for appellant.
Michael J. Fearl argued the cause for respondent. Also
on the brief was Schulte, Anderson, Downes, Aronson &
Bittner, P.C.
Before Egan, Presiding Judge, Kamins, Judge, and Walters,
Senior Judge.
KAMINS, J.
Property division and award of attorney fees vacated and
remanded for reconsideration; otherwise affirmed.
Cite as 350 Or App 424 (2026) 425
KAMINS, J.
In this dissolution of marriage case, wife appeals
a judgment awarding husband half of her post-separation
earnings. Wife argues that the trial court erred in fashioning a just and proper division of assets with respect to
her post-separation earnings. We conclude that the trial
court abused its discretion in awarding husband half of
wife’s post-separation earnings by relying on the length of
the marriage and the degree to which the parties had integrated their finances. We therefore vacate and remand.1
We “review the trial court’s determination of a ‘just
and proper’ property division for an abuse of discretion.
In doing so, we are bound by the trial court’s express and
implicit factual findings if they are supported by any evidence in the record.” Morgan and Morgan, 269 Or App 156,
161, 344 P3d 81, rev den, 357 Or 595 (2015) (quoting ORS
107.105(1)(f)).
We begin with the relevant background facts. The
parties married in 1988. During the marriage, husband was
the primary stay-at-home parent and homemaker while wife
was the primary wage earner. The parties began physically
and financially separating in January 2021, after which wife
stopped depositing any income into the couple’s joint bank
account and instead opened several new bank accounts in her
name only. Wife started a new job in July 2021, and began
depositing her salary and bonuses into those separate accounts that only she could access (post-separation earnings). In doing so, as the trial court found, she intended that her earnings be for her rather than the family. Wife used the money from her
separate accounts for her living expenses while husband used
the money from the parties’ joint account. In early 2022, wife moved out of the family home and petitioned for dissolution
1
Wife also argues that the trial court erred in awarding attorney fees to husband. Our disposition has the effect of vacating and remanding that judgment as well. See Cirina and Cirina, 271 Or App 161, 167, 350 P3d 504 (2015) (“Because we vacate and remand for the trial court to reconsider questions concerning * * * property division, we likewise vacate and remand the award of attorney fees.”); Proctor and Proctor, 204 Or App 250, 252, 129 P3d 186, rev den, 340 Or 672 (2006) (“In light of our decision to reverse and remand the property division for reconsideration, we vacate the trial court’s decision on attorney fees and remand for reconsideration of that issue as well.”).
426 Sherman and Sherman
of the marriage, and a general judgment of dissolution was
entered in 2023. By the time of the general judgment, wife’s
post-separation earnings totaled approximately $671,659 in
cash savings and $116,064 in a 401(k), nearly all of which
came from the income from wife’s new job.
The parties stipulated to a lump-sum payment from
wife to husband of $237,000 in lieu of spousal support and
divided assets acquired during the marriage. With respect
to wife’s post-separation earnings, the trial court determined that wife rebutted the presumption that husband
contributed equally to those earnings but, nonetheless,
awarded husband half of those earnings based on the length
of the marriage and the parties’ integrated finances during
the marriage.2 Wife now appeals, arguing that the length
of the marriage by itself does not address the proper legal
considerations.
ORS 107.105(1)(f) provides for the division of marital
property in a dissolution judgment “as may be just and proper
in all the circumstances.” When reviewing a trial court’s property division for abuse of discretion, we will not disturb that division “unless we conclude that the trial court misapplied
the statutory and equitable considerations required under
ORS 107.105(1)(f).” Hixson and Hixson, 235 Or App 217, 227-28, 230 P3d 946, adh’d to as clarified on recons, 235 Or App
570, 232 P3d 996 (2010). In other words, “[w]e will not disturb a trial court’s determination of what property division is just and proper” as long as the trial court’s award is “within the
range of legally permissible outcomes.” Van Winkel and Van
Winkel, 289 Or App 805, 810, 412 P3d 243, rev den, 363 Or
224 (2018) (internal quotations marks omitted).
One of the statutory factors a trial court must consider under ORS 107.105(1)(f) is a rebuttable presumption of
equal contribution. That factor states that, subject to exceptions not relevant here, “there is a rebuttable presumption
that both parties have contributed equally to the acquisition
of property during the marriage, whether such property is
jointly or separately held.” ORS 107.105(1)(f)(C). “If a party ultimately rebuts the presumption that the other spouse
2
The accounts were technically awarded to wife, but husband received an off-set using other marital property.
Cite as 350 Or App 424 (2026) 427
contributed equally to a disputed marital asset, then the
court decides how to distribute that marital asset without
regard to any presumption and, instead, considers only what
is ‘just and proper in all the circumstances,’ including the
proven contributions of the parties to the asset.” Kunze and
Kunze, 337 Or 122, 135, 92 P3d 100 (2004). When a party
proves that a marital asset was acquired without any contribution by the other spouse, it is generally just and proper—
unless additional considerations dictate otherwise—to
award that asset separately to the party who overcame the
presumption. Davis and Davis, 268 Or App 679, 681, 342 P3d
1117 (2015).
In addition to the statutory factors in ORS 107.105
(1)(f), a trial court’s “just and proper” division of marital
property also “requires” consideration of certain “equitable
considerations that the Supreme Court has directed trial
courts to consider ‘to promote consistency and predictability in dissolution decrees.’ ” Barzilay and Barzilay, 329 Or
App 250, 258, 541 P3d 235 (2023) (quoting Kunze, 337 Or at
132). Those equitable considerations, established in Kunze,
operate alongside but are distinct from the statutory factors, and “take[ ] into account the social and financial objectives of the dissolution, as well as any other considerations that bear upon the question of what division of the marital property is
equitable.” Id. at 135.
Those considerations include the preservation of
assets, achievement of economic self-sufficiency for both
spouses, and the particular needs of the parties and their
children. Id. at 136. Another consideration identified in
Kunze is the extent to which a spouse has integrated a separately acquired asset into the common financial affairs of
the marriage through commingling. Id. Commingling occurs
when the parties’ shared financial decisions are made in reliance on the separate asset without regard to whether it was
separately acquired. Id. at 140. In determining whether commingling supports inclusion of a separately acquired asset in
the marital property division, the court focuses on whether
the spouse who acquired the asset demonstrated an intent
to retain it as separate property or instead intended it to
become part of the marital estate. Id. at 142.
428 Sherman and Sherman
Although those considerations are nonexclusive,
Hostetler and Hostetler, 269 Or App 312, 322, 344 P3d
126 (2015), any additional equitable considerations “must,
nonetheless, be directed at meeting the objectives of ORS
107.105(1)(f) to promote consistency and predictability in dissolution decrees.” Brush and Brush, 319 Or App 1, 11, 509
P3d 124 (2022). In Brush, we adhered to that admonition by
rejecting the length of marriage as a sufficient standalone
equitable consideration, explaining that the length of marriage alone “tells us little, if anything, about whether the
social and financial objectives of ORS 107.105(1)(f) are being met in a particular property division.” Id. at 12.
With that background in mind, we turn to the parties’ arguments on appeal. Wife argues that the trial court
erred in fashioning a just and proper division of assets with
respect to her post-separation earnings. Although the trial
court determined that wife had rebutted the presumption
of equal contribution as to those assets, wife contends that
the court nonetheless erred in awarding half of those earnings to husband without identifying any statutory factor or
equitable consideration to support that decision. The trial
court provided the following reasoning in support of its
decision:
“Wife has overcome the presumption of equal contribution with respect to the money she earned after she left the
family home.
“But, under a just and proper analysis, her earnings
shall be divided between the parties as described in this
letter. The court has reviewed the Family Law CLE at
Section 6.1-4 and applied the legal principles found there to
this case. The court takes into consideration the statutory
factors under ORS 107.105(1)(f) as well as the social and
financial objectives of the dissolution.
“As the Family Law CLE states at Section 6.2-3, in a
long-term marriage, the parties should generally leave
on equal footing. Wolfe and Wolfe, 248 Or App [582, 273
P3d 915], rev den, 352 Or 266 (2012). This is especially true
when financial affairs are fully integrated. This thirty-five
year marriage does not generally present a case to depart
from these traditional principles.”
Cite as 350 Or App 424 (2026) 429
Wife argues that the court improperly relied on the
length of the marriage, which is neither a statutory factor under ORS 107.105(1)(f) nor an equitable consideration
directed at meeting the social and financial objectives of
that statute—namely, achieving a property division that is
“just and proper in all the circumstances.”
Husband responds that wife misreads the trial
court’s reasoning and that the “obvious implication” of the
ruling is that the trial court instead relied on the parties’
relative capacities for economic self-sufficiency in order to
place the parties on more equal footing—considerations that
he contends are consistent with the equitable framework
described in Kunze.
We agree with wife’s reading of the decision. Here,
the trial court cited to two sources in support of its belief
that “in a long-term marriage, the parties should generally
leave on equal footing” specifically when dividing wife’s postseparation earnings and regardless of wife overcoming the
presumption of equal contribution. As we explain, however,
neither source ultimately supports that proposition.
The first cited source was the “Family Law CLE
* * * at Section 6.2-3.” That appears to be a reference to the Oregon State Bar’s publication for practitioners, 1 Family
Law in Oregon (OSB Legal Pubs). It is unclear which of the
eight editions the trial court cited, and, regardless, a bar publication is not a legal authority. In any event, the most recent edition of that publication discusses length of the marriage
as a historical background—not a consideration that courts
should continue to follow:
“Oregon cases have historically focused on the length of
the marriage when dividing property; however, it is clear
that after the Oregon Supreme Court’s ruling in [ ]Kunze,
an emphasis on only the number of years of marriage
rather than the extent to which the parties have integrated
assets into their common financial affairs is likely misplaced. Historically, the court emphasized that, in shortterm marriages, the parties should be put back in the same
financial circumstances they would have been in had no
marriage taken place. * * * Conversely, ‘[p]arties to a longterm marriage should leave the marriage in approximately
430 Sherman and Sherman
equal positions, if possible.’ [Hill and Hill], 90 Or App 493,
495, 752 P2d 1264 (1988).
“A current reliance on whether the marriage was ‘shortterm’ or ‘long-term’ should be avoided, and instead lawyers
should focus on both the expectations of the parties and the
degree of financial integration.”
Lauren Saucy & Paul Saucy, Chapter 6: Property Rights and
Division, § 6.2-3, in 1 Family Law in Oregon (8th ed 2023)
(emphasis added).
The trial court also cited to Wolfe in stating that
in a long-term marriage, parties should generally leave
on equal footing, especially when financial affairs are fully
integrated. However, the rationale behind Wolfe’s analysis
of the “social and financial objectives of the dissolution” factor rested entirely on a couple’s “shared future” and “shared
finances” and is far less relevant here, when wife kept her
post-separation earnings fully separate:
“[W]hen couples enter marriage, they ordinarily commit themselves to an indefinite shared future of which
shared finances are a part. Acquisitions are made, forgone
or replaced for the good of the family unit rather than for
the financial interests of either spouse. Property is bought,
sold, enhanced, diminished, intermixed and used without
regard to ease of division upon termination of the marriage.”
248 Or App at 598 (internal quotation marks omitted). That
rationale does not apply here, where wife kept her postseparation earnings separate, making them easily divided
upon termination of the marriage. See also id. at 598-99 (further reasoning that the husband’s separately held property
should be divided because “husband intended—at least until
the marriage deteriorated—for the disputed property as a
whole to be available to the family unit when necessary”).
Here, the desire to leave parties on equal footing
due to the length of the marriage, and the court’s statement
that the parties’ financial affairs were “fully integrated” do not support husband’s award of half of wife’s post-separation
earnings. The fact that the parties were married for 35 years
should not have been the focus of the court’s analysis after
wife rebutted the presumption of equal contribution. Length
of the marriage alone is not an equitable consideration under
Cite as 350 Or App 424 (2026) 431
Kunze, nor is it an independent consideration that advances
the statutory objectives of ORS 107.105(1)(f) in determining
whether separately acquired property should be divided. See
Brush, 319 Or App at 11 (explaining that length of marriage,
by itself, says little about whether the social and financial
objectives of dissolution are met); see also Van Winkel, 289 Or App at 814 (discussing that the length of the marriage is not
determinative in the property division analysis).
The record, moreover, does not support the trial
court’s determination that the parties’ finances were “fully
integrated.” Wife’s post-separation earnings were made for
her own financial interest rather than for the marital partnership. The trial court expressly found that wife “intended
that her earnings be for her rather than the family” by separating her income into her own account starting in January
2021. That finding is inconsistent with the trial court’s reasoning in the judgment, which relied on the parties’ “financial affairs” being “fully integrated.”
Accordingly, the court’s reliance on financial integration and its citation to Wolfe did not provide a valid equitable basis for awarding husband a share of wife’s post-separation
earnings. In the absence of any articulated equitable consideration advancing the social and financial objectives of ORS
107.105(1)(f), the trial court abused its discretion awarding
husband half of wife’s post-separation earnings.
Property division and award of attorney fees vacated
and remanded for reconsideration; otherwise affirmed.