No. 341 July 6, 2023 709

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of the Marriage of

Karen CRAVEN,

Petitioner-Respondent,

and

David R. CRAVEN,

Respondent-Appellant.

Deschutes County Circuit Court

20DR04225; A177706

Alison M. Emerson, Judge.

Argued and submitted March 22, 2023.

Andrew W. Newsom argued the cause and filed the briefs 

for appellant.

Ruth A. Casby argued the cause for respondent. Also on 

the brief were Janet M. Schroer and Hart Wagner LLP.

Before Tookey, Presiding Judge, and Egan, Judge, and 

Kistler, Senior Judge.

EGAN, J.

Vacated and remanded for reconsideration of property 

division; otherwise affirmed.
710 Craven and Craven

EGAN, J.

Husband appeals from a judgment dissolving the 

parties’ 26-year marriage, contending that the trial court 

erred in its division of marital property, primarily relating 

to its equal division of marital appreciation on an investment 

account brought into the marriage by husband, which passively grew from $324,635 when the parties were married in 

1995 to $3,477,673 at the time of dissolution in August 2021. 

Husband also assigns error to the trial court’s denial of his 

request to take judicial notice of public market reports that 

he asserts would assist the court in determining the amount 

of appreciation in the account due to the parties’ payment 

of capital gains taxes from other accounts, as well as to the 

trial court’s ultimate “just and proper” division of the marital property. We agree with husband that the court erred 

in rejecting his request that the court take judicial notice 

of publicly available information concerning the account’s 

earnings. We therefore vacate and remand the judgment for 

the court to reconsider whether the presumption of equal 

contribution has been overcome and to reconsider its division of property.

Husband’s assignments on appeal all relate to 

the trial court’s property division, for which we provide an 

overview of the relevant legal principles. ORS 107.105(1)(f) 

directs a court entering a judgment of dissolution to divide 

property at dissolution in a manner that is “just and proper 

in all the circumstances.” Under that statute, the court is 

empowered “to distribute any real or personal property that 

either or both of the parties hold at the time of dissolution, 

including property that the parties had brought into the 

marriage.” Kunze and Kunze, 337 Or 122, 133, 92 P3d 100 

(2004).

“Marital assets” fall into a subcategory of marital 

property and consist of assets acquired during the marriage, including the appreciation of assets brought into 

the marriage. Id. Marital assets are subject to a statutory 

presumption of equal contribution. ORS 107.105(1)(f)(C) 

(describing rebuttable presumption that both parties have 

contributed equally to the acquisition of marital assets, 

regardless of “whether such property is jointly or separately 
Cite as 326 Or App 709 (2023) 711

held”).1

 The presumption “embodies a legislative intent to 

recognize that, absent evidence to the contrary, each spouse’s 

efforts during a marriage equally contribute to, and are 

made for the benefit of, the marital estate, regardless of the 

nature of those efforts or how the property is held.” Kunze, 

337 Or at 134. When the statutory presumption is not 

rebutted, absent other considerations, the “just and proper” 

division of the marital assets is an equal division between 

the parties. Id.

A party seeking to rebut the presumption of equal 

contribution “has the burden of proving by a preponderance 

of the evidence that the other spouse’s efforts during the 

marriage did not contribute equally to the acquisition of the 

disputed marital asset.” Id. If the presumption is rebutted, 

the court decides, in its discretion, how to distribute the 

asset without regard to any presumption, based on what is 

“just and proper in all the circumstances,” in light of the 

parties’ proven contributions to the asset. Staveland and 

Fisher, 366 Or 49, 57, 455 P3d 510 (2019). “A rebuttal of the 

presumption may justify a division of the marital assets on 

less than an equal basis.” Id. When the party has proved 

that a marital asset was acquired free of any contributions 

from the other spouse, absent other considerations, it is “just 

and proper” to award that marital asset separately to the 

party who has overcome the statutory presumption. Kunze, 

337 Or at 135.

In determining whether the statutory presumption 

has been rebutted with respect to appreciation in the value 

of an asset owned by one spouse at the time of the marriage, the court’s first task is to determine the contribution 

by each party. Hixson and Hixson, 235 Or App 217, 230 P3d 

1 ORS 107.105(1)(f) provides, in part:

“In determining the division of property under this paragraph, the following apply:

“* ****

“(B) The court shall consider the contribution of a party as a homemaker 

as a contribution to the acquisition of marital assets.

“(C) Except as provided in subparagraph (D) of this paragraph, 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.”
712 Craven and Craven

946, adh’d to as clarified on recons, 235 Or App 570, 232 P3d 

996 (2010). The court looks at the extent to which the other 

spouse contributed or did not contribute to the increase in 

value. Massee and Massee, 328 Or 195, 205, 970 P2d 1203 

(1999). An inquiry into the relative contributions of the parties is required:

“The court first must determine the magnitude of each 

spouse’s overall contribution to the acquisition of marital assets from evidence in the record. If one spouse is a 

homemaker, that determination necessarily will include an 

assessment of the homemaker spouse’s contribution to the 

enterprise of homemaking. A homemaker spouse’s overall 

contribution may consist of a combination of domestic contributions and economic or other nondomestic contributions.

“Once the court has determined each spouse’s overall 

contribution to the acquisition of marital assets, the court 

compares the respective contribution of the spouses. The 

ultimate question is whether the spouse seeking to rebut 

the presumption of equal contribution has proved, by a preponderance of the evidence, that the other spouse did not 

contribute equally to the acquisition of marital assets.”

Id. (footnote omitted). In assessing whether a party has 

satisfied that burden, ORS 107.105(1)(f) requires the court 

to consider both economic and noneconomic spousal contributions, including the contributions of a spouse as a homemaker. ORS 107.105(1)(f) (court shall consider contribution 

of spouse as homemaker). As the court said in Massee, 328 

Or at 207:

“[T]here is no difference in kind, analytically, between husband’s contribution to the acquisition of the marital assets 

at issue here and wife’s homemaker contribution to that 

acquisition. The only difference may be one of magnitude. 

Husband, here the spouse challenging the presumption of 

equal contribution, must prove by a preponderance of the 

evidence that wife did not contribute equally to the acquisition of the appreciation, during the marriage, of husband’s 

separately held assets.”

Evidence that appreciation of a nonmarital asset 

was not attributable to either spouse, i.e., was “passive,” generally will support a determination that the presumption 

has been overcome. See Wolfe and Wolfe, 248 Or App 582, 
Cite as 326 Or App 709 (2023) 713

595, 273 P3d 915, rev den, 352 Or 266 (2012) (presumption 

overcome when entire account appreciation was passive and 

traceable to husband’s premarital interest in the property); 

cf. Denton and Denton, 326 Or 236, 243-44, 951 P2d 693 

(1998) (wife’s willingness to relocate, as well as her economic and domestic efforts, were contributions to husband’s 

enhanced earning capacity).

Evidence of “commingling” of an asset with household finances can come into play twice in a property division 

determination under ORS 107.105. In the context of the presumption, an act of commingling can preclude the court from 

identifying a spouse’s separate contribution with sufficient 

reliability to determine whether or not both spouses have 

contributed equally to the disputed asset, Kunze, 337 Or at 

138, and thus defeat an effort to overcome the presumption.

After determining whether the presumption of 

equal contribution has been overcome, the court makes a 

division of marital property that the court deems “just and 

proper in all the circumstances.” ORS 107.105(1)(f). In the 

court’s “just and proper” determination, a spouse’s commingling of a separately held asset again becomes relevant. The 

court said in Kunze:

“[E]ven if acts of commingling do not preclude the court 

from identifying the source of a disputed asset with sufficient reliability, the integration of a separately acquired 

asset into the parties’ joint financial affairs through commingling may require the inclusion of that asset in the 

property division for a different reason. Specifically, * * * 

acts of commingling may operate to convert a separately 

acquired asset into a joint asset of the marital partnership.”

337 Or at 139 (footnote omitted). In determining whether 

an act of commingling requires the inclusion of separately 

acquired property in the property division, the court evaluates the extent to which the separately acquired asset 

has been integrated into the joint finances of the marital 

partnership and whether any inequity would result from 

the award of that asset to that spouse as separate property. 

Id. at 142.

We turn to the trial court’s rulings in this case as 

they bear on the primary dispute on appeal, which concerns 
714 Craven and Craven

the trial court’s division of the appreciation of an investment account. The trial court found that husband brought 

the account into the marriage, because the source of the 

account could be traced to husband’s premarital investment, 

and that finding is not challenged on appeal. The court thus 

awarded to husband the full value of the account at the time 

of the marriage.2

 But the court determined that the appreciation in the account, which was due both to passive growth 

and to the continued reinvestment of the account’s earnings 

over the 26 years of the marriage, was a marital asset, and 

that husband had not overcome the presumption of wife’s 

equal contribution to that appreciation.3

 The court therefore 

split the appreciation portion of the account equally between 

the parties.

In determining that husband had not overcome the 

presumption of equal contribution with respect to the appreciation of the account, the trial court cited the following:

“(a) Wife refused to consider a Prenuptial Agreement as she 

insisted the marriage be one of equal sharing. Although 

not agreeing to that position, Husband proceeded with the 

marriage in full awareness of her position; (b) Wife was the 

primary homemaker and parent for the [parties’] children 

throughout the marriage and by all accounts, including 

Husband’s, performed these roles excellently; (c) Although 

Husband handled all of the [parties’] investment decisions, 

during much of the marriage Wife handled their day to day 

finances; (d) there were a handful of times during the marriage that Husband made investment decisions about the 

location of these funds.

“** * Finally, the use of the [parties’] joint funds to pay 

the income taxes that were incurred as the result of the 

annual growth of these accounts is impossible to overlook. This occurred throughout the entire marriage. This 

resulted in a substantial benefit to these separately held 

accounts. Husband now acknowledges that this should not 

have occurred and seeks to now reimburse the marital 

estate from this separate account for these income tax payments. The Court appreciates his efforts to do so. However, 

2 That award is not challenged on appeal.

3 It is undisputed on appeal that the appreciation of the account is a marital 

asset.
Cite as 326 Or App 709 (2023) 715

that does not change the 25+ year history of what happened 

with these accounts.

“** * Therefore, the Court finds that all but $324,635 of 

that account to be a marital asset upon which the presumption of equal contribution has not been overcome.”

The court rejected husband’s post-trial request to take judicial notice of public account earning reports that husband 

contended would assist the court in determining how much 

the fund grew as a result of the payment of capital gains 

taxes from the parties’ joint assets. The court explained:

“I intentionally did not address the request for me to take 

Judicial Notice of the information requested by Husband. 

This is because of the fact that the issue in the case for me 

was not whether the account in question benefited $200k, 

$400k, $600k, or some other number, over the years. The 

issue is that marital resources were used for more than 25 

years to the benefit of this account.”

Thus, the trial court concluded that, in light of the use of 

marital resources throughout the marriage for the payment of taxes, the offered public information concerning 

the account’s earnings would have no bearing on the court’s 

determination whether the presumption had been overcome. 

The trial court determined that husband had not overcome 

the presumption of equal contribution.

In making a “just and proper” division of marital property, the trial court rejected husband’s contention 

that it should consider wife’s possible inheritance from her 

father, explaining that the father was still alive and that any 

award anticipating the inheritance would be speculative. In 

its division of the marital property, the court awarded to 

wife half of the marital growth in the disputed appreciation, 

$1,576,519.

Husband challenges the trial court’s rulings relating to the property division in three assignments of error. 

In reviewing the court’s rulings, we accept the trial court’s 

findings that are supported by any evidence in the record, 

Kaptur and Kaptur, 256 Or App 591, 596 n 2, 302 P3d 819 

(2013), and review the trial court’s legal determinations for 

errors of law. Morton and Morton, 252 Or App 525, 527, 287 

P3d 1227 (2012). The court’s property division will not be 
716 Craven and Craven

disturbed “unless the trial court misapplied the statutory 

and equitable considerations required by ORS 107.105(1)(f)[.]” 

Van Winkel and Van Winkel, 289 Or App 805, 810, 412 P3d 

243, rev den, 363 Or 224 (2018).

A party seeking to rebut the presumption of equal 

contribution must persuade the trier of fact that “it is more 

probable than not that the other spouse did not contribute 

equally to the acquisition of the property.” Massee, 328 Or 

at 204-05. Whether a party has overcome the presumption 

of equal contribution to appreciation of a premarital asset 

is a question of fact for the trier of fact. Staveland, 366 Or 

at 58 (“[Whether or not the presumption is rebutted] is a 

factual determination to be made by the trial court in the 

first instance.”). However, there are situations when the 

underlying facts are not in dispute and the question instead 

is whether the trial court misapplied the law. See, e.g.,

Maldonado and Freed, 294 Or App 583, 432 P3d 1154 (2018). 

In husband’s view, this is such a case. In his first assignment of error, husband does not challenge the trial court’s 

findings but contends that the court’s determination relating to the presumption of equal contribution demonstrates 

legal error, and that the undisputed evidence requires the 

finding that the presumption of equal contribution has been 

overcome.

In the explanation for its ruling, the trial court 

cited wife’s contribution as a homemaker. It is undisputed 

that, throughout the marriage, wife was the homemaker 

and the primary caregiver of the parties’ children; she also 

managed the family’s home finances, while husband managed their investments. Husband nonetheless argues that 

the factors cited by the trial court relating to wife’s contribution as a homemaker do not support the trial court’s conclusion relating to the presumption, because the evidence 

shows that those homemaker contributions did not contribute to the growth of the investment account.

We agree with husband that on this record, as in 

Lind and Lind, 207 Or App 56, 65, 139 P3d 1032 (2006), and 

Wolfe, 248 Or App at 595, it does not appear that wife’s contributions as a homemaker made a direct contribution to the 

growth in the investment account.
Cite as 326 Or App 709 (2023) 717

But wife’s homemaker role did contribute indirectly. It is undisputed that, throughout the marriage, husband paid taxes on capital gains on investments sold in the 

account from the parties’ joint accounts, rather than from 

husband’s separate funds or from the account earnings. 

Husband earned the money for the tax payments while wife 

was supporting husband’s employment through her homemaking and child-rearing contributions. Those payments 

therefore constituted a contribution by wife. They allowed 

the account not to be diminished by payment of taxes and 

in that way contributed to the growth of the account, a fact 

that is not disputed by husband.4

The trial court relied on wife’s indirect contribution 

through the payment of taxes on capital gains to conclude 

that the presumption of equal contribution had not been overcome. Husband asserts, however, that the record requires the 

finding that wife’s contribution to the account through the 

payment of taxes on capital gains was not equal to growth 

solely attributable to the passive growth of the investment 

during the 26 years of the marriage. He asserts that the portion of the tax payments attributable to wife resulted in, at 

most, a growth of approximately 10.8 percent in the account, 

a figure that wife does not directly dispute, except to assert 

that husband “overstates” its accuracy. Husband contends 

in his second assignment of error that, in aid of the trial 

court’s determination of the extent of wife’s contribution, the 

trial court should have taken judicial notice of the publicly 

available historical data that husband offered by way of his 

request for judicial notice concerning the account’s earnings 

during the relevant period, which he argues would have 

been relevant to the trial court’s determination whether 

wife’s contribution to the appreciation through her share of 

the tax payments was “equal” to husband’s. As noted, the 

trial court declined to consider the information, determining that it was irrelevant, based on the court’s conclusion 

4 We note that the parties do not argue that, apart from earnings that 

accrued to the account from the payment of taxes, the reinvestment into the 

account of the account’s earnings themselves constituted marital contributions 

to the appreciation of the account that are partially attributable to wife. That 

argument would be foreclosed by our opinion in the factually similar Wolfe, 248 

Or App at 595, where we did not treat reinvested earnings as a marital contribution to growth in an investment account.
718 Craven and Craven

that wife’s contributions as a homemaker and the parties’ 

26-year practice of paying the account’s capital gains taxes 

out of joint funds was sufficient to support the rejection of 

husband’s contention that wife’s contribution was not equal. 

We review the trial court’s ruling excluding the evidence 

based on relevance for legal error. See State v. Titus, 328 Or 

475, 481, 982 P2d 1133 (1999) (relevancy rulings reviewed 

for legal error).

Judicial notice applies to a fact that is “not subject 

to reasonable dispute,” because the fact is either:

“(1) Generally known within the territorial jurisdiction of the trial court; or

“(2) Capable of accurate and ready determination by 

resort to sources whose accuracy cannot reasonably be 

questioned.”

OEC 201(b). See Bowden v. Davis et al, 205 Or 421, 430-31, 

289 P2d 1100 (1955) (taking judicial notice of the physical 

and geographic arid conditions in southeast Oregon); Volny 

v. City of Bend, 168 Or App 516, 519 n 2, 4 P3d 768 (2000) 

(taking judicial notice of the population of Bend). There is no 

contention that historical earnings data offered by husband 

does not meet those prerequisites. We agree with husband 

that the trial court’s reasoning for declining to take judicial notice of the publicly available information concerning 

account earnings because it had no bearing on the extent of 

wife’s contribution in light of wife’s contributions as a homemaker and other contributions to the marital partnership 

was incorrect. The court’s determination that wife had made 

a contribution to the appreciation through the payment of 

taxes did not eliminate the need to determine the “magnitude” of her contribution. Massee, 328 Or at 207 (“[T]here is 

no difference in kind, analytically, between husband’s contribution to the acquisition of the marital assets at issue 

here and wife’s homemaker contribution to that acquisition. 

The only difference may be one of magnitude.”). Contrary 

to the trial court’s determination, evidence of the effect of 

the payment of taxes on capital gains over the years on the 

growth of the account, as wife’s indirect contribution as a 

homemaker, was relevant to the court’s determination of the 

extent of wife’s contribution to the growth of the fund. Thus, 
Cite as 326 Or App 709 (2023) 719

we conclude that the trial court committed legal error in 

concluding that that information was irrelevant, and therefore erred in rejecting the request for judicial notice and in 

determining on this record that husband had not overcome 

the presumption of wife’s equal contribution to the appreciation in the account.5

In light of our conclusion that the trial court erred 

in determining on this record that the presumption of equal 

contribution was not overcome, we must remand the case to 

the trial court for it to reconsider husband’s argument that 

the presumption has been overcome in light of evidence concerning the amount by which wife’s portion of the parties’ 

tax payments contributed to the growth of the fund. After 

the court makes that determination, the court will again 

have an opportunity to reconsider a just and proper distribution of the marital property.

Because the issue could arise on remand, we also 

address husband’s third assignment of error, in which he 

contends that the trial court’s division of the marital property was not “just and proper,” because the court erred in 

failing to consider wife’s prospective inheritance from her 

father in determining a “just and proper” division of assets. 

The primary asset of that potential inheritance is an investment fund. We agree with the trial court that, in light of the 

fact that wife’s father was still living, consideration of that 

potential inheritance in the property division would have 

been speculative.

Vacated and remanded for reconsideration of property division; otherwise affirmed.

5 Our conclusion hinges on those aspects of the marital property that, based 

on the record, are quantifiable.