Berry v. Huffman
| Decision Date | 25 January 2012 |
| Docket Number | 060261720; A142774. |
| Citation | 271 P.3d 128,247 Or.App. 651 |
| Parties | In the Matter of the MARRIAGE OF Caroline V. BERRY, aka Carolyn Vaudine Berry, Petitioner–Respondent,andNoel Bruce HUFFMAN, Respondent–Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Elizabeth A. Trainor argued the cause and filed the briefs for appellant.
Herb Weisser argued the cause for respondent. With him on the brief was Herb Weisser, P.C.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.
In this contentious, convoluted, and protracted domestic relations dispute, husband appeals from two supplemental judgments,1 raising several assignments of error. We reject without published discussion all of husband's assignments of error except for his first, which pertains to an award of attorney fees to wife in the supplemental judgment entered on June 15, 2009. As explained below, we conclude that, contrary to the trial court's determination, an award of attorney fees is not authorized under ORS 107.135(8), as predicated on ORS 107.135(15); nor is there any fee entitlement, as wife alternatively argues, under ORS 107.105(1)(j). Accordingly, we reverse the June 15, 2009, supplemental judgment awarding fees to wife, but otherwise affirm.
A comprehensive account of the parties' dispute would be of no benefit to the bench, the bar, or the public. The circumstances material to our review of the challenged fee award are limited and relatively straightforward. The parties' marriage was dissolved in April 2007 pursuant to a stipulated general judgment. That judgment provided, inter alia, that, as an element of “family support,” husband would make specified payments, including mortgage and tax payments on the marital residence until the residence was sold on or before June 15, 2010, with the parties continuing to own the residence as tenants-in-common until the sale. The judgment further provided that “[e]ach party shall pay their [ sic ] own attorneys fees and court costs.”
In the fall of 2008, disputes pertaining to husband's failure to make prescribed payments and wife's efforts to respond to those defaults led to the parties filing a battery of cross-cutting motions, including motions by wife to enforce provisions of the stipulated judgment pertaining to payments on the residence and to modify that judgment's provisions regarding spousal support, and husband's “counter-motion” to modify/terminate the spousal support provisions of the stipulated judgment. Each of those motions included an allegation of entitlement to attorney fees. Wife subsequently withdrew her request for spousal support.
In a supplemental judgment signed on December 18, 2008, and entered on January 5, 2009, the trial court denied husband's motion to terminate spousal support “for the reason that there is no specific spousal support obligation imposed by the General Judgment” and granted wife's motion for enforcement, directing that “Husband must pay the house-related expenses required under the General Judgment.” The court further directed that, because husband had failed to make prescribed payments, wife was entitled to a judgment against husband “in the amount of that deficiency ($35,675.59).” 2
Wife subsequently sought an award of attorney fees of $7,868 with respect to the matters determined by the January 5 supplemental judgment. Wife's allegation of entitlement was based solely on ORS 107.135. Husband objected to that request on numerous grounds. Specifically, he argued that ORS 107.135(8) was inapposite because fee entitlement pursuant to that provision is, in turn, predicated on ORS 107.135(1) and wife, ultimately, had withdrawn her motion to modify spousal support and, thus, did not seek to “[s]et aside, alter or modify” any award of spousal support. ORS 107.135(1)(a).3 In subsequent submissions invited by the trial court, the parties amplified their positions, with wife asserting, inter alia, that fees for enforcement of a judgment rendered under ORS 107.105 are recoverable under ORS 107.105(1)(j) and, alternatively, that ORS 107.135(15)(b) afforded a fee entitlement with respect to enforcement of stipulated judgments.
In a supplemental judgment entered on June 15, 2009, the trial court awarded wife attorney fees in the full amount requested, $7,868. The trial court explained its reasoning in a comprehensive and thoughtful letter opinion, which included a finding that wife's requested fees pertain solely to “the enforcement portion of the proceedings” and did not include fees for “services related to [the] modification claims.” The court's core reasoning as to the fee entitlement was as follows:
(Second brackets in original.) The court further determined that the factors set out in ORS 20.075(1) militated in favor of discretionary fee entitlement and that the factors set out in ORS 20.075(2) additionally supported an award in the full amount requested.
On appeal, husband, as noted, challenges that fee award. The thrust of husband's argument, as we understand it, is two-fold. First, there is no fee mechanism under ORS 107.135(15) because that provision is a mechanism by which the terms of a stipulated judgment may be specifically enforced, and, here, the parties' stipulated judgment expressly provides that “[e]ach party shall pay [his or her] own attorneys fees[.]” Husband further reasons that to award fees under ORS 107.135(15) as a remedy for his asserted noncompliance would run afoul of a general principle that fees incurred in the enforcement of a contract are not recoverable unless the contract (here, the stipulated judgment) itself provides for fee recovery (which the stipulated judgment did not).
Second, husband contends that there is no independent entitlement to attorney fees under ORS 107.135(8). That is so, husband asserts, for the following reasons: (1) Under the express terms of ORS 107.135(8), fee entitlement under that provision is limited to fees incurred in connection with “a proceeding under subsection (1).” (2) As material here, ORS 107.135(1)(a) pertains solely to proceedings to “ [s]et aside, alter or modify ” (emphasis added) any portion of a judgment of dissolution, including “for the support of a party,” id.—and does not pertain to enforcement proceedings. (3) Here, the trial court did not “[s]et aside, alter or modify” the stipulated judgment of dissolution; rather, it merely purported to enforce the payment provisions of that judgment, rendering ORS 107.135(1) and ORS 107.135(8) inapposite. (4) Further, even if some aspect of the predicate proceeding could somehow be deemed to relate to modification of support, the trial court explicitly stated that its award pertained exclusively to “the enforcement portion of the proceedings” and did not “includ[e] services related to modification claims.”
Wife remonstrates that she was entitled to fees under ORS 107.135(8), as predicated on ORS 107.135(15), because the trial court's January 5 supplemental judgment did, in fact, effect a “modification” of the family support provisions of the stipulated judgment of dissolution—and that was so notwithstanding wife's withdrawal of her motion to modify and the trial court's consequent dismissal of that motion without prejudice. Wife further asserts, as an alternative basis for affirmance, that the trial court could properly have awarded attorney fees pursuant to ORS 107.105(1)(j), which, she emphasizes, provides for recovery of reasonable attorney fees “incurred in the action.” In that regard, wife posits that the predicate “action” included not only the proceedings that yielded the stipulated judgment of dissolution, but also her efforts to enforce provisions of that judgment.
With the dispute so joined and the issues so framed, we turn first to the proper construction and application of the operative statutes. Three provisions of ORS 107.135 are central to our analysis and disposition. First, ORS 107.135(1) provides, in part:
“The court may at any time after a judgment of annulment or dissolution of marriage or of separation is granted, * * *
“(a) Set aside, alter or modify any portion of the judgment that provides * * * for the support of a party * * *.”
Second, ORS 107.135(8) provides:
Finally, ORS 107.135(15) provides, in part:
“(a) It is the policy of this state:
“(A) To encourage the settlement of cases brought under this section; and
“(B) For courts to enforce the terms of settlements described in paragraph (b) of this subsection to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.
“(b) In a proceeding under subsecti...
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In re Berry, 060261720
...action in favor of a party or in favor of a party's attorney.”ORS 107.105(1)(j). Wife's argument is foreclosed by Berry and Huffman, 247 Or.App. 651, 271 P.3d 128 (2012). In that opinion, we held that ORS 107.105(1)(j) authorizes the court to impose attorney fees if the original stipulated ......
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Baertlein v. & Brian Stocks Child Attending Sch.
...in some circumstances, fees can be awarded pursuant to ORS 107.135(8) for enforcement efforts under ORS 107.104. Berry and Huffman , 247 Or. App. 651, 271 P.3d 128 (2012). In Berry , we asked the specific question "whether, when a party seeks, pursuant to ORS 107.104, to enforce some stipul......