Braatz v. Braatz, A167165

• Decision Date: 06 March 2019
• Docket Number: A167165
• Citation: 296 Or.App. 484,438 P.3d 479
• Parties: Michael William Alan BRAATZ, Petitioner-Respondent, v. Alexandra Cassandra Kathleen Lynn BRAATZ, Respondent-Appellant.
• Court: Oregon Court of Appeals

296 Or.App. 484

438 P.3d 479

Michael William Alan BRAATZ, Petitioner-Respondent,

v.Alexandra Cassandra Kathleen Lynn BRAATZ, Respondent-Appellant.

A167165

Court of Appeals of Oregon.

Argued and submitted January 29, 2019.

March 6, 2019

Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

No appearance for respondent.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

PER CURIAM

This is an appeal from a judgment of remedial contempt¹ in which the trial court found that appellant had violated the parenting time provisions of a dissolution judgment. The court imposed, among other sanctions, a determinate term of "24 months of bench probation, with a stay of imposition of six months of jail," and a related bench probation fee in the amount of $100. On appeal, appellant assigns error to the imposition of those sanctions. Although appellant did not object to the challenged sanctions below, she relies on a series of our decisions to contend that the trial court plainly erred by imposing the determinate term of probation, and that we should exercise our discretion to correct that plain error.

Appellant is correct that we routinely have held that it is plain error for a trial court to impose a determinate term of probation as a sanction in a remedial contempt proceeding. Lamm and Lamm , 290 Or. App. 351, 354, 416 P.3d 310 (2018) ("We have consistently held that it is plain error to impose a determinate term of probation in a remedial contempt proceeding."); State v. Gardner , 287 Or. App. 225, 227, 401 P.3d 292 (2017) (trial court plainly erred by imposing a determinate term of probation in a remedial contempt proceeding because a determinate term of probation is a punitive sanction, not a remedial one); Altenhofen and Vanden-Busch , 271 Or. App. 57, 61-62, 349 P.3d 655, rev. den. , 358 Or. 449, 366 P.3d 719 (2015) (same). For that reason, we conclude that the trial court plainly erred in this case by imposing a determinate term of probation. We further conclude, for reasons similar to those in Altenhofen , that it is appropriate to exercise our discretion to correct that error. See Altenhofen , 271 Or. App. at 62, 349 P.3d 655 (concluding that "the interests of the parties, the gravity of the error, and the ends of justice" weighed in favor of correcting erroneously imposed term of probation, where the erroneous...