In re Hoffman, A161234

• Decision Date: 24 May 2017
• Docket Number: A161234
• Citation: 397 P.3d 595,285 Or.App. 675
• Parties: In the MATTER OF the MARRIAGE OF John N. HOFFMAN, Petitioner-Respondent, and Marlee Ravenscroft Hoffman, Respondent-Appellant.
• Court: Oregon Court of Appeals

285 Or.App. 675

397 P.3d 595

In the MATTER OF the MARRIAGE OF John N. HOFFMAN, Petitioner-Respondent, and Marlee Ravenscroft Hoffman, Respondent-Appellant.

A161234

Court of Appeals of Oregon.

Argued and submitted April 20, 2017.

May 24, 2017

James D. Van Ness, Salem, argued the cause and filed the brief for appellant.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

ORTEGA, P. J.

Wife appeals from a dissolution of marriage judgment, assigning error to the trial court's custody and spousal support determinations, as well as the court's award of attorney fees to husband. We affirm the custody and spousal support awards without further discussion. We write only to address the attorney fee issue, and vacate and remand.

The relevant facts are mostly procedural in nature. Husband filed a petition for dissolution, indicating that wife should be required to pay his attorney fees only if the matter was contested. It was. In his trial memorandum, husband then asked the court to award reasonable attorney fees "pursuant to ORCP 68" because wife had failed to cooperate in the discovery process and in resolving a tax matter. Section C(4) of ORCP 68 states that the procedure for seeking attorney fees or costs and disbursements

" ‘shall be as follows': a party seeking fees ‘shall’ file an affidavit with the court, serve it on the opposing party, and, if there are objections, a hearing ‘shall’ be held and the parties ‘shall be given a reasonable opportunity to present evidence and affidavits relevant to any factual issue.’ "

O'Neal and O'Neal , 158 Or.App. 431, 434, 974 P.2d 785 (1999) (quoting ORCP 68 C(4)).

At trial, while testifying about certain line items, husband testified that he was required to hire out-of-state attorneys to compel discovery from wife in an effort to obtain financial information regarding her various business interests in Arizona. Wife objected to that testimony, con-tending that it was irrelevant to the dissolution proceedings and "would be more appropriately dealt with in an ORCP 68 proceeding." Husband indicated that the information was relevant in order for the court to make a preliminary determination about whether it would award attorney fees. The trial court allowed husband to "quickly" testify on the matter, and husband stated that he had spent over $20,000 in attorney fees. During cross-examination, husband once again testified that he hired and paid $23,000 to attorneys to issue subpoenas.

Following the trial, the court issued its findings in a letter opinion dated December 21, 2015.¹ The court found, in part, that husband had "incurred unnecessary fees when he was required to hire attorneys in Arizona to attempt to obtain appropriate valuation of Wife's trust assets." It then ordered wife to pay husband $23,000 in attorney fees, to be offset by the equalizing judgment owed by husband to wife. That order was memorialized in the general judgment of dissolution entered on December 23, 2015.

On appeal, wife challenges the court's award of attorney fees, arguing that the court failed to identify the basis for the award. She notes that "[n]o documentary evidence was received, nor was a precise explanation elicited as to why incurring [the] fees was somehow Wife's fault." Wife argues that, under ORS 20.075, the court had to identify the relevant facts and legal criteria supporting the award of fees but failed to do so.²

Husband counters that wife failed to preserve her objection to the award. That argument is primarily based on the fact that wife did not object or call attention to the issue after the court issued its letter opinion. We reject that argument from the outset. It is true that, to preserve an error for appellate review, we have previously required that a party object or bring an alleged error to the court's attention where the error was apparent in a letter opinion issued prior to the judgment being entered. See, e.g. , Mitchell and Mitchell , 271 Or.App. 800, 808, 353 P.3d 28 (2015) (an issue was not preserved where, "in the time after the first letter opinion had been issued, but before the court had entered a general judgment, husband did not bring the purported error to the court's attention"). However, based on the record before us, we cannot conclude that wife had a practical opportunity to object in this case, considering the short amount of time (only two days) between the date of the letter opinion and the entry of judgment. The record does not indicate how the letter opinion was sent, when wife received it, or what time or process—if any—the court and parties contemplated for entry of judgment following the letter opinion. Because we cannot conclude that wife had a practical opportunity to object, the preservation requirement does not apply. See Walker v. State of Oregon , 256 Or.App. 697, 699, 302 P.3d 469, rev. den. , 354 Or. 62, 308 P.3d 206 (2013) ("The dictates of preservation do not apply * * * where a party has no practical ability to object to the purported error before entry of judgment.").

Having established that the preservation requirement does not apply in this instance, we return to wife's contention that the court erred by failing to identify the facts and legal criteria supporting an award of attorney fees, reviewing for legal error. O'Neal , 158 Or.App. at 433, 974 P.2d 785 ("Although we review an award * * * of attorney fees for abuse of discretion, ORS 20.075(3), whether the trial court erred in failing to follow the procedure of ORCP 68 is a question of law."). On that point, husband counters that, "as a matter of procedure," the court's award is "less an ORCP 68/ORS 20.075 award than it is simply a part of the ‘just and proper’ division" that the court was required to make in the dissolution judgment. That is, husband contends that the issue is not whether the court complied with the requirements of ORCP 68 and ORS 20.075 but whether the attorney fee award, as part of the property division, was "just and proper."

We reject husband's claim that the attorney fee issue in this case concerns the "just and proper" division of property. We have previously stated that a court does not have the authority to award attorney fees as part of the property division. Johnson and Price , 280 Or.App. 71, 88, 380 P.3d 983 (2016) (so stating). Rather, we have indicated that a court may award attorney fees as a part of the overall dissolution judgment , "taking into account the financial resources of the parties, the property division, and the support orders,...