IN RE MARRIAGE OF TIBBETS AND MUELLER

• Citation: 183 Or.App. 379,52 P.3d 1067
• Parties: In the Matter of the MARRIAGE OF Annette TIBBETTS, fka Annette Mueller, Appellant-Cross Respondent, and Ronald MUELLER, Respondent-Cross Appellant.
• Decision Date: 21 August 2002
• Court: Court of Appeals of Oregon

52 P.3d 1067

183 Or.App. 379

In the Matter of the MARRIAGE OF Annette TIBBETTS, fka Annette Mueller, Appellant-Cross Respondent, and

Ronald MUELLER, Respondent-Cross Appellant.

96 3321; A112635

Court of Appeals of Oregon.

Argued and Submitted May 3, 2002.

Decided August 21, 2002.

James D. Huffman argued the cause for appellant-cross-respondent. With him on the briefs was Huffman & O'Hanlon.

J. Michael Dwyer, Portland, argued the cause for respondent-cross-appellant. With him on the brief was Dwyer & Miller LLP.

Before EDMONDS, Presiding Judge, and KISTLER and SCHUMAN, Judges.

EDMONDS, P.J.

Wife appeals and husband cross-appeals after the trial court reopened the parties' dissolution of marriage proceeding under ORS 107.452. Previously, the parties had filed a co-petition for the dissolution of their marriage, and a judgment on the co-petition had been entered. The initial judgment made no mention of the parties' minor child born before their marriage, and did not make any disposition of the marital residence. Two years after the judgment was entered, husband filed a document with the court that was entitled, "Supplemental Petition for Child Custody."¹ Wife moved to reopen the case under ORS 107.452 because of the omission of the residence from the judgment. Thereafter, the trial court ruled that ORCP 71 was inapplicable,² reopened the case under ORS 107.452,³ and held that the residence was a marital asset that had been inadvertently omitted from the initial judgment. It awarded custody of the child to wife, with a child support obligation to be paid by husband. It awarded wife a judgment for $652 as her share in the appreciated value of the marital residence. It also awarded wife $1,000 in attorney fees, and ordered that the birth certificate of the child be modified to reflect husband's surname. Both parties appeal from the resulting judgment, which we review as part of the judgment of dissolution under ORS 107.105. We reverse in part and otherwise affirm.

The parties are in their late thirties. They began to cohabit in November 1993. Wife then left husband temporarily while pregnant with their child, a son, and moved to Iowa. The child, whom wife gave the surname Tibbetts (using wife's surname), was born in Iowa in December 1994. On his birth certificate, wife caused "unknown" to be written in the "father's name" blank. Wife eventually returned to Oregon and reunited with husband. The parties were married in May 1995. Blair, husband's stepmother, then offered to assist the parties in buying a residence, stating that she wanted the child to have a stable home.

According to husband's evidence, Blair and the parties worked out a financial arrangement for the purchase of a residence. Pursuant to their arrangement, the parties each opened a bank account in Blair's Hawaii bank. Blair then gave $10,000 to husband and $10,000 to wife so that her gifts would remain within the gift tax limit. The parties deposited the funds into their individual Hawaii accounts. Husband's account also contained money from past gifts from Blair. Before any funds were deposited into the accounts, wife made a written request to the bank to transfer $9,000 from her account into husband's account. Wife then requested that the bank send the initial down payment on the residence through a check written from the combined funds in husband's account. The parties were both present for the inspection of the house purchase in February 1996, and for discussions with the realtor. Only husband's and Blair's signatures appear on the relevant closing documents. After the house was purchased, wife and husband lived together in the house for three months. During that time, wife made no contribution toward the property taxes or insurance. Wife moved out of the residence in June 1996 with the child. Wife's evidence at hearing conflicts with husband's evidence. According to her, the $10,000 was an outright gift to her, she elected to invest $9,000 in the residence, and she also contributed to its appreciation in value during her residency.

In August 1996, the parties filed their co-petition for dissolution of their marriage. In the co-petition, which the parties prepared pro se, they completely omitted any mention of the child, both in regards to custody and child support. The property portion of the co-petition indicates that all property was "previously divided." At the time, the parties had been married for approximately 15 months. The court entered a judgment of dissolution in September 1996 in accordance with the allegations of the co-petition.

After the dissolution, the child lived first exclusively with wife and then, after husband initiated the custody proceeding, alternated between both parties. In January 1998, husband filed a petition for custody of the child. In her response to the petition, wife opposed husband's request for custody and also asked that the court reopen the dissolution case to award her a portion of the value of the residence. She asserted that she had not previously been aware that husband was a part-owner of the residence with Blair but instead had believed that Blair was the sole owner. She alleged that husband and Blair had concealed husband's interest in the residence and that she had an interest in the residence by virtue of the $9,000 she contributed from her Hawaii savings account toward the purchase. In his written response to wife's motion, husband did not request a change in the child's surname.

The trial court bifurcated the issues for hearing. It is unclear whether the entire record in the custody and child support hearing is part of the record in this appeal. Ultimately, the court entered an order in May 1999 determining that the child was a child of the parties. It awarded custody to wife with visitation to husband and ordered husband to pay child support. The order provided that the remaining issues were subject to a further hearing and decision by the court.

In a hearing in March 2000, the parties presented their arguments and evidence from multiple witnesses as to the property division and the residence issues. At that hearing, husband's counsel stated,

"[T]he only other thing, Your Honor, is that we did make a motion some time ago that still hasn't been addressed * * * for a court order ordering [wife] to put [husband's] name on the birth certificate. * * * [W]e have also made a motion that the child be given [husband]'s surname, so I'd like to address that as well while we're here."

Wife's counsel objected, arguing that Jonathan's surname was not at issue. The trial court instructed the parties to file affidavits and memoranda if they desired and commented,

"* * * I don't think I need any testimony. I tell you what I'm gonna do. I'll give each of you what, ten days * * * You can file anything you want, affidavits, memoranda, whatever. I'm not going to have a hearing. You file it to me and I'm going to decide it."

Within the time limit, wife submitted a memorandum regarding her opposition to father's request to change the child's surname. In it, she argued that "this matter is not properly before the court by pleading, motion or otherwise, and the court is without jurisdiction to hear the matter." She also asserted that "[she] has a right to provide testimony on these issues in order to afford due process," and that "there is no evidence upon which the court could find that it is in the child's best interest to change the child's name." Accompanying her memorandum was an affidavit alleging several reasons why, in her view, it would be detrimental to Jonathan to change his name. As far as the record before us shows, husband submitted nothing in response to the court's invitation.

After the hearing, the court ruled that it was reopening the case under ORS 107.452. It found that the residence was "inadvertently omitted from the distribution of the marital estate," because "it seems clear from all the evidence that neither of the parties believed the house purchased by [Blair] was a marital asset." The court said,

"The elaborate alleged gift of $10,000.00 to [wife] on condition that she return $9,000 of it to [husband] for the purchase of the house simply made [wife] a conduit[,] and I don't believe [wife nor husband] believed [wife] had acquired any interest in the property at the time of their divorce."

The court also found that the house was in fact a marital asset and that, during the time the parties lived in the house, they "equally contributed to the marriage in that they both worked, perhaps [wife] more than [husband]." The court awarded wife a portion of the appreciation in value of the house from the time of the purchase until the time of the dissolution. It calculated that the house was purchased for $127,950, that its value was $158,000 in January 2000, and that the value had therefore increased approximately $30,000. It apportioned the appreciation over the time period between February 1996 (when the residence was purchased) and January 2000. Based on the fact that wife left the residence on June 15, 1996, the court awarded wife $652 as her share of the appreciation. It also ordered the change of the child's name, as husband requested.

On appeal, wife makes three assignments of error: (1) the trial court erred in ordering the change of the surname of the parties' minor child to father's surname; (2) the trial court erred in failing to award wife a greater share of the value of the family residence; and (3) the trial court should have awarded wife all of her attorney fees, not just a part. On cross-appeal, husband makes two assignments of error: (1) the trial court erred in reopening the case under ORS 107.452 because both wife and husband knew about the residence at the time that they filed their co-petition for dissolution; and (2) the trial court failed to follow the procedures required by ORCP 68 when it made the award of attorney fees to wife.

We first consider wife's...