In re Marriage of Cowles, A175100

CourtCourt of Appeals of Oregon
Writing for the CourtTOOKEY, P. J.
Citation322 Or.App. 741
PartiesIn the Matter of the Marriage of Joseph P. COWLES, Petitioner-Appellant, and Lorna R. FLORMOE-COWLES, Respondent-Respondent.
Docket NumberA175100
Decision Date23 November 2022

322 Or.App. 741

In the Matter of the Marriage of Joseph P. COWLES, Petitioner-Appellant, and Lorna R. FLORMOE-COWLES, Respondent-Respondent.

A175100

Court of Appeals of Oregon

November 23, 2022


Argued and submitted October 12, 2022.

Lane County Circuit Court 150713860, Amit K. Kapoor, Judge.

George W. Kelly argued the cause and fled the briefs for appellant.

Laura E. Coffn argued the cause and fled the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

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[322 Or.App. 742] TOOKEY, P. J.

Father appeals from a supplemental judgment of the trial court entered on November 24, 2020, finding him in remedial contempt of parenting time requirements of a 2017 supplemental judgment, and from a supplemental judgment awarding mother her attorney fees based on the determination of contempt.[1] Father raises three assignments of error, arguing that the trial court (1) erred in finding him in contempt without including an explicit finding that he acted willfully; (2) erred in finding him in contempt in the absence of sufficient evidence; and (3) erred in awarding mother attorney fees. We agree with father that the supplemental judgment of remedial contempt is defective because it lacks the required finding of willfulness. We therefore vacate and remand the supplemental judgment of remedial contempt as well as the supplemental judgment awarding attorney fees.

A determination of remedial contempt is subject to the provisions of ORS 33.015,[2] which states that a person commits contempt of court by willfully disobeying a court order or judgment. As we held in State v. Nicholson, 282 Or.App. 51, 62, 383 P.3d 977 (2016), a person acts "willfully" for purposes of ORS 33.015(2) if the person acts "intentionally and with knowledge that [the act or omission] was forbidden conduct."

The trial court's judgment states, simply, that "[father] is in contempt of court." Father asserts in his first assignment that the judgment is defective, because the trial court failed to make an explicit finding that father acted "willfully." See Southworth and Southworth, 113 Or.App. 607, 610, 835 P.2d 122 (1991), rev den, 314 Or. 574 (1992) (holding that a contempt judgment must be supported by "specific

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[322 Or.App. 743] findings," including a finding that the violation of the court's order was "willful").

Mother responds that the assignment of error is not preserved, because father failed to advise the trial court that it was required to make a specific finding of willfulness. Mother concedes that father argued to the trial court that, as a substantive matter, the evidence must show that the contempt was willful, but she contends that that argument was not sufficient to preserve a challenge to the procedural failure to make a specific finding. See Peeples v. Lampert, 345 Or. 209, 191 P.3d 637 (2008) (requiring preservation of a challenge based on the trial court's failure to make mandated specific findings).

We have reviewed the transcript of the parties' hearing. Father's counsel argued to the trial court: "An order finding contempt must be supported by specific findings of fact, including a finding that the violation was willful." Thus, father's counsel did advise the court that a specific finding of willfulness was required. We conclude that that argument was sufficient to constitute a request for specific findings and to satisfy the twin preservation goals of ensuring procedural fairness and judicial efficiency. Id. at 222.[3]

Moving on to the merits of father's first assignment, we conclude that father is correct that, under our caselaw,

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[322 Or.App. 744] a determination of remedial contempt must be supported by a specific finding of willfulness. As we held in Southworth, 113 Or.App. at 610, a contempt judgment must be supported by "specific findings," including a finding that the...

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