MARRIAGE OF MARESH

• Citation: 193 Or. App. 69,87 P.3d 1154
• Parties: In the Matter of the MARRIAGE OF Douglas MARESH, Appellant, and Kathy Adele Maresh, Respondent.
• Decision Date: 14 April 2004
• Court: Court of Appeals of Oregon

87 P.3d 1154

193 Or. App. 69

In the Matter of the MARRIAGE OF Douglas MARESH, Appellant, and

Kathy Adele Maresh, Respondent.

00-3032; A119156.

Court of Appeals of Oregon.

November 10, 2003.

November 25, 2003.

Decided April 14, 2004.

Patricia D. Gaw, Winston, for petition.

Barry Adamson, contra.

Before BREWER, Presiding Judge, and DEITS, Chief Judge,¹ and LINDER, Judge.

On Respondent's Petition for Attorney Fees November 10, 2003.

Appellant's Objections to Respondent's Petition for Attorney Fees November 25, 2003.

BREWER, P.J.

Respondent seeks an award of attorney fees after prevailing in petitioner's appeal of a trial court order authorizing the sale of the parties' former marital residence.² ORS 107.105(5). We grant respondent's petition for attorney fees.

The parties' marriage was dissolved by a judgment entered in January 2001. The judgment awarded the marital residence to petitioner, and it awarded respondent an offsetting money judgment secured by a judgment lien against the residence. Petitioner failed to pay the full amount of the money judgment, and respondent petitioned for a sheriff's sale of the residence. See former ORS 23.445 (1981), renumbered as ORS 18.536 (2003) (providing procedure for obtaining order authorizing sale of residential property). Petitioner objected that the property was exempt from execution under ORS 23.240 (2001), renumbered as ORS 18.395 in 2003. The trial court disagreed and ordered the sale. On appeal, we affirmed the order and awarded respondent costs. Maresh and Maresh, 190 Or.App. 228, 235, 78 P.3d 157 (2003). Respondent seeks attorney fees on appeal under ORS 107.105(5). That statute provides:

"If an appeal is taken from the judgment or other appealable order in a suit for annulment or dissolution of a marriage or for separation, and the appellate court awards costs and disbursements to a party, it may also award to that party, as part of the costs, such additional sum of money as it may adjudge reasonable as an attorney fee on the appeal."

Petitioner argues that the statute does not authorize an award of attorney fees in the present circumstances. He contends that the phrase "judgment or other appealable order in a suit for annulment or dissolution of a marriage" limits our authority to award attorney fees to appeals from appealable prejudgment orders or the final judgment by which a marriage is annulled or dissolved.

Petitioner's argument presents the question whether, for purposes of ORS 107.105(5), an order authorizing a sheriff's sale on execution of a judgment of dissolution is an "appealable order in a suit for annulment or dissolution of a marriage." In making that determination, we look to the text of the statute in context and, if necessary, to legislative history and other interpretive aids. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993).

We summarily dispose of the question whether the order for sale of the residence was an "appealable order." Although the legislature has not defined that term in ORS chapter 107, ORS 19.205(2)(c) (2001), amended by Or. Laws 2003, ch. 576, § 85, provided that a "final order affecting a substantial right, and made in a proceeding after judgment or decree" may be reviewed on appeal.³ Petitioner understandably does not assert that the order authorizing the sale was not appealable. After all, it is he who appealed from it. Our decision on the merits in this appeal reflects our own determination that the order was appealable. See Maresh, 190 Or.App. at 231, 78 P.3d 157 (stating that "[p]etitioner appeals from that order. See ORS 19.205(2)(c).").

More precisely, then, the issue is whether an appealable post-judgment order for execution of a money judgment entered as part of a dissolution judgment is an appealable order "in a suit" for dissolution of marriage. ORS chapter 107 does not define "suit" or provide other explicit guidance as to the scope of proceedings that are encompassed within a suit.⁴

However, prior versions of the execution statutes and cases applying those statutes suggest that the legislature intended that judgment enforcement proceedings be considered part of the underlying action for purposes of ORS 107.105(5). The statute governing the award of attorney fees on appeal in dissolution actions was enacted in 1953. Or. Laws 1953, ch. 553, § 2.⁵ We therefore look to the statutes in effect in that year and earlier years for interpretive guidance. The Deady Code of 1862 provided that "[t]he party in whose favor a judgment is given, which requires the payment of money, the delivery of real or personal property, or either of them, may at any time after the entry thereof have a writ of execution issued for its enforcement * * *." General Laws of Oregon, Civ. Code, ch. III, § 271, p. 162 (Deady & Lane 1843-1872). The Deady Code did not distinguish between real and personal property. Id. at § 273(1), p. 162. If the underlying judgment was less than five years old, no supplemental judicial proceeding was required for the writ to issue. Id. at § 273, p. 162-63. However, if at least five years had elapsed after the entry of judgment, the judgment creditor was required to obtain an order for execution. Id. at § 292, p. 168-69. The order could be entered only after the judgment debtor had an opportunity to be heard with respect to the proposed execution. Id. at § 292(2)-(4), p. 168-69. The Code provided that "[t]he order shall specify the amount for which execution is to issue, or the particular property, possession of which is to be delivered; it shall be entered in the journal and docketed as a judgment, and a roll thereafter prepared and filed, or a final record made of the proceedings, as the case may be in the same manner as a judgment." Id. at § 292(6), p. 169.

Early case law construing section 292 was inconsistent as to whether judgment execution proceedings were part of the action in which the judgment was entered. In Ladd v. Higley, 5 Or. 296, 298 (1874), the Supreme Court held that, because an order on execution had to be docketed as a judgment, proceedings under section 292 constituted a separate action. The following year, however, the court decided Strong v. Barnhart, 5 Or. 496 (1875). In that case, the plaintiff sought to enforce a judgment that had been entered 19 years earlier. The defendant argued that enforcement of the judgment was barred by the applicable statute of limitations. In resolving that issue, the court explained:

"[A]t what time does the `cause of action accrue?' It must be as soon as the judgment is entered; and if a person obtaining a judgment can sue it over once, there is no limit to the number of actions that may be maintained on each succeeding judgment. The effect of giving this construction to the statute is a strong argument against it. The means provided by the statute for enforcing a judgment is by execution, which may be issued at any time within five years of the rendition of the judgment, after which time it can only be enforced by obtaining leave to issue an execution as provided in § 292 of the code. To hold that an action can be maintained on a domestic judgment would be inconsistent with the whole theory of our statute, which entirely excludes the idea of any such a proceeding, and in fact the action of debt upon judgment had fallen into disuse at common law and was discontinued by the courts at the time Blackstone wrote."

Id. at 499-500. In other words, the enforcement proceeding was part of the original action; it was not a new or separate action.

In Pursel v. Deal, 16 Or. 295, 300, 18 P. 461 (1888), the court appeared to reverse course again by referring to the plaintiff's right to execution on a judgment as a "cause of action." However, in Eddy v. Coldwell, 23 Or. 163, 31 P. 475 (1892), the court reaffirmed its decision in Strong. It stated:

"It is true that [the court in Pursel] spoke of the proceeding by motion under the statute as a `cause of action,' but by that was only meant that a party in whose favor a judgment had been given had the right to institute proceedings by motion to obtain an order to issue execution upon a dormant judgment."

Eddy, 23 Or. at 170, 31 P. 475.

In 1893, the legislature repealed section 292 and, in its place, enacted the following provision:

"If, at any time after the entry of judgment, a period of ten consecutive years shall have elapsed without an execution being issued on such judgment during such period, no execution shall thereafter issue on such judgment, and such judgment shall thereafter be conclusively presumed to be paid and satisfied unless an execution be issued thereon within one year from the passage of this act."

The Codes and Statutes of Oregon, title III, ch. IV, § 241 (Bellinger & Cotton 1901). In construing that statute, the Supreme Court in effect concluded that execution proceedings were part of the action in which the judgment was entered. See In re Barker, 83 Or. 702, 710, 164 P. 382 (1917) ("[T]he clerk is required to issue the writ and direct it to the sheriff. Hence it is not a judicial function in any sense of the word, but purely ministerial at the request of a party.").

The execution statutes remained materially unchanged until 1953, when the legislature enacted ORS 107.105(5). By then, the understanding that judgment execution proceedings are part of the underlying action was well established. A contemporary legal dictionary defined "execution of judgment or decree" as "[t]he last stage of a suit, whereby possession is obtained of anything recovered." Black's Law Dictionary 678 (4th ed. 1951) (emphasis added). We presume that the legislature was aware of that meaning when it enacted ORS 107.105(5). See Gaston v. Parsons, 318 Or. 247, 253, 864 P.2d 1319 (1994)

(stating rule that statutory terms that have a well-defined legal meaning are to be given that meaning when construing a statute); State v. Clevenger, 297 Or. 234, 244, 683 P.2d 1360 (1984) (stating...