Smith v. Koors

• Decision Date: 09 July 1997
• Docket Number: Nos. 15-93-07671,s. 15-93-07671
• Citation: 149 Or.App. 198,942 P.2d 807
• Parties: Susan Diane SMITH, Appellant, v. Gregory Frederick KOORS, Respondent. ; CA A86296.
• Court: Oregon Court of Appeals

Page 807

942 P.2d 807

149 Or.App. 198

Susan Diane SMITH, Appellant, v. Gregory Frederick KOORS, Respondent.

Nos. 15-93-07671; CA A86296.

Court of Appeals of Oregon.

July 9, 1997.

Larry R. Roloff, Eugene, argued the cause and filed the briefs for appellant.

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

Before DEITS, C.J., HASELTON, J. and RICHARDSON, S.J.

RICHARDSON, Senior Judge.

Wife appeals a judgment of dissolution of the parties' marriage, contending that the property division was inequitable, that the spousal and child support awards are inadequate, and that she should have been awarded attorney fees. Husband moves to dismiss the appeal on the ground that it was not taken from the final judgment in the action. ORS 19.010. We deny the motion to dismiss and affirm.

We first address husband's motion to dismiss. The court, in a post-trial opinion, set out its decision on all the issues including the division of property. Regarding the parties' residence, the opinion provided that

"[wife] shall be awarded the residence subject to a judgment in favor of [husband] in the amount [of] $23,500, payable on or before August 1, 1999." (Emphasis supplied.)

On October 6, 1994, the court signed a "Decree of Dissolution of Marriage and Judgment" that was entered October 7, 1994. That judgment, which had been prepared and submitted by husband's trial counsel, was "approved as to form and content" by wife's trial counsel. However, it made no reference to the due date of the equalizing judgment.

On November 2, 1994, the trial court signed and entered an "Amended Decree of Dissolution of Marriage and Judgment." This document was also prepared and submitted by husband's counsel and approved as to form and content by wife's counsel. The amended judgment is complete and identical to the first judgment except that it added language regarding the judgment in favor of husband, that "[n]o execution shall issue on said judgment until August 1, 1999." The consequence of the amendment was to add a reference to a due date of the judgment that had been omitted from the first judgment.

On November 7, 1994, after the amended judgment had been signed and entered by the trial court, wife filed her notice of appeal. The notice stated:

"Plaintiff hereby gives Notice of Appeal from the Decree of Dissolution of Marriage and Judgment in this case on 6th day of October, 1994 * * *."

A copy of the first judgment entered October 7, 1994, was attached to the notice of appeal. The notice does not make any reference to the amended judgment.

ORS 19.029(1)(c) provides that a notice of appeal must include, among other things:

"A notice to all parties or their attorneys as have appeared in the action or proceedings that an appeal is taken from the judgment or some specified part thereof * * *."

As we said in Kent v. Lindstedt, 138 Or.App. 316, 319, 908 P.2d 833 (1995):

"To satisfy that statutory requirement, the appeal must be taken from an appealable judgment, and the notice must contain enough information reasonably to apprise the adverse parties of that fact."

There are essentially two issues raised by husband's motion to dismiss: which of the two judgments is the final appealable judgment, and whether wife's notice of appeal satisfies the statutory requirements of notice.

Husband argues, citing Mullinax and Mullinax, 292 Or. 416, 639 P.2d 628 (1982), that the amended judgment superseded the first judgment and thereby became the only final judgment in the case. He argues that, because wife appealed from a superseded and replaced judgment, she did not appeal from a final judgment and her appeal should be dismissed.

Wife contends that the original judgment was complete and appealable and that the amended judgment merely corrected a clerical error. The amended judgment, she notes, did not expressly vacate the original judgment and, consequently, the original judgment, as amended, is the final judgment in the case. Because she timely appealed from that judgment, wife argues, husband's motion should be denied.

The procedural history of this case is strikingly similar to that of Mullinax, regarding which of two judgments is appealable. In Mullinax, after trial of the dissolution petition, the court issued a memorandum opinion and later signed and entered a dissolution judgment. The parties discovered that the judgment omitted a provision about distribution of the child support payments and they stipulated to entry of an amended judgment correcting the mistake. The wife timely appealed from the amended judgment. The husband moved to dismiss, because the appeal was untimely in relation to the first judgment. The issue was whether the appeal was timely, and depended on determining which document was the final judgment for purposes of calculating the time for filing the appeal.

The Supreme Court rejected the husband's argument that, because the amended judgment was issued only to correct a clerical error, the original judgment was the final one for the purpose of measuring the appeal time. It held:

"This amended decree, with the exception of the modification to the child-support provision, incorporates completely the provisions of the original decree. It neither expressly vacates nor nullifies that prior decree. However, as we now hold, it is the effect of the amendment, rather than its particular form, which is crucial in determining whether time for an appeal should be measured from its entry. Therefore, we conclude that for these purposes, the effect of the entry of this amended decree by stipulation of the parties was to supersede and replace the original decree." 292 Or. at 432, 639 P.2d 628. (Emphasis in original.)

On the basis of that analysis, the court concluded that the wife's appeal was timely because it was filed within 30 days from the only judgment in the case, the amended judgment.

In this case, wife makes arguments similar to those advanced by the husband in Mullinax and rejected by the Supreme Court. On the basis of the Supreme Court's analysis, we conclude that the amended judgment superseded the original judgment and became the only judgment in the case.

Here, unlike in Mullinax, the notice of appeal was timely from either of the judgment documents. Consequently, the next inquiry is whether wife's notice of appeal was sufficient under ORS 19.029(1)(c). Husband argues that it is not because it designates the wrong judgment, the wrong judgment date and attaches a non-final judgment. Wife argues that, under several of our cases, the notice is sufficient and that husband was not prejudiced.

The notice of appeal named the proper adverse party and notified him and the court that wife appealed from a judgment in the case. A notice of appeal is not jurisdictionally defective because it attaches the wrong document or incorrectly identifies the date of the proper judgment if there is in fact a final judgment. State v. Etchison, 142 Or.App. 396, 921 P.2d 1333 (1996), rev. den. 324 Or. 654, 931 P.2d 796 (1997); Grant County Federal Credit Union v. Hatch, 98 Or.App. 1, 777 P.2d 1388, rev. den. 308 Or. 592, 784 P.2d 1099 (1989); Werline v. Webber, 54 Or.App. 415, 635 P.2d 15 (1981), rev. den. 292 Or. 450, 644 P.2d 1128 (1982). The notice is sufficient if it contains enough information to reasonably apprise the adverse parties that an appeal is being taken from an appealable judgment. Kent v. Lindstedt.

Here, although wife's notice of appeal designated an incorrect date for the judgment and attached a superseded document, it named the adverse party and clearly indicated that she intended to appeal from the final judgment in the case. Husband could not have been misled or prejudiced. The motion to dismiss the appeal is denied.

We turn to wife's appeal. She contends that the court's property distribution was inequitable, that the spousal and child support awards are inadequate and that she should have been awarded attorney fees.

The parties were married in 1976. At the time of trial, husband was 45 and wife 46. They have two children; an 18-year-old who is emancipated, and an 8-year-old son, Nathan, a Down's Syndrome child who has multiple health problems. Husband, after becoming disabled while working as a bus driver, returned to college and, in 1990, acquired his chiropractic license and opened a practice in Eugene. His gross income from the practice is about $2,500 per month.

The parties lived apart during the time husband was in college and permanently separated in 1990. After the separation, wife attended school and became a licensed massage therapist. The trial court found that she could earn $600 per month taking into consideration that she would only work part time in order to spend time with Nathan, who was in her custody.

The court awarded wife the parties' residence with a net value of $83,500. It awarded husband his chiropractic practice and an equalizing judgment of $23,500 to be paid by August 1, 1999. Husband is required to pay child support of $306 per month. Wife was awarded $435 per month spousal support for five years and then $250 per month for an additional three years. Husband must pay 75 percent of all medical costs for Nathan that are not otherwise covered by insurance.

Wife's principal argument regarding the property division is that she will have to sell the real property in order to pay the $23,500 judgment to husband. Wife presently has the residence rented for $750 per month. She contends that the court should have taken into account the costs of sale and the effects of capital gains taxes in evaluating the award of property. We have held that consideration of the tax consequences and the costs of selling real property is not appropriate unless a sale of the property is contemplated. Follansbee and Ackerman, 115 Or.App. 39, 836 P.2d 763 (1992). There was no evidence of an impending sale of the residence or of the costs of sale and tax consequences. The trial...