Wolf and Taylor, 051070408; A134386.

• Decision Date: 03 December 2008
• Docket Number: 051070408; A134386.
• Parties: Toni WOLF, Petitioner-Appellant, and Sharon TAYLOR, Respondent-Respondent.
• Court: Oregon Court of Appeals

197 P.3d 585

224 Or. App. 245

Toni WOLF, Petitioner-Appellant, and Sharon TAYLOR, Respondent-Respondent.

051070408; A134386.

Court of Appeals of Oregon.

Argued and Submitted May 14, 2008.

Decided December 3, 2008.

Geordie Duckler, Portland, argued the cause and filed the briefs for appellant.

Lisa Almasy Miller, Portland, argued the cause for respondent. With her on the brief was Dwyer & Miller, LLP.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ORTEGA, Judge.^*

LANDAU, P.J.

This is an action to dissolve a domestic partnership. The parties entered into a settlement agreement, which resolved their differences as to all matters in dispute, including visitation rights as to their dog. A month later, plaintiff Wolf notified the court that she was rescinding the agreement and moved to reinstate the matter on the active trial docket. Plaintiff asserted as the ground for rescission the impossibility of performance of an agreement as to visitation rights to a dog. The trial court denied the motion. Plaintiff appeals and we affirm.

The relevant facts are not in dispute. In October 2005, plaintiff filed a complaint for dissolution of a domestic partnership. The complaint alleged that the parties had lived together in a domestic partnership since 1989 and that they had ended the relationship in July 2005. The complaint further alleged that, during the course of the relationship, the parties pooled their resources and acquired property, which plaintiff asked be divided in an equitable manner. Defendant Taylor answered, contesting the existence of a domestic partnership and asserting various defenses and counterclaims. The matter was placed on the court's active trial docket.

On April 6, 2006, the parties participated in a settlement conference with Multnomah County Circuit Court Judge Tennyson. The parties ultimately reached an agreement, which was formalized and signed on August 30, 2006. According to the terms of the agreement, "[t]he parties have negotiated a distribution of assets and debts and have agreed to a settlement of all claims that were or might have been asserted" in the litigation, "arising out of or incurred in connection with their 15-year relationship and their alleged domestic partnership." The agreement provides that each party shall have exclusive ownership and possession of numerous items of personal property, vehicles, savings and checking accounts, investments, retirement accounts, and other assets. The agreement provides that each party is responsible for all debts in her own name (the parties had no joint debts). It also provides that defendant has exclusive ownership of the residence in which the parties had been living. The agreement provides that defendant will pay plaintiff a total of $50,000.

The settlement agreement also includes the following provision concerning the parties' dog, Mike:

"[Defendant] shall have exclusive ownership of the dog known as `Mike' but agrees that [plaintiff] can have visits with him. [Plaintiff] agrees she will not allow Mike to be around other dogs, and she will ensure that he will be kept in an enclosed area, and not allowed to get loose. The specific terms of [plaintiff's] visitation with Mike will be resolved at a later date with the assistance of Judge Katherine Tennyson who agreed to retain jurisdiction of that issue."

And the agreement contains the following severability clause:

"If any of the provisions of this Settlement Agreement and Mutual Release of All Claims are declared or determined by any court to be illegal, invalid, or otherwise unenforceable, the remaining portions, terms and provision[s] shall nevertheless remain in full force and effect."

Following the parties' execution of the agreement, the trial court took the case off the active trial docket and placed it on inactive status. In the meantime, plaintiff developed second thoughts about the agreement. In particular, she became concerned about the provision that pertained to the dog, Mike. Plaintiff fired the lawyer who had represented her up to that point and retained new counsel, who advised her that the dog visitation provision was unenforceable. On September 25, 2006, plaintiff's new lawyer sent a letter to the court and to defendant, informing them that she was rescinding the August 30 settlement agreement and asking the court to place the matter back on active status.

Shortly after that, plaintiff submitted a formal motion to reinstate the dissolution action, followed by a "Memorandum of Points and Authorities on Rescission of Settlement Agreement." In the memorandum, plaintiff explained that there are essentially two grounds for rescinding the settlement agreement in its entirety; both grounds concerned the unlawfulness of the dog visitation provision.

First, plaintiff argued that the dog visitation provision is unlawful because it purports to establish visitation rights to an item of personal property. According to plaintiff, under Oregon law, dogs are personal property, and "[t]here is no common law authority in this state or the entire country that provides for a trial court to grant `custody' or `visitation' to personal property." Second, plaintiff argued that the dog visitation provision is unlawful because it is "impossible to perform." She reasoned that the provision may not be performed because "to maintain a time and interest sharing arrangement between two parties as to `visitation' of a dog" is "incompatible with principles of ownership" and because "there is no reasonable or legal way for them to succeed in accomplishing" its purposes. Defendant responded that, whether or not a court would be authorized to approve a pet visitation arrangement in a dissolution judgment, nothing in Oregon law prevents parties from entering into a private settlement agreement that includes such an arrangement.

The trial court denied plaintiff's motion. The court concluded that the settlement agreement remains in full force and effect and that there are no grounds for reinstating the dissolution action.

On appeal, plaintiff assigns error to the denial of the motion to reinstate the matter on the active trial docket. Reprising her arguments before the trial court about the invalidity of pet visitation provisions in dissolution judgments, she contends that the court incorrectly concluded that the invalidity of the dog visitation provision of the settlement agreement did not establish grounds for rescinding the entire agreement. Defendant responds that, regardless of whether a trial court could have included a pet visitation provision in a dissolution judgment, parties are not precluded from including such a provision in settlement agreements such as the one at issue in this case. In any event, defendant argues, even assuming that the dog visitation provision in this case is unlawful, that would simply trigger the severability provision of the agreement and would not provide grounds for rescission of the agreement in its entirety.

In general terms, it may fairly be said that we review a trial court's decision on a motion to reinstate for an abuse of discretion. See, e.g., Boise Cascade Corp. v. Board of Forestry, 216 Or.App. 338, 356-57, 174 P.3d 587 (2007), rev. den., 344 Or. 390, 181 P.3d 769, cert. den., ___ U.S. ___, 129 S.Ct. 346, 126 L.Ed.2d 46 (2008). But when the exercise of discretion turns on a legal determination, we review that determination as a matter of law. State v. Rogers, 330 Or. 282, 315, 4 P.3d 1261 (2000); Shumake v. Foshee, 197 Or.App. 255, 261-62, 105 P.3d 919 (2005). This is such a case, in which the trial court's decision on plaintiff's motion to reinstate depended on its resolution of the underlying legal question...