In re the Marriage of Johnson

367 P.3d 952, 276 Or. App. 408, 2016 Ore. App. LEXIS 154
CourtCourt of Appeals of Oregon
DecidedFebruary 10, 2016
DocketC102470DRC; A155270
StatusPublished
Cited by4 cases

This text of 367 P.3d 952 (In re the Marriage of Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Johnson, 367 P.3d 952, 276 Or. App. 408, 2016 Ore. App. LEXIS 154 (Or. Ct. App. 2016).

Opinion

HADLOCK, C. J.

This case involves two joined claims: wife’s petition for the dissolution of her marriage to husband and wife’s claim for a declaratory judgment regarding certain matters involving herself and husband’s mother (Ewing). The trial court entered a general judgment of dissolution that resolved both claims on the merits. It later entered a supplemental judgment that, among other things, awarded Ewing $10,000 in attorney fees but denied her request for costs and an enhanced prevailing party fee. On appeal from the supplemental judgment, Ewing raises two assignments of error. First, she argues that the trial court’s award of $10,000 in attorney’s fees — substantially less than she had requested — was premised on erroneous legal reasoning. Second, she argues that the trial court was required to, but did not, award her costs and disbursements and a prevailing party fee. We reject Ewing’s first assignment of error without further written discussion. As to her second assignment of error, we conclude that Ewing has not identified any way in which the trial court erred when it denied her request for costs and a prevailing party fee. Accordingly, we affirm.

The relevant historical facts are not disputed. For more than 30 years, husband and wife lived on property (which the general judgment refers to as Tax Lot 400) in North Plains, Oregon. That property was owned by Ewing. The trial court found that husband and wife entered into the following agreement with Ewing in 2010:

“[Ewing], her husband, [husband] and [wife] all met and agreed that [husband and wife] could build a new house on the property that they had been living on for many years if they would pay the insurance and property taxes, since the new house would probably raise the taxes.”

That finding rejected an allegation that wife had included in her dissolution petition, in which she claimed that Ewing had agreed that “the property would be transferred to [husband and wife]” in exchange for their expenditures for improvements to the property and their payment of property taxes.

[411]*411Based on her characterization of the agreement about Tax Lot 400, wife amended the dissolution petition by adding a claim for a declaratory judgment to determine “the rights, responsibilities, ownership and status of the parties” with respect to Tax Lot 400 and naming Ewing as a respondent to that claim. Wife’s theory was that, because she and husband had performed their obligations under the agreement, they had jointly acquired a property interest in Tax Lot 400 that was “subject to division in their pending divorce case.” The parties asked to have the case tried to a reference judge as allowed by ORS 3.305, and they agreed that “the compensation of the reference judge and the expenses of the trial before the reference judge shall be borne equally by the parties, each party being responsible for one third of the compensation and expenses.”

During depositions, wife said that she could not remember any details of the alleged agreement to transfer the property to the married couple. The reference judge subsequently concluded that, although Ewing had agreed to give husband and wife a tenancy in Tax Lot 400, there was no evidence of an agreement to transfer that property to the couple. The reference judge prepared a final judgment and the presiding judge ordered it entered as the final judgment of the trial court. That judgment stated that “[w]ife claimed an interest in * * * Tax Lot 400” and that “ [n] either Husband nor Wife is awarded any interest in this real property and residence.” The judgment also dissolved the parties’ marriage and resolved issues of property division and spousal support.1

All three parties filed statements of attorney fees and costs.2 Ewing argued that she was entitled to $21,670.00 for attorney fees, $4,310.50 for costs and disbursements, a $5,000.00 enhanced prevailing party fee, and $6,000.00 for her attorney’s post-judgment work. The request for costs and disbursements included $304.00 for a first appearance [412]*412fee, $6.50 to obtain document copies, and $4,000.00 for the costs of the reference judge and the court reporter. Ewing argued that she was “entitled to recover costs and disbursements as the prevailing party pursuant to ORS 20.077 and ORCP 68.” Her statement also acknowledged that the trial court had “discretion in determining the actual amount of the prevailing party fee.”

Wife filed objections and argued, among other things, that “[p] revailing party fees are not available in a case of this nature,” that is, in a dissolution proceeding. After a hearing, the trial court issued a letter opinion awarding Ewing $10,000 in attorney fees. The letter did not specifically address Ewing’s request for costs, except to say that “[t]he payment of the costs of the reference judge and court reporter are not changed by this decision. Each party is responsible for their share as set forth in that original agreement.”

Even though the letter opinion did not award costs, Ewing prepared a proposed supplemental judgment that would have required wife to pay the entire $9,310.50 that Ewing had requested, including a $5,000.00 enhanced prevailing party fee. Wife objected to the form of that judgment, arguing that it was inconsistent with the court’s letter opinion. Ewing filed a reply in which she acknowledged that the trial court had not made “any ruling regarding costs and a prevailing party fee,” but argued that ORCP 68 B entitled her to some award of costs and disbursements. In an attached letter to the trial court, she asserted that the award of $10,000 of attorney fees was “inadequate” and that “some further ruling on the issue of costs and the prevailing party fee needs to occur.”

During a subsequent hearing, the following exchange occurred:

“ [EWING’S ATTORNEY]: So then I think there’s also the issue of costs. [Wife] has objected to that. You didn’t rule here on costs, but we are, as a matter of law, entitled to costs, and I included those, and I understand [wife] is objecting.
<C*. %***
[?]*?“I think that, though, I want to be clear, that we’re not — I’m not really asking or suggesting that you should award both [costs and attorney fees]. I think you ought to just give [Ms. Ewing] her reasonable fees. They are pretty darn close to $27,000.1 think that ought to be substantially more than approximately a third of them, and if you were to do that, this prevailing party issue — fee issue of $5,000 simply goes away and we’re willing to—
“THE COURT: It’s not allowed in a case like this, is it?
“[EWING’S ATTORNEY]: Well, that’s an interesting question.
“THE COURT: Well, I’m looking at what [wife’s attorney] has filed. It says prohibits prevailing fees.
“[EWING’S ATTORNEY]: But [Ms. Ewing] is not a party to this matter. This isn’t a dissolution of marriage proceeding against her. This is—
“THE COURT: What is it?
“[EWING’S ATTORNEY]: It’s a civil claim against her, where [wife] was asking you to order her to transfer property, her property.

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Cite This Page — Counsel Stack

Bluebook (online)
367 P.3d 952, 276 Or. App. 408, 2016 Ore. App. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-johnson-orctapp-2016.