In re the Marriage of Maresh

87 P.3d 1154, 193 Or. App. 69, 2004 Ore. App. LEXIS 444
CourtCourt of Appeals of Oregon
DecidedApril 14, 2004
Docket00-3032; A119156
StatusPublished
Cited by1 cases

This text of 87 P.3d 1154 (In re the Marriage of Maresh) 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 Maresh, 87 P.3d 1154, 193 Or. App. 69, 2004 Ore. App. LEXIS 444 (Or. Ct. App. 2004).

Opinion

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.1 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 fall amount of the money judgment, and respondent petitioned for a sheriffs 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 (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 P3d 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.

[72]*72Petitioner’s argument presents the question whether, for purposes of ORS 107.105(5), an order authorizing a sheriffs 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 P2d 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.2 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 (stating that “[petitioner appeals from that order. See ORS 19.205(2)(c).”).

More precisely, then, the issue is whether an appeal-able 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.3

[73]*73However, 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. 4 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, pp 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, pp 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), pp 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 [74]*74of 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.

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Related

In Re the Marriage of Berry
271 P.3d 128 (Court of Appeals of Oregon, 2012)

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Bluebook (online)
87 P.3d 1154, 193 Or. App. 69, 2004 Ore. App. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-maresh-orctapp-2004.