In re the Marriage of Praegitzer

620 P.2d 979, 49 Or. App. 981, 1980 Ore. App. LEXIS 4027

Opinion

WARDEN, J.

This is an appeal from an order awarding respondent a judgment for attorney’s fees. The proceeding was instituted by the personal representative of petitioner’s estate on a motion to set aside the decree dissolving the marriage of appellant’s decedent and respondent. The motion was filed pursuant to ORS 18.160 on the grounds that the decree of dissolution was entered through the parties’ inadvertence and excusable neglect.

Respondent relies on ORS 107.405 to support the award to her of attorney’s fees. ORS 107.405 provides:

"When a court is sitting in proceedings for annulment or dissolution of a marriage, or for separation, it shall have full equity powers.”

We hold that ORS 107.405 does not authorize an award of attorney’s fees in a proceeding to set aside a decree of dissolution brought under ORS 18.160, because there is no statutory authorization for the award of attorney’s fees in proceedings brought pursuant to that section.¹ See Kucken-berg v. Kuckenberg, 252 Or 647, 452 P2d 305 (1969).

Reversed.

1 The trial court considered the motion to set aside the decree, although brought pursuant to ORS 18.160, to be in substance a motion to modify the decree and awarded attorney fees, apparently, pursuant to ORS 107.135(3). This position is not urged by respondent on appeal.