Lamm v. Lamm

416 P.3d 310, 290 Or. App. 351
CourtCourt of Appeals of Oregon
DecidedFebruary 22, 2018
DocketA162329
StatusPublished
Cited by1 cases

This text of 416 P.3d 310 (Lamm v. Lamm) 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
Lamm v. Lamm, 416 P.3d 310, 290 Or. App. 351 (Or. Ct. App. 2018).

Opinion

TOOKEY, J.

*352Respondent appeals a judgment that found him in contempt, imposed a sanction of 24 months of bench probation, and awarded respondent's real property to petitioner.1 In his first assignment of error, respondent contends that the court plainly erred when it imposed a determinate term of bench probation in a remedial contempt proceeding because a determinate term of probation is a punitive sanction. In his second assignment, respondent argues that the trial court erred by awarding his real property to petitioner "because it was not a lawful remedial sanction, * * * and it impermissibly modified a previous property division" in the dissolution judgment.2 We agree with respondent that the trial court plainly erred by imposing a determinate term of probation, and that it also erred by awarding respondent's real property to petitioner. Accordingly, we reverse the imposition of those sanctions and remand for reconsideration.

Respondent and petitioner divorced on July 27, 2015. In the dissolution judgment, petitioner's award included $1,000 per month in spousal support, and an "equalizing judgment" of $34,000 to be paid at $641.62 per month secured by a promissory note and trust deed. The court also ordered respondent to pay certain marital debts and petitioner's attorney fees. Respondent's award included real property in Adrian, Oregon valued at $55,310.

Respondent subsequently failed to pay petitioner any spousal support, failed to pay petitioner any equalization payments, failed to sign the promissory notes and deeds of trust, and failed to pay the marital debts pursuant to the dissolution judgment. Petitioner filed a motion for an order for respondent *312to show cause why he should not be found in contempt for failing to comply with those orders in the *353dissolution judgment.3 In that motion, petitioner requested that respondent be sanctioned by imposing six months' incarceration in the county jail and a $1,000 fine. Additionally, as an alternative sanction, petitioner requested "the court to modify the terms of the general judgment entered in the divorce case" so that she would receive respondent's real property in Adrian, Oregon. In his written response, respondent raised the affirmative defense of an inability to pay because he was unemployed, had exhausted his unemployment benefits, and was receiving only $1,202 per month in social security. Additionally, respondent relied on Dornbusch and Dornbusch , 195 Or. App. 61, 96 P.3d 877 (2004) to argue that "the court is without the statutory authority to modify the property distribution set forth in the General Judgment" as a sanction for remedial contempt.

The trial court concluded that respondent had the ability to pay, and found respondent "in remedial contempt" for the following violations of the judgment of dissolution: "Failure to pay spousal support; Failure to pay the equalization payment of $641.[6]2 per month; Failure to sign the promissory notes and deeds of trust; [and] Failure to pay marital debt pursuant to the General Judgment." The court imposed an indeterminate six-month jail term, a 24-month determinate term of probation, and awarded petitioner "all, right, title, and interest in the real property" in Adrian, Oregon.4

On appeal, in his first assignment of error, respondent contends that the trial court plainly erred when it imposed a determinate 24-month term of probation in a remedial contempt proceeding. We may review an unpreserved error as one that is "apparent on the record" under ORAP 5.45(1) if certain conditions are met:

"(1) the error is one of law; (2) the error is apparent, in that the legal point is obvious, not reasonably in dispute; and *354(3) the error appears on the face of the record, such that we need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable."

State v. Reynolds , 250 Or. App. 516, 519-20, 280 P.3d 1046, rev. den. , 352 Or. 666, 293 P.3d 1045 (2012) (brackets, internal quotation marks, and citation omitted).

There is no dispute that this is a remedial contempt proceeding because it was instituted and litigated by petitioner, "[a] party aggrieved by an alleged contempt of court." ORS 33.055(2)(a). We have consistently held that it is plain error to impose a determinate term of probation in a remedial contempt proceeding. See State v. Gardner , 287 Or. App. 225, 227, 401 P.3d 292 (2017) (trial court committed plain error by imposing a determinate term of probation because that sanction is punitive, not remedial); Altenhofen and Vanden-Busch , 271 Or. App. 57, 61-62, 349 P.3d 655, rev. den. , 358 Or. 449, 366 P.3d 719 (2015) (same). Accordingly, we conclude that the trial court plainly erred by imposing a determinate term of probation. We further conclude, for the reasons expressed in Altenhofen , that it is appropriate to exercise our discretion to correct the error. Id . at 62, 349 P.3d 655 (concluding that the interests of the parties, the gravity of the error, and the ends of justice required correction of the error).

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Bluebook (online)
416 P.3d 310, 290 Or. App. 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamm-v-lamm-orctapp-2018.