455 P.3d 1006
Or. Ct. App.2019Background
- Parties divorced in California; the California court declined to decide custody because the child did not reside in California. Father filed an initial custody, parenting time, and support petition in Clackamas County, Oregon.
- Father’s petition (captioned under ORS 109.103) requested attorney fees and cited ORS 109.155(4) (a provision for parentage proceedings), an incorrect statutory source for fees in this custody case. Mother’s response likewise cited ORS 109.155.
- The Oregon court assumed jurisdiction under the UCCJEA and applied ORS chapter 107, conducted a hearing, found mother primarily responsible but found severe parental alienation, ordered reunification therapy, and deferred final parenting time.
- Father moved for attorney fees under ORCP 68; his fee petition cited other statutes (ORS 107.105 and ORS 109.103) but not ORS 107.135(8) (the applicable post-dissolution custody-fee provision).
- The trial court concluded fees were warranted on the merits but denied awarding them because the petition did not allege the correct statutory basis, stating it lacked authority; it noted it would have awarded $43,575 if it had authority.
- The Court of Appeals reversed, holding ORS 107.135(8) authorized fees here and that the petition adequately pleaded facts supporting a fee award and fairly alerted mother to the request with no prejudice.
Issues
| Issue | Al-Ani (Plaintiff) Argument | Wafeek (Defendant) Argument | Held |
|---|---|---|---|
| Whether the court had statutory authority to award attorney fees for this initial custody proceeding after an out-of-state dissolution | ORS 107.135(8) applies to orders made post-dissolution for children omitted from the foreign judgment; therefore the court could award fees | No authority to award fees because father did not plead the correct statutory source | Held: Yes. ORS 107.135(8) authorizes fee awards in this situation |
| Whether father’s petition sufficiently pleaded entitlement to fees under ORCP 68 C(2)(a) despite citing the wrong statute | Pleading was adequate under Page: facts pleaded satisfied statutory criteria, mother was alerted to the fee request, and no prejudice resulted | Pleading failed to allege the correct statutory basis so fees cannot be awarded | Held: Petition adequate—alleged facts met the elements for a fee award, parties were alerted, and no prejudice; trial court erred in denying fees |
| Whether mother waived any objection to the incorrect statutory citation by citing the same statute or failing to object before trial | Father: mother waived objection under ORCP 68 C(2)(d) because she did not timely object and cited the same statute | Mother: preserved objection | Held: Court declined to decide waiver because the trial court was not given an opportunity to consider waiver; appellate opinion does not rule on waiver |
Key Cases Cited
- Page v. Page, 103 Or App 431 (1990) (articulates ORCP 68 standard: fees may be awarded when pleaded facts support award, parties were alerted, and no prejudice)
- Mulier v. Johnson, 332 Or 344 (2001) (pleading requirements for fee awards under ORCP 68 are mandatory)
- Rymer v. Zwingli, 240 Or App 687 (2011) (when source is statutory, pleadings must allege the facts necessary to meet statutory criteria)
- Weitman Excavation, LLC v. CPM Dev. Corp., 276 Or App 583 (2016) (standard of review for a trial court’s legal conclusion about its authority to award fees)