The Oregon Divorce Blog » Attorney Fees

New Case Law – Unmarried Domestic Partnership

Daniel Margolin — Thu, 31 Dec 2009 04:21:00 +0000

On December 23, 2009, the Oregon Court of Appeals filed its decision in Baker and Andrews, a dissolution of domestic partnership case. The entire opinion can be found here: http://www.publications.ojd.state.or.us/A135564.htm.

Baker and Andrews were an opposite sex couple who lived together for many years. Baker appealed the trial court’s order that no domestic partnership existed and from an order of the court awarding Andrews sanctions against both Baker and her attorney. The court of appeals agreed with the trial court with respect to its ruling that no domestic partnership existed, but reversed the trial court with respect to its ruling on sanctions.

They lived together for 24 years, and shared a home and bed and raised their own separate children to adulthood in the home during that time. They maintained separate bank accounts. Baker did some work outside of the home and Andrews owned a business (that Baker did some work for without pay). Baker also worked as a homemaker. They had no agreement as to their financial relationship. Andrews added Baker to the title on the house in 1994, but Baker then signed a quitclaim deed releasing her interest in the home in 2004. She also filed for SSI disability, stating in her application that she did not expect anything from the home and that she lives financially separately from Andrews.

The trial court did not find Baker to be credible, a finding upon which the court of appeals must rely.

Oregon does not recognize common law marriage. Under the court’s decision in Beal and Beal and subsequent cases, however, Oregon has a body of case law that recognizes that where parties intend to create a domestic partnership that the court can then equitably divide their property and debts. The court of appeals describes this as follows: “In general, an equitable property division on dissolution of domestic partnership is appropriate where the parties’ intent to share assets and expenses is shown by evidence that they have jointly purchased, built, or maintained property, held joint accounts, and made substantial economic and noneconomic contributions to the household for mutual benefit.” There cannot be an award of spousal support, nor can there be a claim for attorney fees made in such a proceeding.

Here the court of appeals found that there was insufficient evidence of financial commingling sufficient to support Baker’s claim of the existence of a domestic partnership.

Even though a party has no entitlement to attorney fees in this form of proceeding, if the other party files a frivolous case then the offended party can seek sanctions under Oregon Rule of Civil Procedure 17. The court of appeals did not reach the issue of whether the filing was in fact frivolous, because it decided that the trial court’s manner of assessing sanctions was legally improper. The matter was remanded to the trial court to decide if sanctions were warranted under ORCP 17.

New Case Law – an Oregon divorce lawyer’s take on why NOT to harass your spouse post separation (and a few other issues)

C. Sean Stephens — Tue, 17 Mar 2009 05:02:33 +0000

On March 4, 2009, the Oregon Court of Appeals published an opinion in Boyd and Boyd. In the Boyd case, wife appealed from a divorce judgment, claiming the trial court erred in dividing the marital property, awarding husband attorney fees, and in the amount of her spousal support award. The parties had been married 30 years, and had been gifted substantial monies during the marriage from wife’s family. Husband was making $4000 per month at the time of the dissolution, and wife was not working, nor did she work during the marriage. Wife also received by inheritance real estate worth approximately $133,000. The trial court included wife’s inherited property in the property distribution and awarded it to wife (rather than awarding it as wife’s separate property). The court’s original math had wife receiving approximately $15,000 more in property than husband. The trial court also awarded husband $13,274.70 in attorney fees, and gave wife $200 per month indefinite spousal support. The trial court’s logic was that wife would receive reduced spousal support and the long half of the property in exchange for not having to pay an equalizing judgment.

Both parties made corrections to the trial court’s letter opinion. The brickyard property and husband’s retirement had been substantially overvalued. The trial court’s new math resulted in wife receiving $50,000 more in property than husband, however, the court still did not order an equalizing judgment to be paid.

The Court of Appeals disagreed with the trial court’s inclusion of the inherited property in the distribution, and excluded it as wife’s separate property. The court noted that excluding the property produced a more equal distribution.

The Court of Appeals also disagreed with the trial court that $200 per month of spousal support was adequate in a long term marriage. The court raised wife’s support award to $750 per month and noted that the primary goal of spousal support in a long term marriage is for the receiving spouse to enjoy a standard of living not overly disproportionate to that enjoyed during the marriage. The effect of the increase in spousal support was to eqalize husband and wife’s post divorce income, assuming that wife could earn minimum wage.

The court upheld husband’s award of attorney fees against wife. We previously blogged about the analysis the court uses in determining if one party should pay the other’s fees, and if so, how much. The Boyd court focused on wife’s post separation conduct. Wife was angry, and had left about 700 messages on husband’ s answering machine in the 16 months between separation and trial. Many of them were threats that she would make this expensive, that she would not settle and would then appeal, and that husband could not afford to fight her. Many of the messages ended up as an exhibit in court.

This is an interesting case for several reasons. First, the trial court’s math and analysis were flawed, and the result at the court of appeals may have been different had the trial court not changed its ruling. Help your attorney get accurate values on assets, accounts, and debts so they can get good information to the court.

This case is also interesting for the attorney fee award against wife. As divorce lawyers, we see many parties who are embittered by the divorce process, and who then lash out at their spouse. We tell people not to do it. The wife in Boyd probably didn’t listen to her lawyer’s advice, and was dumb enough to leave repeated threatening messages that ended up as exhibits in court! You should assume that anything you write (or say on a recorded message) during litigation may show up as an exhibit in trial, but Ms. Boyd still could not restrain herself. While we are a no fault divorce state, the court can and will consider conduct under ORS 20.075 (1) and ORS 20.075(2)in determining if a spouse should pay the other’s fees.

The entire opinion can be found at http://www.publications.ojd.state.or.us/A135183.htm

New Case Law: Attorney Fees – Bankruptcy and Divorce

Daniel Margolin — Sun, 06 Apr 2008 20:13:04 +0000

As a Portland Oregon divorce law firm, Stephens Margolin P.C. is dedicated to keeping up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On April 2, 2008, the Oregon Court of Appeals, in Jacobs and Jacobs, explained the effect of a bankruptcy proceeding on an award of attorney fees on appeal. In the case, husband filed for bankruptcy after his divorce from wife. In the divorce, the trial court awarded wife a judgment against husband for her attorney fees. The attorney fee award was discharged by the bankruptcy court. Husband appealed the divorce judgment. Wife prevailed on appeal and was awarded her attorney fees incurred in responding to husband’s appeal by the Court of Appeals.

On appeal of the attorney fee award, husband argued that wife’s appellate attorney fees were also discharged by the bankruptcy court since at least a portion of the fees were incurred while husband’s bankruptcy was pending. In ruling for wife, the Court stated “[h]usband has neither provided sufficient information in the record to establish that his bankruptcy discharge includes the attorney fees at issue, nor has he authenticated the scant materials he has submitted to this court. The record before the court is insufficient to determine the outcome of the bankruptcy proceeding”

The lesson to be gained from the opinion is that it is very important to provide the court with complete documentation of any issue that a party wants the court to review. Without a complete record, the court is unable to rule in a party’s favor even if that party is correct. You can review the full opinion at http://www.publications.ojd.state.or.us/A128771.htm. If you have any questions about appeallate law, attorney fees or any family law or divorce legal issue, please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

New Case Law: Attorney Fees – Arbitration vs. Appeal

Daniel Margolin — Sat, 22 Mar 2008 16:27:36 +0000

As a Portland Oregon divorce lawyer, it is important to keep up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On March 19, 2008, the Oregon Court of Appeals, in Ornelas and Ornelas, explained the difference between awarding attorney fees in arbitration appeals and appeals to the court of appeals.

In an Oregon divorce case where the parties have no children and no spousal support award is requested by either party the case is sent to mandatory arbitration. If either party disagrees with the result in arbitration, that party can appeal the arbitrator’s ruling for a trial de novo at the circuit court level. That means that a judge will look at the case without referring to the arbitrator’s ruling.

ORS 36.425(4)(c) provides:

“If a party requests a trial de novo under the provisions of this section, the action is subject to arbitration under ORS 36.405(1)(b), and the position of the party is not improved after judgment on the trial de novo, the party shall not be entitled to an award of attorney fees or costs and disbursements and shall be taxed the costs and disbursements incurred by the other parties after the filing of the decision and award of the arbitrator.”

This means that the trial court must make an award of attorney fees to a party who asks for a trial after arbitration and does not receive a better result.

In Ornelas, the husband was upset because his wife not only asked for trial de novo after she was unhappy with the arbitrator’s ruling, but also appealed the trial court’s ruling. She received a worse result on appeal than she did at arbitration or at the trial court level. Therefore, husband argued that wife must pay his attorney fees.

The court of appeals ruled that the attorney fee award language in ORS 36.425(4)(c) only applies to trial de novo and not to appeals. This is because the court of appeals has discretion to award or not award attorney fees on appeal pursuant to ORS 107.105. Meaning that even if you do worse on appeal that at arbitration, you can still receive an attorney fee award.

The court ended up not awarding attorney fees to either party since the final distribution of martial assets put husband and wife on roughly equal financial footing.

The entire opinion can be reviewed at http://www.publications.ojd.state.or.us/A128901A.htm.