JRL-S LEGAL UPDATE is an occasional newsletter reviewing recent developments in family law and civil procedure. For July 2006, topics include appellate review of attorney fee awards, contempt of court, distribution of an inheritance, and a testamentary dispute arising from an old divorce agreement that required the establishment of a trust.
The Court of Appeals has sharpened its approach to reviewing awards of attorney fees in family law and other equity cases. In 1995, the legislature adopted ORS 20.075, which provides that "in any appeal from the award or denial of an attorney fee, the court reviewing the award may not modify the decision of the court in making or denying an award, or the decision of the court as to the amount of the award, except upon a finding of an abuse of discretion." The court ruled in the 2001 case of Baker and Baker that the statute did apply to family law cases.
In Niman and Niman (Niman II), the court recognized the abuse-of-discretion standard, but held that it did not apply to factual findings in equity cases. Even on attorney fee questions, the court applies a de novo standard of review to factual questions under ORS 19.415(3). Also, "we review predicate legal conclusions for errors of law." The appellate court remanded two of the trial court's attorney fee decisions and reversed another as an abuse of discretion.
The court affirmed a $100,000 contempt sanction in State ex rel. Crown Investment Group, LLC, v, City of Bend. Crown demolished a building while it was trying to get a court order allowing the demolition. The court held irrelevant Crown's arguments that the demolition was a foregone conclusion and that no court order prohibited it. "At the least, Crown's deliberate decision to execute an action, the legality of which was still pending in court, was an obstruction of the court's authority and process."
In Olesberg and Olesberg, the court decided explicitly that the fact an inheritance was left only to the testator's child was insufficient to rebut the presumption that that child's spouse contributed equally to its acquisition. "It is not sufficient to show simply that the inheritance devolved only to husband and his siblings in equal shares. The fact that the mother's estate was divided three ways among her children does not establish that she had no intention to benefit wife. Husband must provide affirmative evidence that wife was not an object of her mother-in-law's donative intent."
Finally, the court decided a trust dispute arising from the terms of a stipulated divorce judgment entered in 1969. The judgment in Brown v. Brown required the husband to establish a trust, which he never did. The court concluded that the judgment itself did not create an express trust. The evidence that the husband breached an agreement with his wife in any material way, the court decided, was insufficient to impose a constructive trust after his death. The property in question was distributed according to the terms of the husband's will.
JRL-S LEGAL UPDATE is authored by Mark Johnson, a shareholder and appeals attorney at Johnson & Lechman-Su PC in Portland, Oregon. Mark also provides attorneys with legal ethics advice as well as coaching, consulting, and collaboration on a wide range of family law issues. He is available to act as a reference judge in Oregon family law cases.
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Johnson & Lechman-Su PC, 1200 Weatherly Building, 516 SE Morrison Street, Portland, Oregon 97214
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