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In re Marriage of Pierce

Court of Appeals of Oregon

October 30, 2013

In the Matter of the Marriage of LISA LEE PIERCE, nka Lisa Lee Vaught, fka Lisa Lee Chatfield, aka Lisa L. Heiple, aka Lisa Pierce, Petitioner-Respondent, and STATE OF OREGON, acting by and through the Division of Child Support, Petitioner, and KIPPY ROBERT PIERCE, aka Kip Pierce, aka Kippy R. Pierce, aka Kippy Pierce, Jr., Respondent-Appellant.

Submitted on February 01, 2013.

Clackamas County Circuit Court DR0102225 Susie L. Norby, Judge.

Kip Pierce filed the briefs pro se.

Tony Pizzuti filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

SERCOMBE, J.

Father appeals a judgment that concluded that mother was not in willful contempt of a 2004 supplemental judgment and that he was in willful contempt of that judgment. He assigns error to the trial court's determinations that (1) mother did not willfully violate the terms of a court-ordered parenting plan and (2) father failed to make monthly payments toward a $25, 000 money award for a child support arrearage, as required by the 2004 judgment, and therefore owed interest on the unpaid balance of that money award. For the reasons that follow, we reverse the trial court's determination that father was in contempt for failure to make payments to the child support arrearage and the award of interest on the unpaid balance of the arrearage.[1] We otherwise affirm.

We provide a brief procedural background and set forth the relevant facts and pertinent provisions of the 2004 judgment as we address each of father's assignments of error below. In 2001, the trial court entered a judgment dissolving the parties' marriage, providing for child and spousal support, and granting mother custody of the parties' children subject to a parenting plan. In 2003, father moved to set aside the 2001 judgment, arguing that he did not have notice of the 2001 proceedings. The parties later resolved that dispute, and on August 25, 2004, the trial court entered a supplemental judgment that was stipulated to by the parties.[2]

In 2011, each party filed a motion requesting that the other party be held in contempt for willfully violating the 2004 judgment. Father claimed that mother had willfully violated the terms of a parenting plan that was part of the 2004 judgment. Mother asserted that, starting in September 2009, father willfully violated a requirement in the 2004 judgment that he make monthly payments toward a $25, 000 money award for a child support arrearage. Mother also claimed that, as a result of his failure to pay, father owed interest on the unpaid balance of the arrearage award. The trial court entered a supplemental judgment concluding that mother was not in contempt of a "court-ordered parenting plan" because no parenting plan was included with the 2004 judgment in the court file. The court, however, found father in contempt for failing to make payments to the child support arrearage and awarded mother interest on the unpaid balance of the arrearage. On appeal, father assigns error to those rulings. We address each in turn.

Father first contends the trial court erred in its determination that mother was not in contempt for willfully failing to comply with a court-ordered parenting plan that was part of the 2004 judgment. The 2004 judgment provides that "[father] shall be granted the following parenting plan with the children of the parties as set forth in the attached document entitled 'Parenting Plan.'" At the contempt hearing, the parties argued over whether mother had violated the terms of a parenting plan that father had included with his contempt filings.

In its letter opinion, however, the trial court ruled that "[t]he Supplemental Judgment signed by the court on August 25, 2004 purports to adopt an 'attached' Parenting Plan, but does not have a Parenting Plan attachment." The court determined that, because "there has been no court ordered parenting plan in place, there was nothing for Mother to violate. Therefore, Mother is not in contempt of court for failing to comply with court ordered parenting time." (Underscoring omitted.) Before the trial court entered its judgment, father filed an "Opposition to Proposed Supplemental Judgment, " arguing that "[i]t is a fact that there is a Parenting Plan which was attached to the 2004 Supplemental Judgment" and that the parties treated the parenting plan submitted with father's contempt filings as part of the 2004 judgment. The trial court then issued its judgment, finding that "[t]here is no Court-ordered parenting plan in place and Mother * * * is not in contempt for failing to comply with court-ordered parenting time[.]"

On appeal, father again argues that, even if the parenting plan was not attached to the original 2004 judgment in the trial court file, that plan was part of the 2004 judgment. Father points out that the 2004 judgment references a parenting plan attachment, that he submitted a document entitled "parenting plan" with his contempt filings, and that mother treated that document as the parenting plan referenced in the 2004 judgment. Father argues that "common sense" shows that the parenting plan attachment was "mistakenly omitted" from the original 2004 judgment in the trial court file, likely because it "was lost or misplaced by the trial court." According to father, the trial court should have simply "ask[ed] for a copy" of the parenting plan to correct the omission from the 2004 judgment in the trial court file.

We begin with the relevant statutes addressing court-ordered parenting plans. Although parents are encouraged "to develop their own parenting plan, " ORS 107.101(3), to be made part of a judgment, a parenting plan developed by the parties must be submitted to the trial court for approval. Under ORS 107.102(1), "there shall be developed and filed with the court a parenting plan to be included in the judgment." (Emphasis added.) Under ORS 107.105(b), "[w]hen a parenting plan has been developed as required by ORS 107.102, the court shall review the parenting plan and, if approved, incorporate the parenting plan into the court's final order." (Emphasis added.) Likewise, for the trial court to find a party in contempt for willfully violating a parenting plan, that plan must be part of a court order or judgment. Under ORS 33.015(2), "[c]ontempt of court" includes "willful[ ] * * * [d]isobedience of, resistance to or obstruction of the court's authority, process, orders or judgments." See St. Sauver and St. Sauver, 196 Or.App. 175, 185, 100 P.3d 1076 (2004) ("The essential elements for a contempt judgment are '(1) a valid court order; (2) knowledge of the order by the contemnor; and (3) the contemnor's voluntary noncompliance with the order.'" (quoting Clark and Clark, 171 Or.App. 205, 209, 14 P.3d 667 (2000))).

Here, the 2004 judgment references a parenting plan attachment, but no parenting plan is attached to the 2004 judgment in the trial court file and no parenting plan was filed with the court and made part of the trial court file during the 2004 proceedings. In those circumstances, the trial court did not err in finding that a parenting plan was not part of the 2004 judgment. The trial court file contains "all the original papers filed in the trial court whether before or after judgment, " ORS 19.005(7), and the trial court properly relied on its examination of that file in determining whether the parenting plan was part of the 2004 judgment. Despite the reference to a parenting plan in the 2004 judgment, the trial court file shows that the parties never ...


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