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In re Marriage of Brown

Court of Appeals of Oregon

November 27, 2013

In the Matter of the Marriage of KATHLEEN KAY BROWN, nka Kathleen Kay McLaughlin, Petitioner-Appellant, and TIMOTHY MARTIN BROWN, Respondent-Respondent.

Argued and submitted on April 08, 2013.

Clackamas County Circuit Court DR11020154, Thomas J. Rastetter, Judge.

Philip F. Schuster, II, argued the cause and filed the briefs for petitioner.

Andrew W. Newsom argued the cause for respondent. With him on the brief was Stahancyk, Kent & Hook PC.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.

DUNCAN, J.

Wife appeals from a dissolution judgment enforcing a settlement agreement. She contends that the trial court erred as a matter of law in enforcing the agreement and in adopting the agreed-upon spousal support amount, without first determining that it was "just and equitable." Wife also asserts that the court erred in awarding husband his attorney fees and costs. We conclude that the trial court erred, and, therefore, we vacate the judgment in part and remand.

In February 2011, wife sought dissolution of the parties' eight-year marriage. At that time, wife was 45 and husband was 39. Wife had previously been employed as a realtor but at the time she filed for dissolution she was unable to work due to back injuries and had been receiving Social Security disability benefits for approximately two months. Husband was employed as an engineer; his gross income in 2010 was $86, 000. There are no children of the marriage.

On May 5, 2011, the parties, represented by counsel, attended a mediation session, during which wife's attorney submitted a settlement offer. Husband accepted the offer, and wife's attorney drafted a document entitled "Memorandum of Settlement, " which both parties dated and signed that same day. The agreement divided the parties' assets, allocating to wife the long half of the marital property. It provided for spousal support to wife in the amount of "$1, 300/month for three years; then $750/month for two years."

Although the parties exchanged drafts of a stipulated judgment, the marital settlement agreement was never incorporated into a stipulated judgment. The court set a trial date for the dissolution, and husband filed a motion and order to show cause why the settlement agreement should not be "enforced."

The court took testimony at a hearing on husband's motion and, in a general judgment of dissolution, made the following findings:

"1. On May 5, 2011, the parties participated in a mediation of their pending divorce with retired Clackamas County Circuit Court, Judge John Lowe.
"2. Both parties were represented by counsel.
"3. Wife is permanently disabled and receives Social Security Disability.
"4. Wife had been prescribed and had been taking muscle relaxants and pain medication at the time of mediation.
"5. Until Wife was disabled, she worked as a real estate broker.
"6. During the mediation, Wife's attorney [Ms. McFarland] * * * made a settlement offer to Husband with Wife's consent. Husband accepted that offer.
"7. The agreement was reduced to writing and signed by both parties on the same day as the mediation, May 5, 2011.
"8. Judge Lowe, Ms. McFarland and Husband did not believe Wife to be impaired or unable to understand the nature of the agreement ...

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