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In re Marriage of Uhde

Court of Appeals of Oregon

December 26, 2013

In the Matter of the Marriage of DENISE L. UHDE, kna Denise L. Uhde-Friesen, Petitioner-Appellant, and JACK B. UHDE, Respondent-Respondent, and CHRISTOPHER WILLIAM AUGUST UHDE, Necessary Third Party-Respondent.

Argued and submitted on September 18, 2012.

Lincoln County Circuit Court 010361 Thomas O. Branford, Judge.

George W. Kelly argued the cause and filed the briefs for appellant.

Gilbert B. Feibleman argued the cause for respondent Jack Uhde. With him on the brief was Feibleman & Case, P.C.

No appearance for respondent Christopher Uhde.

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

ORTEGA, P. J.

Wife appeals a supplemental judgment that terminated husband's spousal support obligation to wife, set wife's child support obligation to husband, and awarded husband attorney fees. She challenges the court's imposition of sanctions under ORCP 46 B and the court's subsequent determinations that evolved from those sanctions. We affirm.

In 2003, the trial court entered a dissolution judgment. Wife appealed, and husband conditionally cross-appealed. Uhde and Uhde, 217 Or.App. 258, 175 P.3d 511 (2007). On appeal, we reversed and remanded after concluding that the court erred in denying maintenance support to wife. Id. at 269. On cross-appeal, we reversed and remanded for a determination of wife's child support obligation in light of her entitlement to maintenance support. Id. On remand, the trial court entered a supplemental judgment setting maintenance spousal support in the amount specified by this court. Subsequently, the parties filed cross-motions to determine, among other things, wife's child support obligation. As part of that proceeding, husband obtained orders to compel discovery of the financial records of wife and her new husband. Ultimately, the court determined that wife had failed to comply with those orders and, under ORCP 46 B, sanctioned wife by striking her pleadings and entering a default against her. At a "prima facie hearing" in which wife was not allowed to participate, husband presented evidence to the trial court in support of his requested relief. The court entered a supplemental judgment setting wife's child support obligation, eliminating husband's spousal support obligation, and awarding husband $25, 432.29 in attorney fees. Wife appeals that supplemental judgment.

On appeal, wife raises five assignments of error. First, she challenges the court's evidentiary basis for concluding that she failed to provide the requested discovery. Second, she asserts that the court abused its discretion by not ordering a sanction less severe than striking her pleadings and not allowing her to participate in the prima facie hearing. Third, wife assigns error to the court's determination of husband's income for child support purposes. Fourth, she contends that the court erred in awarding attorney fees to husband without giving her the opportunity to oppose the request and, fifth, she contends that the trial court's calculations in the supplemental judgment were erroneous. We reject wife's second, third, and fifth assignments of error without discussion, and write to briefly address her first and fourth assignments.

As to wife's first assignment of error, the evidentiary record contradicts wife's assertion that there was no factual basis for the trial court to find that she failed to provide discovery requested by husband. To the contrary, there is evidence from which the trial court could find that, over a year after the first order to compel was entered, wife had provided very few of the financial records sought by husband. Accordingly, we reject wife's first assignment of error. Morton and Morton, 252 Or.App. 525, 527, 287 P.3d 1227 (2012) ("[W]e are bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record[.]").

In her fourth assignment of error, wife contends that the trial court erred when it awarded attorney fees and costs to husband without requiring husband to comply with the service requirements of ORCP 68 C(4)(a)(ii) and without giving wife the opportunity to object, as allowed by ORCP 68 C(4)(b).

The facts related to the court's attorney fee award to husband are undisputed and mainly procedural. Husband obtained orders to compel discovery from wife in 2009. In December of that year, husband moved for sanctions under ORCP 46 B(2)(c), [1]contending that wife had failed to comply with the court's orders to compel. In that motion, husband requested an "order striking all of [wife's] pleadings in this matter and the immediate entry of a [d]efault [o]rder." Wife opposed that request, asserting that she had produced many of the documents sought, and asking for additional time to provide more discovery. At a May 2010 hearing to address the parties' discovery dispute, the court determined that wife still had not provided appropriate discovery and ordered her to do so by June 1, 2010.

In September 2010, husband renewed his motion for sanctions, claiming that, although wife had provided some documents, they were inadequate. At a hearing on the motion, the trial court concluded that it was clear that wife had not and "will not in the future provide the information that was requested by [husband]." After explaining that wife and her husband demonstrated a pattern of evasiveness in responding to discovery, the court stated that "I am going to grant the default." The court entered a written order in which it, after evaluating the sanctions available under ORCP 46 B(2), concluded that the "only meaningful and appropriate sanction" against wife was to "strike her ...


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