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In re Marriage of Haggerty

Court of Appeals of Oregon

February 20, 2014

In the Matter of the Marriage of JULIE A. HAGGERTY, nka Julie Ann Blair, Petitioner-Respondent, and ANCER L. HAGGERTY, Respondent-Appellant

Argued and Submitted: May 1, 2013.

Multnomah County Circuit Court. 100463778. Paula J. Kurshner, Judge.

W. Michael Gillette argued the cause for appellant. With him on the briefs were Leora Coleman-Fire and Schwabe, Williamson & Wyatt, P.C.

Liza Jane Langford argued the cause and filed the brief for respondent.

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

OPINION

Page 1102

[261 Or.App. 160] SERCOMBE, J.

Husband appeals a dissolution judgment, contending that the trial court's award of $7,000 per month in maintenance spousal support to wife was not just and equitable and that, in any event, the trial court erred in refusing to enforce a marital settlement agreement between the parties. In husband's view, the court should have incorporated into the dissolution judgment a purported marital settlement agreement which, according to husband, included agreements " to award Wife $4,000 per month of spousal support, provide her with $50,000 of life insurance, and file joint state and federal taxes whereby Husband would receive any tax refund." Wife responds that the trial court's spousal support award was " fair and equitable" and that the trial court did not err in denying husband's motion to enforce the settlement agreement. Because the trial court did not determine whether the parties had entered into a valid settlement agreement and, in the event there was such an agreement, did not consider whether the terms of that agreement were within the range of what would be just and equitable under the circumstances, we vacate the dissolution judgment in part, remand for reconsideration of the spousal support and life insurance awards, and otherwise affirm.[1]

The parties seek de novo review in this case. See ORS 19.415(3) (Court of Appeals has discretion to review de novo in equitable actions). We exercise our discretion to review de novo only in exceptional cases, and, based on the rationale advanced in favor of such review by the parties,[2] we are [261 Or.App. 161] not persuaded that this is such a case. See ORAP 5.40(8)(c) (" The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases. Consistently with that presumption against the exercise of discretion, requests [for de novo review] are disfavored." ); see also ORAP 5.40(8)(a) (" In those proceedings in which the Court of Appeals has discretion to try the cause anew on the record and the appellant seeks to have the court exercise discretion, the appellant shall concisely state the reasons why the court should do so." ). Accordingly, we decline to review the case de novo and " state the facts consistently with the trial court's express and implied findings, supplemented with uncontroverted information from the record."

Page 1103

Kirkpatrick and Kirkpatrick, 248 Or.App. 539, 541, 273 P.3d 361 (2012).

The parties in this case were married for 27 years and, at the time of trial, wife was 61 and husband was 66. Wife was a retired school principal, part-time substitute teacher, and an author of children's books. Husband was a senior judge with the United States District Court. At the time of the dissolution, husband's monthly gross income was $17,734, consisting of Social Security of $1,435, a veteran's association pension of $875, PERS benefits of $924, and $14,500 for his work as a senior federal judge. Wife's monthly gross income from PERS was $2,965. Both parties had had health issues in the past but were medically stable at the time of trial.

On April 12, 2011, the day before the dissolution trial began, husband filed a motion asserting that, on October 7 and 29, 2010, the parties and their attorneys had met with a mediator and " reached an oral agreement which [the mediator] confirmed by reporting the case as settled to Husband's counsel." However, wife did not sign a settlement agreement or a stipulated judgment. According to husband, the terms of the oral agreement were, in relevant part, that (1) wife would receive indefinite spousal support of $4,000 per month, (2) wife would receive $50,000 in life insurance, [261 Or.App. 162] and (3) the parties would file a joint tax return for 2010.[3] Husband urged that there is a policy in favor of settlements in dissolution cases. He asserted that the agreement was " final and enforceable" and that wife " had breached her contractual obligation" and, therefore, husband asked the court to " enforce the Mediated Settlement Agreement by signing a general judgment to be tendered by Husband's counsel." Wife, in her response to the motion, asserted that husband's " filing of this motion on the eve of trial is a blatant and improper attempt to insert confidential settlement negotiations into the court's deliberations."

At the beginning of the trial, the court noted that it was going to rule on the motion for the record, and husband would then present an offer of proof. It then gave its ruling, noting that husband had cited ORS 107.104 in support of the motion:

" First of all, the statute is discretionary. There's three circumstances in which a court may use contract principles to enforce a settlement; that's a stipulate[d] judgment signed [by] both parties, a settlement read onto the record, and a marital settlement agreement incorporated into a judgment. ...

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