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In re Marriage of Lamm

Court of Appeals of Oregon

February 22, 2018

In the Matter of the Marriage of Janice K. LAMM, Petitioner-Respondent, and Donald A. LAMM, Respondent-Appellant.

          Submitted May 4, 2017

         Malheur County Circuit Court 15CN1013; Lung S. Hung, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          No appearance for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Respondent appeals a judgment that found him in contempt, imposed a sanction of 24 months of bench probation, and awarded respondent's real property to petitioner. In his first assignment of error, respondent contends that the court plainly erred when it imposed a determinate term of bench probation in a remedial contempt proceeding because a determinate term of probation is a punitive sanction. In his second assignment, respondent argues that the trial court erred by awarding his real property to petitioner "because it was not a lawful remedial sanction, * * * and it impermissibly modified a previous property division" in the dissolution judgment. Held: The trial court plainly erred by imposing a determinate term of probation, and it also erred by awarding respondent's real property to petitioner.

         Reversed and remanded.

         [290 Or.App. 352]TOOKEY, J.

         Respondent appeals a judgment that found him in contempt, imposed a sanction of 24 months of bench probation, and awarded respondent's real property to petitioner.[1] In his first assignment of error, respondent contends that the court plainly erred when it imposed a determinate term of bench probation in a remedial contempt proceeding because a determinate term of probation is a punitive sanction. In his second assignment, respondent argues that the trial court erred by awarding his real property to petitioner "because it was not a lawful remedial sanction, * * * and it impermissibly modified a previous property division" in the dissolution judgment.[2] We agree with respondent that the trial court plainly erred by imposing a determinate term of probation, and that it also erred by awarding respondent's real property to petitioner. Accordingly, we reverse the imposition of those sanctions and remand for reconsideration.

         Respondent and petitioner divorced on July 27, 2015. In the dissolution judgment, petitioner's award included $1, 000 per month in spousal support, and an "equalizing judgment" of $34, 000 to be paid at $641.62 per month secured by a promissory note and trust deed. The court also ordered respondent to pay certain marital debts and petitioner's attorney fees. Respondent's award included real property in Adrian, Oregon valued at $55, 310.

         Respondent subsequently failed to pay petitioner any spousal support, failed to pay petitioner any equalization payments, failed to sign the promissory notes and deeds of trust, and failed to pay the marital debts pursuant to the dissolution judgment. Petitioner filed a motion for an order for respondent to show cause why he should not be found in contempt for failing to comply with those orders in the [290 Or.App. 353] dissolution judgment.[3] In that motion, petitioner requested that respondent be sanctioned by imposing six months' incarceration in the county jail and a $1, 000 fine. Additionally, as an alternative sanction, petitioner requested "the court to modify the terms of the general judgment entered in the divorce case" so that she would receive respondent's real property in Adrian, Oregon. In his written response, respondent raised the affirmative defense of an inability to pay because he was unemployed, had exhausted his unemployment benefits, and was receiving only $1, 202 per month in social security. Additionally, respondent relied on Dornbusch and Dornbusch, 195 Or.App. 61, 96 P.3d 877 (2004) to argue that "the court is without the statutory authority to modify the property distribution set forth in the General Judgment" as a sanction for remedial contempt.

         The trial court concluded that respondent had the ability to pay, and found respondent "in remedial contempt" for the following violations of the judgment of dissolution: "Failure to pay spousal support; Failure to pay the equalization payment of $641.[6]2 per month; Failure to sign the promissory notes and deeds of trust; [and] Failure to pay marital debt pursuant to the General Judgment." The court imposed an indeterminate six-month jail term, a 24-month determinate term of probation, and awarded petitioner "all, right, title, and interest in the real property" in Adrian, Oregon.[4]

         On appeal, in his first assignment of error, respondent contends that the trial court plainly erred when it imposed a determinate 24-month term of probation in a remedial contempt proceeding. We may review an unpreserved error as one that is "apparent ...


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