Douglas and Minzer ( 2024 )

No. 562 August 14, 2024 341
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Marriage of
Josiah David DOUGLAS,
Petitioner-Respondent,
and
Sarah Marie MINZER,
fka Sarah Marie Douglas,
Respondent-Appellant.
Washington County Circuit Court
20DR11401; A178267
D. Charles Bailey, Jr, Judge.
Argued and submitted June 8, 2023.
George W. Kelly argued the cause and filed the briefs for
appellant.
Andrew W. Newsom argued the cause and filed the brief
for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Award of child support reversed and remanded; award of
attorney fees and costs reversed; otherwise affirmed.
342 Douglas and Minzer
POWERS, J.
Mother appeals from a supplemental judgment of
dissolution awarding father custody of the parties’ child and
establishing a child support order. On appeal, mother con-
tends that the trial court abused its discretion by limiting
her presentation of evidence and examination of witnesses,
thereby denying her a fundamentally fair trial. She also
challenges the court’s calculation of child-care costs, the
denial of her request for a hearing on those costs, and the
court’s discretionary award of attorney fees. As we explain
below, although we would not wish the trial court’s manage-
ment of the proceedings to be seen as ideal, it was within the
court’s permissible range of discretion and ultimately did not
deprive mother of the opportunity for a reasonably complete
presentation of evidence and argument. We further conclude
that the court’s support order included child-care costs that
are above the maximum allowed by the support guidelines.
Thus, because the court erred in its support calculation,
we reverse and remand for recalculation of child support.
That disposition also results in a reversal of the attorney
fee award by operation of law. Accordingly, we affirm in part
and reverse in part the supplemental judgment of dissolu-
tion of marriage and reverse the attorney fee award.
We begin with an overview of the underlying facts,
which are undisputed. The parties were married in 2019
and have one child together, E. After father petitioned to dis-
solve the marriage, the trial court held a trial in September
2021 to establish custody, parenting time, and child sup-
port. Father was represented by counsel at trial, and mother
represented herself.
Both parties made opening statements, after which
the trial court informed the parties that they would each
have an hour and a half to present their evidence. For his
case-in-chief, father called seven witnesses to testify, includ-
ing himself. During that time, mother cross-examined all of
father’s witnesses except for father—father’s testimony was
twice interrupted due to another of his witnesses becoming
available via remote video. Father’s time had expired after
the second interruption, and the court informed the parties
that they could submit whatever additional information they
Cite as 334 Or App 341 (2024) 343
wanted via affidavit or declaration. Father did not return to
the stand for further direct examination, and the court did
not offer mother the opportunity for cross-examination.
For her case-in-chief, mother called two witnesses.
The first witness was Laughlin, mother’s friend. Mother
used most of her time on her second witness, Dr. Miller,
mother’s psychiatrist. Father’s counsel cross-examined both
witnesses. Following Miller’s testimony, the court again
informed the parties, “if you all have additional witnesses
that you want to present to the court, I’ll allow you to pres-
ent those witnesses via affidavit.” The court explained that,
if the affidavits made hearsay references, the references
would not be considered. Father and two of his witnesses
submitted affidavits. Mother did not submit her own affida-
vit, but her two witnesses did.
Following the trial, mother hired counsel and filed a
motion captioned: “Motion for Hearing Attendant to Oregon
Evidence Code.” In that motion, mother contended that it
was error for the court to substitute affidavits in place of
live testimony from witnesses. The court denied the motion,
explaining that it “already had a hearing and have given
parties opportunity to submit additional affidavits. Further
court time would not be of any help.”
In November, the court held a final hearing to allow
for the testimony of Dr. Lee, a licensed psychologist, who
had performed a custody evaluation for the parties. At the
outset, the court told the parties that questioning would
be limited to one and a half hours total, with counsel for
mother and counsel for father each getting half of that time
to question Lee. The court did not allow closing arguments,
explaining that “closing arguments aren’t going to be help-
ful to the court.” The court did allow the parties to offer
written submissions of their recommendations for parenting
time.
After taking the case under advisement, the trial
court issued a general judgment giving father sole cus-
tody and mother having approximately 10 days with E per
month. In making its ruling, the court gave “some credibil-
ity” to both father and mother but found that “both seemed
344 Douglas and Minzer
to be clouded by the animosity between the two.” The court
gave “no credibility” to mother’s witness, Miller, finding that
Miller “lost any and all objectivity and was extraordinarily
unprofessional by getting too close to” mother. The general
judgment also established child support in favor of father.
Mother filed objections to the general judgment
challenging the support award and requesting a hearing. In
particular, mother challenged the trial court’s imputation
of child-care costs for father, which the court included as
$2,000 per month. The court denied the request and issued
a supplemental judgment that left the child-care costs and
support award unchanged. In a separate order, the court
awarded father the entirety of his attorney fee request of
$66,025.50. Mother filed an objection to those fees, arguing
that the court’s own decision and order made clear that both
parties had engaged in unreasonable requests and actions
throughout the case. The court rejected mother’s challenge
and awarded father the full amount of his request for attor-
ney fees. Mother now timely appeals from the supplemental
judgment and attorney-fee order.
In her first assignment of error, mother contends
that the trial court erred in denying her “Motion for Hearing
Attendant to Oregon Evidence Code” and, as a result, in
making its custody determination. Mother contends that the
court’s denial of her motion, which challenged the use of affi-
davits in place of live testimony, was error because it denied
her the opportunity to cross-examine father’s witnesses
and resulted in a trial that was fundamentally unfair. See
Howell-Hooyman and Hooyman, 113 Or App 548, 551, 833
P2d 328 (1992) (explaining that a trial court’s authority to
control the presentation of evidence and examination of wit-
nesses is reasonable only if it is “fundamentally fair and
allows opportunities for a reasonably complete presentation
of evidence and argument”).
Father remonstrates that mother failed to pre-
serve her argument because the first time she challenged
the trial court’s decision to accept witness affidavits was
in her motion, days after the trial itself. Father further
asserts that, even if her argument was preserved, the court
correctly denied mother’s motion because the parties were
Cite as 334 Or App 341 (2024) 345
given equal time to present their cases and mother was not
restricted in how she chose to spend her allotted time.
We review the trial court’s exercise of control over
the presentation of evidence and the examination of wit-
nesses for abuse of discretion. Hooyman, 113 Or App at 550.
First, we conclude that mother adequately preserved her
argument for appeal. Her motion challenged the fairness of
the court’s decision to limit the parties’ live testimony and
argued that it was “plain error for the court to substitute
affidavits for the taking of testimony.” Her motion was filed
after the initial trial but before the final hearing in which
the court heard additional testimony. Thus, the court and
the parties had adequate time to consider and address the
issue if necessary. See Peeples v. Lampert, 345 Or 209, 219-
20, 191 P3d 637 (2008) (explaining that the primary pur-
poses of the preservation rule are to allow the trial court to
consider a contention and correct any error, allow the oppos-
ing party an opportunity to respond to a contention, and to
foster a full development of the record).
Second, having reviewed the record, we conclude
that the trial court did not abuse its discretion in denying
mother’s motion because mother was not prevented from
making a reasonably complete presentation of evidence. A
trial court has “considerable discretion” to manage parties
in their use of available court time. Dominguez and Fields,
286 Or App 504, 510, 399 P3d 472 (2017). In exercising that
discretion, the court may reasonably control the presenta-
tion of evidence, examination of witnesses, and the progress
of trial. OEC 611(1); Hooyman, 113 Or App at 551. To be
reasonable, the court must be fundamentally fair and must
allow each party the opportunity for a reasonably complete
presentation of evidence and argument. Id. The court’s exer-
cise of discretion does not allow it to effectively prevent a
party from presenting their case and it may not wholly deny
a party the right to cross-examine. Fields, 286 Or App at
510.
Here, the court’s control over the presentation
of evidence and examination of witnesses did not prevent
mother from making a reasonably complete presentation of
her evidence. At the outset, the court told the parties that
346 Douglas and Minzer
they had limited time to present their evidence but left open
the possibility that, if it felt more time was needed, “we’ll
either set it on a future date or the court will receive affida-
vits from the parties.” The court was strict in adhering to
the time restraints it initially set for each party, and there
is no dispute that both parties had equal time. Further,
the court’s statement at the outset suggests that the court,
initially, was not closed to the possibility that the parties
would need additional time to present evidence. After hear-
ing witness testimony at the September trial and becoming
familiar with the evidence both parties were presenting, it
was not outside the allowable exercise of discretion to limit
further testimony at the second hearing to only hearing live
testimony from the custody evaluator.
Mother also challenges the trial court’s decision to
take evidence by using affidavits. She argues that by using
that process the trial was fundamentally unfair because
it “was principally completed by way of affidavits,” and
father’s affidavit “might have been found to be based on
hearsay” had she been allowed to cross-examine him. As
noted earlier, the court told the parties at the end of the first
hearing that they could submit additional evidence by way
of affidavit or exhibit. Father chose to submit an affidavit
and mother chose not to do so. In explaining that it would
accept affidavits, however, the court told the parties that if
the affidavits “make hearsay references * * *, the court will
understand that there are hearsay references and won’t con-
sider the hearsay references.” Further, the court’s judgment
does not reference father’s affidavit. Rather, the court’s order
gave “some credibility” to both father and mother but found
that “both seemed to be clouded by the animosity between
the two.”
We further conclude that the trial court did not deny
mother the right to cross-examine witnesses or the oppor-
tunity present her own case. Mother cross-examined all of
father’s witnesses except for father himself. As described
above, father’s direct testimony was cut short by the avail-
ability of another of his witnesses and, by the time that wit-
ness finished testifying, father’s time to present evidence had
expired. Although the court did not offer mother the option
Cite as 334 Or App 341 (2024) 347
to cross-examine father, mother could have called father as
a witness during her own time. Instead, mother used her
time calling two witnesses: Laughlin, who described herself
as mother’s “best friend,” and Miller, who the court found
to have “no credibility” due to her close relationship with
mother. Mother also could have offered her own testimony
during her allotted time. Indeed, during Miller’s testi-
mony, the court encouraged mother to “make sure you leave
yourself some time” and “let’s go ahead and—is there any-
thing more—because you wanted to testify.” Mother, how-
ever, chose to continue asking Miller questions on direct
examination.
In sum, we are not persuaded that the trial court,
in exercising its discretion to control the submission of evi-
dence and examination of witnesses, denied mother a fun-
damentally fair trial or the opportunity to present a reason-
ably complete presentation of her evidence. To be sure, the
allotted time was limited, and mother’s litigation choices on
how to spend her allotted time and whether and to what
extent to submit additional written evidence when given the
opportunity may have negatively impacted her overall pre-
sentation of evidence and contributed to the perception of an
unlevel playing field between the parties. The trial court’s
management over the trial, however, did not render the pro-
ceedings fundamentally unfair.
Mother’s second and third assignments of error
relate to the trial court’s child support order. In its order,
the court entered father’s child-care costs as $2,000 and
mother’s as $0. Mother’s counsel filed written objections to
the order and requested a 15-minute hearing to address the
issue of child support. The court denied mother’s request for
a hearing and, in its supplemental judgment, maintained
the child-care costs and support order from the general
judgment.
Mother assigns error to the trial court’s denial of
her objection. Specifically, she argues that the court erred
by (1) not including any of her own child-care costs, (2) set-
ting father’s child-care expenses above the maximum allow-
able expense, and (3) including care for a non-joint child in
father’s purported costs. Further, she argues that the trial
348 Douglas and Minzer
court was required to hold a hearing and erred in denying
her request. See UTCR 5.050(1) (allowing oral argument on
motions in civil cases when certain requirements are met).
Father contends that mother did not raise the issue
of child-care costs to the trial court and thus failed to pre-
serve her arguments on that issue. We reject father’s preser-
vation argument. Mother’s objection to the general judgment
included an objection to the child support order because it “is
substantially in excess of what is permitted by Oregon law,
per the Oregon Child Support Guidelines,” and her request
for a hearing sought a “15-minute hearing to address the
issue that the General Judgment of Dissolution includes a
child support judgment that is based on a claim of daycare
costs that is well in excess of the amount allowed by the
guidelines.” Thus, mother’s objection was specific enough to
preserve her argument that father’s costs exceeded the max-
imum amount allowed. See State v. Clemente-Perez, 357 Or
745, 752, 359 P3d 232 (2015) (explaining that, to adequately
preserve an issue, a party must provide the trial court with
an explanation of his, her, or their objection that is specific
enough to ensure that the court can identify its alleged
error with enough clarity to consider and correct the error).
Because it is in excess of the limit set by the guidelines, the
court erred in setting father’s child-care costs as $2,000.
In Oregon, the maximum cost allowable for child
care varies based on geographic location and the child’s age.
When the trial court issued its general judgment, and when
the supplemental judgment was entered in March 2022, E
was in the one to three-year-old category. In the metropolitan
area of Portland, where the parties resided, the maximum
allowable child-care cost for that age group was $1,404.1 See
OAR 137-050-0735 Table 1 (June 1, 2019) (setting maximum
allowable costs); see also DeShaw and Nahar-DeShaw, 276
Or App 713, 716, 369 P3d 1194 (2016) (applying the guide-
lines in effect at the time the support order was entered).
Accordingly, the court erred in setting father’s child-care
cost at $2,000, and we reverse and remand for recalcula-
tion of child support. Based on that disposition, we need not
1
Table 1 was amended effective December 2, 2022. Because of that change,
and because E is now in a different age category, the maximum under the current
rule is $1,400.
Cite as 334 Or App 341 (2024) 349
address mother’s other asserted errors related to child-care
costs because the trial court and the parties will have the
opportunity to address them, including the applicability of
the UTCR for hearings on motions, on remand.
Mother’s final assignment of error challenges the
trial court’s granting of attorney fees and costs to father. After
entry of the supplemental judgment, father sought attorney
fees in the amount of $66,025.50, which included fees from
three separate attorneys throughout the dissolution process.
The court issued an order granting the award, concluding
that the fees were reasonable “given [mother’s] behavior up to
and including the trial.” Mother argues that reversal of the
court’s judgment for any of her above assignments of error
requires reversal of the attorney fee award. Alternatively,
she contends that the court abused its discretion because the
court’s findings related to the award lacked specificity.
Father contends that reversal on mother’s second
and third assignments of error should not result in a rever-
sal of the award of attorney fees because the “child support
issue was the subject of extremely minimal attention” at the
trial court. Father cites to no authority for that contention,
however, and we have found none. Rather, on appeal, if we
reverse a judgment “to which an award of attorney fees or
costs and disbursements relates” the award of attorney fees
“shall be deemed reversed.” ORS 20.220(3); see also State
ex rel Select Reform Com. v. City of Jefferson, 306 Or App
239, 246, 474 P3d 399 (2020) (explaining that “[i]f we reverse
the general judgment, the attorney fee award in the supple-
mental judgment will also be reversed by operation of law”).
Here, the attorney fee award related to the supplemental
judgment, which we reverse in part. Accordingly, the attor-
ney fee award is reversed as a matter of law. On remand, the
parties and the court will have an opportunity to address
whether the findings and ultimate determination comports
with the requirements for an attorney fee award in a case
where the court found that both parties may have been
“clouded” by the animosity between the two.
Award of child support reversed and remanded;
award of attorney fees and costs reversed; otherwise
affirmed.