Kerridge v. Jester ( 2021 )

599
Argued and submitted August 21, 2020, affirmed December 29, 2021, petition
for review denied April 7, 2022 (369 Or 507)
Benjamin KERRIDGE,
as Personal Representative of
the Estate of Dan R. Webb,
Plaintiff-Respondent,
v.
Kim JESTER,
Defendant-Appellant.
Curry County Circuit Court
09CV0835; A170632
502 P3d 1206
Defendant assigns error to the trial court’s denial of her motion for relief
from a judgment. The judgment ordered the sale of property that defendant
owned with her former domestic partner, Webb, who died before the property
was sold. Defendant contends that the judgment did not extinguish her right
of survivorship and that therefore, when Webb died, title passed to defendant.
She argues that the judgment should be set aside because it is no longer equi-
table for the judgment to have prospective application under ORCP 71 B(1)(e).
Held: The trial court did not err in denying defendant’s motion. Assuming that the
judgment did not terminate defendant’s right of survivorship and that defendant
became the sole owner when Webb died, that change in title is not a cognizable
basis for concluding that it is no longer equitable that the judgment should have
prospective application. The Court of Appeals found that the parties intended to
share in the property equally and ordered the sale and division of the proceeds
accordingly. The rights and obligations created by the judgment were not con-
ditioned or dependent upon both parties, together, holding title to the property.
Affirmed.
Jesse C. Margolis, Judge.
George W. Kelly argued the cause and filed the brief for
appellant.
Garrett K. West argued the cause for respondent. Also on
the brief was Jarvis, Dreyer, Glatte & Larsen, LLP.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
SHORR, J.
Affirmed.
600 Kerridge v. Jester
SHORR, J.
Defendant appeals from an order denying her
motion for relief from a 2011 judgment. That judgment
ordered the sale of property that defendant owned with
her former domestic partner, Webb, who is now deceased.
Plaintiff, the personal representative of Webb’s estate, seeks
enforcement of the judgment. Defendant argues that the
judgment should be set aside, because it is no longer equita-
ble for the judgment to have prospective application under
ORCP 71 B(1)(e). For the reasons below, we disagree and
therefore affirm.
On review of an order denying a motion to set aside
a judgment, we state the undisputed facts in the light most
favorable to the moving party. However, we accept the
trial court’s findings of disputed fact, if there is evidence
to support those findings. Union Lumber Co. v. Miller, 360
Or 767, 769, 388 P3d 327 (2017). Webb and defendant were
in a romantic relationship that began in the 1980s. They
lived together from 1994 until the relationship ended in
2008. They were never married, but they maintained a joint
bank account and, in 1995, Webb and defendant purchased
property together. The deed conveyed that property to Webb
and defendant “not as tenants in common, but with right
of survivorship.” Webb and defendant purchased the prop-
erty with the intent of building a house to live in together,
which they eventually did. Monthly payments for the prop-
erty were made from the joint account. Most of the money in
the joint account was deposited by Webb.
In 2008 Webb and defendant separated and Webb
moved out of the house. Webb brought an action for parti-
tion and contribution. He requested that the property be
sold and sought reimbursement for various costs and for a
portion of the purchase price. He also alleged that defendant
had excluded him from the property during their period
of separation and he sought rent for that time. Defendant
counterclaimed, alleging that there was an implied agree-
ment between the parties that they intended to share in
the property equally and asking the court to determine the
respective interests in the property in accordance with that
implied agreement.
Cite as 316 Or App 599 (2021) 601
After a trial, the court ordered Webb and defen-
dant to sell the property and share the proceeds. The court
issued a letter opinion explaining its findings and rulings.
The court found that the “parties’ intention was [that] they
would both contribute to the property, live there, and ulti-
mately sell it.” Although Webb and defendant “did not con-
tribute equally to the property[,]” they “intended that they
would each have an equal share in the property.” The court
also concluded that an “equitable and equal partition of
the property cannot be had without great prejudice to the
owners of the property.” According to the court, defendant
was initially uninterested in selling the property but “later
changed her position” and stated “that she wants to sell the
property.” The court found that Webb also changed his view
“that the court should perform an accounting of the parties
contributions to the property and credit each party accord-
ingly” and that his position at trial was instead “reflective of
the parties original intent regarding the property.”
In the letter, the court also discussed the applicable
law, drawing on principles applicable in nonmarital dissolu-
tion cases. The court explained that
“[t]his case is relatively simple in that it is clear that the
parties intended that the property would be jointly owned,
jointly contributed to, and that both parties would share
equally in the value of the property. * * * In the case of a dis-
solution of a domestic partnership, the division of property
accumulated during a period of cohabitation begins with
an inquiry as to the intent of the parties, and if an intent
can be found, then that intent will control the property
division. * * * Here, applying either the rules of co-tenancy
or the rules as announced by the court of appeals in rela-
tion to division of assets in the context of a dissolution of a
domestic partnership, the outcome is the same: the parties
will share equally in the property, with the exception of the
greater contribution to the payoff by Mr. Webb.”
The above findings and reasoning were expressly
incorporated in the judgment. In the judgment, the court
ordered “that the property shall be sold” and that “[b]oth
parties will cooperate with the sale of the property.” The
judgment generally provided that the proceeds of the
sale would be shared equally save for certain offsets that
602 Kerridge v. Jester
benefitted Webb to reflect defendant’s unpaid rent and an
outstanding loan. Defendant, in turn, received credit for the
taxes and insurance that she had paid while she possessed
the property. The court also ordered defendant to vacate the
home and awarded possession of the property to Webb until
it was sold. Once Webb took possession, he would pay rent to
defendant until the time of sale. The court retained jurisdic-
tion “over [the] matter pending the sale of the property.”
Webb took possession of the property in 2011 in
accordance with the judgment. Webb remained in posses-
sion of the property until 2018, when he died. Contrary to
the court’s order and judgment, the property was never sold.
After Webb’s death, the personal representative for Webb’s
estate moved to substitute himself as the party plaintiff and
reopen the case. The court granted the motion and ordered
the parties “to continue to comply with the terms of the
General Judgment.”
After learning that defendant did not intend to
cooperate in the sale, plaintiff moved to enforce the 2011
judgment. In response, defendant moved for relief from the
judgment under ORCP 71 B(1). Defendant made several
arguments under that rule. As it relates to this appeal,
defendant contended that the right of survivorship in
Oregon is “indestructible,” and that the right of survivor-
ship was not extinguished by the 2011 judgment. Therefore,
according to defendant, title passed to her at the time of
Webb’s death and defendant was the sole owner of the prop-
erty. Defendant argued that Webb engaged in misconduct
by failing to enforce the judgment before he died and that it
would be “fundamentally unfair” for Webb’s estate to benefit
from the judgment. Defendant also argued that it was no
longer equitable that the judgment should have prospective
application given Webb’s failure to sell the property and the
fact that defendant was now the sole owner.
In response, plaintiff argued that the judgment
remained equitable and alleged that Webb had tried to
comply by listing the property for sale, but had not found a
buyer. Plaintiff further noted that, under the terms of the
judgment, defendant would receive rent for the time that
Webb had possessed the property until his death.
Cite as 316 Or App 599 (2021) 603
After a hearing, the court denied defendant’s request
for relief from the judgment and granted plaintiff’s motion
to enforce the 2011 judgment. In a letter opinion explaining
those decisions, the court found that, although “the suit was
initially styled simply as a suit for partition,” the parties “lit-
igated the matter as though it were a dissolution of domestic
partnership.” The court noted that defendant’s “pleadings
reflect[ed] that” and that the court had “expressly used prin-
ciples applicable to a dissolution of a domestic partnership”
in resolving the dispute. And, the court explained, because
the parties had “both sought a judgment which would result
in the destruction of survivorship,” the “bar to unilateral
destruction of survivorship did not apply.” Instead, the 2011
judgment “reflect[ed] an action explicitly requested by both
parties; that being a determination of the parties’ rights as
to [the] property and a judgment directing the disposition of
the property.” That determination of the parties’ rights and
accordant disposition of the property, the court concluded,
still applied despite Webb’s death.
On appeal, defendant contends only that it is ineq-
uitable for the 2011 judgment to have prospective applica-
tion under ORCP 71 B(1)(e) and that the trial court erred
in concluding otherwise. As we understand that argument,
defendant asserts that the judgment, by its terms, did not
extinguish the right of survivorship. Accordingly, when
Webb died, title passed to defendant and she is the sole
owner of the property. Therefore, defendant argues, plaintiff
has “no basis for claiming an interest in the property or for
seeking enforcement of the general judgment” and it is “no
longer equitable or proper to sell the property and divide the
proceeds.”
Plaintiff responds that the 2011 judgment termi-
nated defendant’s right of survivorship. That is so, plain-
tiff argues, because the judgment dissolved Webb and
defendant’s unregistered domestic partnership and divided
Webb and defendant’s shared asset. In other words, plaintiff
argues that the termination of the survivorship interest is
implied in the court’s order to sell the property, because the
court intended to divide the parties’ interests in the prop-
erty. Therefore, plaintiff asserts that the 2011 judgment
604 Kerridge v. Jester
“should supersede [the] language of the property warranty
deed.” Plaintiff also insists that the terms of the 2011 judg-
ment remain equitable. He contends that Webb made con-
siderable investments in the property, and that it would be
unfair for defendant “to get virtually all of Webb’s assets
given their romantic relationship ended over a decade ago.”
We begin by clarifying what issues are before us
and how they relate. In doing so, it is helpful to understand
ORCP 71 B(1)(e) and how a person may obtain relief from a
final judgment under that rule. “A judgment sets out a trial
court’s final determination of a matter.” Webber v. Olsen, 330
Or 189, 196, 998 P2d 666 (2000). “After a court has entered a
judgment, the law provides specific remedies that are avail-
able under the judgment.” Id. Those remedies are limited
and defined by various rules and statutes. See id. (describ-
ing various remedies and the sources of law for them). One
form of relief is found in ORCP 71 B(1)(e). That rule provides
that the court may relieve a party from a judgment if “the
judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judg-
ment should have prospective application.” ORCP 71 B(1)(e).
We review a trial court’s ultimate determination grant-
ing relief from a judgment under ORCP 71 B for abuse of
discretion. However, whether a moving party has asserted
a cognizable ground for relief under ORCP 71 B is a legal
conclusion that we review for errors of law. If the trial court
made express or implied findings of fact in reaching that
legal conclusion, we accept those findings if they are sup-
ported by evidence in the record. Union Lumber Co., 360
Or at 777-78. In other words, the decision whether to grant
or deny a motion brought under ORCP 71 B involves two
determinations subject to our review. First, the trial court
determines whether the moving party has asserted a valid
basis for relief. If the moving party has done so, then the
court makes a second, discretionary determination, whether
to grant relief on the asserted basis and on what terms. The
court makes that second, discretionary determination “con-
sistent with principles promotive of the regular disposition
of litigation.” Union Lumber Co., 360 Or at 778. The upshot
of that two-part decision is that, if we determine on appeal
Cite as 316 Or App 599 (2021) 605
that the moving party has not asserted a valid basis for
relief, our inquiry ends there. Consequently, we first deter-
mine whether defendant asserted a valid basis for relief. If
we conclude that she did not, the trial court did not err in
denying her motion.
The relevant provision of ORCP 71 B(1)(e) states that
a court may grant relief from a judgment if “it is no longer
equitable that the judgment should have prospective appli-
cation.” Under that rule, then, to assert a cognizable ground
for relief, defendant must demonstrate that the prospective
application of the judgment is “no longer equitable.”1 That
particular provision of ORCP 71 B(1)(e) codifies the common-
law rule that “a judgment with prospective operation may
be subject to change based upon changed conditions.” Dept.
of Human Resources v. Shinall, 148 Or App 560, 565-66, 941
P2d 616 (1997). Under the common-law rule, a person subject
to a judgment could “obtain relief against the consequences
of the judgment on account of some matter of defense or dis-
charge arising since its rendition and which could not have
been taken advantage of otherwise.” Wimber v. Timpe, 109
Or App 139, 145, 818 P2d 954 (1991).
The case law applying the “no longer equitable” pro-
vision of ORCP 71 B(1)(e) is sparse. In Shinall, the trial
court set aside a judgment declaring the paternity of a child
after new evidence came to light that indicated the possi-
bility that a different man was the father. Shinall, 148 Or
App at 562-63. Relying on the common-law “antecedents”
of ORCP 71 B(1)(e), we held that the rule did not support
setting aside the judgment because doing so would change
the substantive provisions of the judgment rather than the
manner of enforcement. Id. at 566. In contrast, in Albrich
v. Allstate Ins. Co., we affirmed a trial court’s decision to
set aside a judgment under ORCP 71 B(1)(e). 152 Or App
416, 419, 954 P2d 216, adh’d to on recons, 154 Or App 255,
962 P2d 699 (1998), rev den, 328 Or 365 (1999). There, the
1
It is unclear what, if any, circumstances might exist where we would
conclude that a trial court did not abuse its discretion in denying a ORCP 71
B(1)(e) motion if the trial court had concluded that the moving party had asserted
a cognizable ground for relief by demonstrating that the prospective application
of the judgment is no longer equitable. However, that issue is not properly before
us in the present case.
606 Kerridge v. Jester
plaintiff was injured in a car accident and sought coverage
from his insurer under his underinsured motorist coverage.
The plaintiff received an arbitration award in excess of his
coverage, but the award did not determine the extent of the
other driver’s liability. The plaintiff then settled his claim
with his insurer. When he was later unsuccessful in his suit
against the other driver, he filed the arbitration award as
a judgment to recover the full amount of his coverage. The
insurer moved to set aside the judgment. Id. at 418-19. We
held that it was “not equitable for plaintiff to enforce a judg-
ment that is based on a claim that he released before the
entry of judgment.” Id. at 419. Those cases, along with the
common-law rule, provide some limited guidance in under-
standing when a moving party has demonstrated that the
enforcement of a judgment is no longer equitable under
ORCP 71 B(1)(e). Perhaps because the provision is rooted in
equity, it is difficult to discern a bright line rule for the pro-
vision’s application. But the above cases at least establish
goalposts within which a trial court may determine whether
the enforcement of a judgment is no longer equitable. From
Shinall, we understand that, given the strong policy favor-
ing the finality of litigation, a change in circumstances that
results in some unfairness may not be enough to escape the
conclusive effect of a judgment. Rather, a change in condi-
tions or circumstances is more likely to constitute a valid
basis for concluding that the enforcement of the judgment is
no longer equitable if the change makes enforcement of the
judgment unnecessary or somehow thwarts the aim of the
judgment, as in Albrich.
With that background in mind, we turn to our
analysis of whether defendant has asserted a cognizable
ground for relief by demonstrating that enforcement of the
judgment is no longer equitable, which, as we explained
above, is a legal question. As noted, defendant argues that
the judgment did not extinguish the right of survivorship
and that, therefore, title passed to her at the time of Webb’s
death. That purported change in ownership is defendant’s
asserted basis for concluding that it “is no longer equitable
that the judgment should have prospective application.”
We conclude that defendant has not asserted a valid
basis for concluding that the prospective enforcement of the
Cite as 316 Or App 599 (2021) 607
judgment is no longer equitable. In reaching that decision,
we do not decide whether the judgment did or did not extin-
guish the right of survivorship. That is, we do not believe
enforcement of the judgment is no longer equitable, even
assuming that defendant is the sole owner by operation of
the right of survivorship due to the parties’ failure to fol-
low the court’s judgment and sell the property before Webb’s
death.
Defendant only briefly addresses why enforcement
of the judgment is no longer equitable if title has passed
to defendant. Defendant primarily contends that, because
Webb’s interest in the property passed to her instead of his
estate, plaintiff has “no basis for claiming an interest in
the property or for seeking enforcement of the general judg-
ment.” We disagree with defendant’s assertion that plaintiff
has no equitable basis for seeking to enforce the judgment.
As the trial court explained, this case was treated
by the court and the parties as if it were a dissolution of
an unregistered domestic partnership case. Therefore,
the principles applicable to an action to dissolve a domes-
tic partnership applied and the court had the authority to
divide the assets in accordance with the parties’ intent. Beal
v. Beal, 282 Or 115, 122, 577 P2d 507 (1978) (parties’ intent
should control property distribution in nonmarital dissolu-
tion cases); Manley v. McKinney, 313 Or App 544, 554-55,
496 P3d 663 (2021) (party cannot circumvent the legal prin-
ciples that apply when distributing real property between
two people in a nonmarital domestic relationship by filing a
partition action). The court found that the parties intended
to share the assets accumulated during the relationship
equally.
Accordingly, the court entered a final judgment
declaring the rights and obligations of the parties. ORS
18.082(1)(a) (upon entry of a judgment, the judgment “gov-
erns the rights and obligations of the parties that are sub-
ject to the judgment”). In the judgment, Webb and defendant
were both ordered to sell the property and to share the pro-
ceeds as outlined in the judgment. The judgment also spe-
cifically ordered “[b]oth parties [to] cooperate with the sale
of the property.” Rodrigues and Gerhards, 303 Or App 770,
608 Kerridge v. Jester
776, 466 P3d 1016 (2020) (In interpreting a judgment, “our
goal is to give effect to the trial court’s intent,” and, if the
judgment “is unambiguous, subject to only one reasonable
interpretation, we simply look to the text of the judgment to
determine its meaning.”).
Thus, under the plain terms of the judgment, both
Webb and defendant had rights to half the proceeds of the
sale and obligations to participate in the sale. Those rights
and obligations, as set forth in the judgment, were clearly
stated and unconditional. That is, those rights and obliga-
tions were not conditioned or dependent upon both parties,
together, holding title to the property. Defendant was and
still is obligated to participate in the sale under the judg-
ment. Webb had—and his estate now has—a right to half the
proceeds of that sale. ORS 115.305 (“All causes of action or
suit, by one person against another, survive to the personal
representative of the former and against the personal repre-
sentative of the latter.”); State ex rel English v. Multnomah
County, 348 Or 417, 441 n 13, 238 P3d 980 (2010) (rejecting
in a footnote the argument that the prevailing party’s death
extinguished her rights under trial court judgment); Libby
and Libby, 23 Or App 223, 230, 541 P2d 1077 (1975) (prop-
erty award granted in divorce was appealable by estate of
spouse where spouse died after entry of decree but prior to
initiation of appeal). We reject defendant’s argument that
the purported change in title would make a prospective
enforcement of the judgment inequitable.
Apart from the alleged change in title, defendant
does not identify other circumstances that might support a
conclusion that enforcement of the judgment is “no longer
equitable” under ORCP 71 B(1)(e). We do not foreclose the
possibility that a party might assert a cognizable ground for
relief under ORCP 71 B(1)(e) by demonstrating that enforce-
ment of a judgment is no longer equitable for reasons related
to fundamental unfairness. But we do not see, and defen-
dant has not identified, anything in the judgment that has
become so unfair as to conclude it is no longer equitable to
enforce it. Both parties failed to enforce the judgment for
several years, but neither was significantly disadvantaged
by that delay. Webb benefited by possessing the property
and defendant likewise benefited by accruing rent.
Cite as 316 Or App 599 (2021) 609
In fact, in our view, failure to enforce the 2011 judg-
ment would lead to an inequitable result here. The court
found that the parties intended to share equally in the prop-
erty during their relationship, despite Webb’s greater con-
tribution to the purchase and maintenance of the property.
To conclude that defendant was the sole owner of the prop-
erty and leave plaintiff with no right to the proceeds of the
sale due to the parties’ failure to follow the court’s order and
judgment prior to Webb’s death would amount to a windfall
for defendant. That would be contrary to the intent of Webb
and defendant both during their relationship and as later
reflected in their conduct that led to the court’s resolution of
the 2011 litigation.
In conclusion, we hold that defendant has not
asserted a valid basis for concluding that it would no lon-
ger be equitable for the 2011 judgment to have prospective
application. Because defendant did not assert a cognizable
basis for relief, we affirm the trial court’s denial of defen-
dant’s ORCP 71 B(1)(e) motion and order granting plaintiff’s
motion to enforce the 2011 judgment.
Affirmed.