MacWhorter and Skakel ( 2023 )

544
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted February 9, affirmed March 8, 2023
In the Matter of the Marriage of
Robert G. MacWHORTER,
Petitioner-Appellant,
and
Susan G. SKAKEL,
Respondent-Respondent.
Jackson County Circuit Court
17DR07609; A176069
Charles G. Kochlacs, Judge.
Garret Ramsey argued the cause for appellant. On the
opening brief was Jamie L. Hazlett. On the reply brief were
Keith Fischer and Jamie L. Hazlett.
Ruth A. Casby argued the cause for respondent. Also on
the brief were Janet M. Schroer and Hart Wagner LLP.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 324 Or App 544 (2023) 545
TOOKEY, P. J.
Husband appeals supplemental judgments denying
husband’s motion to terminate spousal support and award-
ing attorney fees to wife. Husband raises five assignments
of error, challenging (1) the denial of his motion to compel
production; (2) the denial of his motion to strike under ORCP
21 E; (3) the denial of his motion to terminate spousal sup-
port; (4) the decision to award wife attorney fees under ORS
20.105; and (5) the amount of attorney fees. For the following
reasons, we affirm.
We decline husband’s request to review this case
de novo, as it is not “exceptional.” See ORS 19.415(3)(b) (pro-
viding that de novo review is discretionary in equitable
actions); ORAP 5.40(8)(c) (providing that court will exercise
discretion to review de novo “only in exceptional cases”).
First Assignment of Error. Husband challenges the
denial of his motion to compel production of two sets of
documents: (1) any and all communications between wife
and wife’s attorney from January 1, 2018, to present; and
(2) any and all communications between wife’s current
spouse, Hooten, and wife’s attorney from January 1, 2018, to
present. Husband argues that the trial court erred in deter-
mining that wife had not waived the attorney-client privi-
lege as to the first set of documents, and further erred in
disallowing production of the second set of documents on the
basis that they are protected work product under ORCP 36.
Wife responds that the requested documents are protected
work product under ORCP 36 B, and that husband did not
demonstrate a “substantial need” for those documents or an
inability to obtain them without “undue hardship,” nor did
he show that the denial of his motion substantially affected
his rights. Viewing the record “in a manner consistent with
the trial court’s ruling [and] accepting reasonable infer-
ences that the trial court could have made,” Goldsborough
v. Eagle Crest Partners, Ltd., 314 Or 336, 342, 838 P2d 1069(1992), we conclude that the trial court did not err in deter-
mining that wife had not waived attorney-client privilege
as to the first set of documents. Further, the trial court did
not err in determining that the second set of documents was
prepared in anticipation of litigation or abuse its discretion
546 MacWhorter and Skakel
in disallowing discovery of those documents pursuant to
ORCP 36 B. See Meyer v. Oregon Lottery, 292 Or App 647,
669, 426 P3d 89 (2018) (reviewing “a trial court’s decision
regarding whether a party may obtain documents created
in anticipation of litigation for abuse of discretion”).
Second Assignment of Error. Husband argues that
the trial court erred in denying his ORCP 21 E motion to
strike several “inflammatory, prejudicial, and irrelevant”
statements in a legal memorandum wife submitted below.
Wife responds that an ORCP 21 E motion to strike applies
only to pleadings, not legal memoranda, and that, in any
event, any error did not substantially affect husband’s
rights. We have reviewed the record, and we conclude that
there was no abuse of discretion. See Ross and Ross, 240
Or App 435, 439, 246 P3d 1179 (2011) (reviewing allow-
ance or denial of ORCP 21 E motion to strike for abuse of
discretion).
Third Assignment of Error. Husband next argues
that the trial court erred in denying his “civil evidentiary
motion” in which he asked the court to modify the stipulated
judgment of dissolution by “terminating [husband’s] spousal
support obligation to [wife].” Additionally, the parties dis-
pute whether husband’s payments to wife constitute spousal
support payments or a property division. We need not decide
whether those payments are spousal support or a property
division, because, in either case, we must affirm.
Spousal support may be modified on a change of
circumstances, ORS 107.135(1)(a), but a division of property
may not. Pope and Pope, 301 Or 42, 45, 718 P2d 735 (1986)
(“Notwithstanding the full equity powers granted to a court
in dissolution proceedings (ORS 107.405), there are statu-
tory and caselaw restrictions upon the power of the court[,]”
including that “property divisions of a decree are not sub-
ject to modification.”); Horesky and Horesky, 30 Or App 941,
569 P2d 34 (1977), rev den, 281 Or 1 (1978). If the distinc-
tion between support payments and property division is not
clear, the court must determine whether the payments are
support payments or a property division on the underly-
ing facts of the case. See id. The labels used by the parties
are not dispositive. Schaffer v. Schaffer, 57 Or App 43, 48,
Nonprecedential Memo Op: 324 Or App 544 (2023) 547
643 P2d 1300 (1982). The controlling issue is “the nature
and purpose of the award.” State ex rel Carrier v. Carrier,
40 Or App 407, 411, 595 P2d 827 (1979) (internal quotation
marks omitted).
Here, husband asserts that the “purpose of the
[spousal support] award was to equalize incomes” and “to
allow the parties to maintain a standard of living not dis-
proportionate than that enjoyed during the marriage.” But,
contrary to that assertion, the trial court determined that
“[s]pousal support was not awarded based on disparity of
income or lifestyle of the parties [but] was awarded in lieu
of a portion of Husband’s FERS Retirement.” That determi-
nation is supported by evidence in the record. See Harless
and Harless, 276 Or App 49, 54, 366 P3d 402 (2016) (review-
ing “the determination of the original purpose for which an
award of spousal support was made” for “any evidence”).
The stipulated judgment of dissolution provides, “In lieu of
a portion of Husband’s FERS Retirement, Wife is awarded
spousal support.” Thus, if the payments to wife were in lieu
of an award of a portion of husband’s pension, it is not sub-
ject to modification, Nelson and Nelson, 117 Or App 157, 160,
843 P2d 507 (1992) (“A spousal support award may preclude
modification if it is in the nature of, or in lieu of a property
award.”), and the trial court did not err in denying husband’s
motion.
If, on the other hand, husband’s payments to wife
constituted spousal support rather than a property division,
the trial court’s denial of husband’s motion was not in error.
“Modification of a spousal support award is proper if (1) the
original purpose of the award has been fulfilled, or (2) sub-
sequent changes have substantially affected one party’s
ability to pay or the other party’s need for support.” Minckler
and Minckler, 306 Or App 414, 419, 474 P3d 425 (2020).
Here, as noted above, the trial court determined
that “[s]pousal support was not awarded based on disparity
of income or lifestyle of the parties [but] was awarded in
lieu of a portion of Husband’s FERS Retirement,” and hus-
band does not persuasively develop an argument as to why
the court erred in determining that “there is no evidence
that the original purpose of the award has been fulfilled.”
548 MacWhorter and Skakel
Further, husband asserts that Hooten “pays [wife’s] utili-
ties, takes her on vacations, and has paid wife’s attorney fees
and mortgage payments throughout this litigation”; how-
ever, husband does not demonstrate why, in light of those
assertions and on this record, it was error for the trial court
to conclude that, “while [wife] remarried and appears to be
living comfortably, this is not a change of circumstances
sufficient to terminate spousal support.” See Williams and
Williams, 315 Or App 798, 803, 504 P3d 635 (2021) (“The
burden of establishing a change of circumstances is on the
party requesting the change.”). For those reasons—in addi-
tion to those articulated above—we conclude that the trial
court did not err in denying husband’s motion.
Fourth Assignment of Error. Husband also argues
that the trial court erred in awarding attorney fees and
costs to wife pursuant to ORS 20.105 (providing for award of
attorney fees “upon a finding by the court that the party will-
fully disobeyed a court order or that there was no objectively
reasonable basis for asserting the claim, defense or ground
for appeal”), in the absence of an explicit finding that hus-
band willfully disobeyed a court order or otherwise acted in
bad faith. The difficulty with that argument is that the only
plausible reading of the supplemental judgment awarding
those fees is that the court made the necessary finding; in
that judgment, the court explicitly cited to ORS 20.105 and
explained that wife was entitled to fees and costs for having
had to defend against husband’s motion to terminate spou-
sal support. See Magno, LLC v. Bowden, 313 Or App 686,
690, 496 P3d 1049 (2021) (affirming fee award under ORS
20.105 despite court’s order omitting “an explicit ‘finding’
that plaintiff had no objectively reasonable basis for bring-
ing his claim,” because “the only plausible reading of the
order is that the court made the necessary finding” where
order “expressly cited ORS 20.105” and “conclud[ed] that [the
prevailing party] was entitled to those fees”). Consequently,
we reject husband’s fourth assignment of error.
Fifth Assignment of Error. Husband challenges
the supplemental judgment’s award to wife of $63,859.64
for costs, disbursements, and attorney fees, arguing that
the amount of the award is “excessive compared to similar
cases” and “unreasonably high.” Wife argues that, given the
Nonprecedential Memo Op: 324 Or App 544 (2023) 549
factors to be considered under ORS 20.105 and ORS 20.075—
and in light of “the length of this proceeding, the numerous
motions and hearings, and the multi-day trial”—the award
is reasonable. Having reviewed the relevant portions of the
record, we see no basis for concluding that the trial court
abused its discretion in setting the amount of the fee award.
See Anderson v. Sullivan, 311 Or App 406, 410, 492 P3d 118,
rev den, 368 Or 702 (2021) (“[W]hether fees are reasonable
is a factual determination that we review for abuse of dis-
cretion.”); State ex rel Stewart v. City of Salem, 268 Or App
491, 497-98, 343 P3d 264, rev den, 357 Or 595 (2015) (noting,
with respect to fee award, that court’s “ ‘discretion’ embodies
a range of permissible outcomes, so that, even in identical
circumstances, different tribunals can, properly, reach dif-
ferent results”).
Affirmed.