Hill v. Hill

458

Argued and submitted December 5, affirmed December 29, 2022

In the Matter of the Marriage of

Patricia C. HILL,

nka Patricia C. LaSalle,

Petitioner-Respondent,

v.

Thomas W. HILL,

Respondent-Appellant.

Deschutes County Circuit Court

13DS0598; A176750

523 P3d 163

In this marital dissolution case, husband appeals from an order of the trial

court denying his motion under ORCP 71 A or C to set aside a supplemental

judgment dividing with wife his Tier One pension from the Public Employees

Retirement System (PERS). Husband contends that the trial court abused its

discretion in failing to set aside the judgment based on an oversight or omission

by the dissolution court or under the court’s inherent authority to correct an

extraordinary error, because, inconsistent with the parties’ general judgment,

the supplemental judgment mistakenly allocated to wife’s account a portion of

husband’s employer’s Money Match contribution to husband’s pension. Held: The

trial court’s explanation for why it rejected husband’s request for relief from the

supplemental judgment shows that it did not abuse its discretion in determining

that the entry of the supplemental judgment was not the result of an oversight or

omission or was not an extraordinary error that the court was required to correct

under its inherent authority.

Affirmed.

Alicia N. Sykora, Judge.

Brad S. Daniels argued the cause for appellant. Also on

the briefs were Jacob C. Goldberg and Stoel Rives LLP.

David G. Brown argued the cause for respondent. Also on

the brief was Merrill O’Sullivan, LLP.

Before Tookey, Presiding Judge, and Egan, Judge, and

Kamins, Judge.

KAMINS, J.

Affirmed.

Cite as 323 Or App 458 (2022) 459

KAMINS, J.

In this marital dissolution case, husband appeals

from an order of the trial court denying his motion under

ORCP 71 A and C to set aside a supplemental judgment

dividing his Tier One pension from the Public Employees

Retirement System (PERS). We review the trial court’s rul-

ing for an abuse of discretion, Cam and Cam, 216 Or App

358, 364, 174 P3d 1018 (2007), conclude that the trial court

did not abuse its discretion in denying the motion, and there-

fore affirm.

In August 2016, the dissolution court dissolved the

parties’ marriage of 40 years by a stipulated general judg-

ment of dissolution. The general judgment provided that

wife would be entitled to “the specified amount of $172,516”

from husband’s Tier One pension account with the Oregon

Public Employees Retirement System (PERS), and that hus-

band was entitled to his “PERS Tier [One] [account], less the

sum of $172,516 distributed to [wife].”

In their dissolution proceeding, wife was represented

by attorney Brown, and husband was represented by attor-

ney Johnson. In October 2017, wife hired attorney Williams,

a specialist in PERS qualified domestic relations orders

(QDROs), to draft an order setting forth the terms of the

general judgment’s division of husband’s PERS pension,

pursuant to ORS 238.465 (describing requirements for

PERS pension payments to an “alternate payee,” “to the

extent expressly provided for in the terms of any judgment

of annulment or dissolution of marriage or of separation, or

the terms of any court order or court-approved property set-

tlement agreement incident to any judgment of annulment

or dissolution of marriage or of separation”).

Williams drafted a QDRO that provides that wife is

entitled to $172,516 from husband’s Tier One PERS account,

and that “[wife’s] account shall also be credited with its pro-

portionate share of the Money Match benefit at the time

Participant becomes eligible to receive retirement, disability

or death benefits.”1 Williams shared a draft of the proposed

1

Upon retirement, Tier One PERS members receive a defined benefit in the

form of a service retirement allowance calculated using one of three formulas:

460 Hill v. Hill

QDRO with Brown and Johnson, along with a letter includ-

ing an explicit description of the effect of the inclusion of the

Money Match, and Brown and Johnson agreed to it.2

The dissolution court incorporated the QDRO in a

supplemental judgment signed by Brown and Johnson. The

supplemental judgment attached as exhibits and incorpo-

rated by reference the PERS forms for designating an alter-

nate payee. The form relating to the division of husband’s

Tier One pension with wife as an “alternate payee” asked,

“Is the alternate payee awarded a share of employer match-

ing dollars?” Williams had checked the box “yes.” Brown

and Johnson had also reviewed and approved that document

before it was submitted to the court.

The parties were not signatories to the QDRO; only

their lawyers signed. Husband asserted that he had not

consented to share with wife the Money Match portion of

his pension and did not become aware of the QDRO or the

supplemental judgment until “mid-2018.” Husband filed a

motion under ORCP 71, seeking to correct the supplemental

judgment under ORCP 71 A or C to eliminate the provisions

relating to payment to wife’s account of a share from the

Money Match portion of husband’s pension.

At a hearing on the motion, husband testified that

he had had no intention to share the Money Match portion

of his pension with wife; wife testified, in contrast, that she

assumed that she would have a share of the Money Match.

Williams testified that, in drafting the QDRO, he had

referred to the general judgment of dissolution, and that he

had not interviewed the parties. He offered the opinion that,

unless it is expressly excluded from the general judgment,

Full Formula, Formula Plus Annuity, or Money Match. James v. State of Oregon,

366 Or 732, 735, 471 P3d 93 (2020). Under the Money Match method, the retired

member receives an annuity based on his or her member account balance, which

is matched by an equal annuity that the member’s employer funds. See Strunk

v. Public Employees Retirement Board, 338 Or 145, 160-61, 108 P3d 1058 (2005)

(detailing the benefit formulas).

2

Williams’s letter to Brown and Johnson stated:

“Specifically, $172,516 of [husband’s] account as of December 31, 2015, plus

subsequent earnings thereon, is to be assigned into a separate account to

be established in [wife’s] name. The account will be doubled by the ‘money

match’ benefit at the time of retirement.”

Cite as 323 Or App 458 (2022) 461

the alternate payee’s share of a Tier One PERS pension gen-

erally includes a proportionate share of the Money Match

portion of the pension. Thus, in drafting the QDRO, Williams

assumed that the parties intended that wife’s account would

include a proportionate share of the Money Match portion of

husband’s pension. As noted, the parties’ attorneys signed

the supplemental judgment incorporating the QDRO that

Williams drafted.

ORCP 71 A provides:

“Clerical mistakes in judgments, orders, or other parts

of the record and errors therein arising from oversight or

omission may be corrected by the court at any time on its

own motion or on the motion of any party and after such

notice to all parties who have appeared, if any, as the court

orders.”

At the relevant time,3 ORCP 71 C provided:

“This rule does not limit the inherent power of a court to

modify a judgment within a reasonable time, or the power

of a court to entertain an independent action to relieve a

party from a judgment, or the power of a court to grant

relief to a defendant under Rule 7 D(6)(f), or the power of a

court to set aside a judgment for fraud upon the court.”

Husband asserted that the supplemental judgment’s

inclusion in wife’s account of a proportionate share of the

Money Match portion of his pension was inconsistent with

the terms of the general judgment, which he argued should

be deemed to control, and that the supplemental judgment

should therefore be corrected under ORCP 71 A, as a “cler-

ical mistake.” He further contended that the error was suf-

ficiently grave to support the court’s exercise of its inherent

authority under ORCP 71 C to grant relief by removing the

Money Match provisions from the supplemental judgment.

The trial court denied husband’s motion to set aside

the supplemental judgment. The court rejected husband’s

assertions relating to contract construction and whether

the general judgment should control over the terms of

3

In 2021, the legislature amended ORCP 71 C by Oregon Laws 2021, chapter 97,

section 2, effective January 1, 2022, but the amendment was not substantive and

does not bear on this case.

462 Hill v. Hill

the supplemental judgment. The court concluded that the

record would not support a finding that the inclusion of the

Money Match was the result of a clerical mistake—rather,

the court concluded, it was the result of a judgment call by

Williams that was agreed to by both parties’ counsel; thus,

the court declined to grant relief under ORCP 71 A. The

court further reasoned that this case does not present the

type of extraordinary circumstance—fraud, duress, techni-

cal error, or error of the court—that might support the exer-

cise of the court’s inherent authority to grant relief from the

judgment under ORCP 71 C.

On appeal, husband contends that the trial court

abused its discretion in declining to set aside the supplemen-

tal judgment. In his first assignment, he reasserts his con-

tention that the supplemental judgment should be set aside

because it is inconsistent with the general judgment, which

he argues should control and which made no mention of the

Money Match portion of husband’s pension and very clearly

provided that husband was entitled to his full PERS Tier

One pension, less wife’s share in the amount of $172,516.

Wife responds that the general judgment is ambiguous as

to the parties’ intentions with respect to the Money Match

portion of the pension, and that the supplemental judgment

simply clarified the parties’ intentions.

It is possible, as husband contends, that, in allocat-

ing to wife’s account a part of the Money Match portion of

his pension, the QDRO and supplemental judgment went

beyond the terms of the general judgment, which stated

a specific dollar amount and made no reference to Money

Match. But the parties were free to agree to those terms,

even if their agreement modified the general judgment.

See Spady v. Graves, 307 Or 483, 488, 770 P2d 53 (1989)

(Although the court could not do so, after the entry of a

dissolution judgment, the parties are free to negotiate and

agree to a modification or settlement of the property division

between themselves.). Further, as the trial court correctly

observed, whether husband has established a basis for relief

from the supplemental judgment under ORCP 71 does not

depend on a construction of the two judgments or whether

one judgment should be enforced over the other; rather, it

depends on whether husband is entitled to relief under the

Cite as 323 Or App 458 (2022) 463

criteria described in ORCP 71 A or C. We turn to that issue,

which is presented by husband’s second and third assign-

ments of error.

Under ORCP 71 A, the court may correct a judg-

ment that includes “clerical mistakes” or arises “from over-

sight or omission.” At the hearing, husband argued only that

the supplemental judgment was entered as the result of a

clerical mistake by the dissolution court. The trial court con-

cluded that the supplemental judgment was not the result of

a clerical mistake. In his second assignment of error, hus-

band does not seriously dispute that conclusion. See Ramis

Crew Corrigan & Bachrach, LLP v. Stoelk, 193 Or App 700,

707, 92 P3d 154 (2004) (A clerical mistake is a mistake or

omission that is not a “deliberate result or judicial reason-

ing and determination, regardless of whether it was made

by the clerk, by counsel or by the judge.” (Quoting Hopkins

and Hopkins, 102 Or App 655, 658-59, 796 P3d 660 (1990),

rev den, 311 Or 87 (1991).)). Rather, husband now contends

that the supplemental judgment was entered by the disso-

lution court through an oversight or omission in failing to

notice that the Money Match provision of the supplemental

judgment was inconsistent with the general judgment.

The trial court did not make an explicit finding

about “oversight or omission,” since it was not specifically

asserted by the parties. Thus, the argument that husband

now makes does not appear to be preserved. But assuming

that husband’s contentions below about “clerical mistake”

under ORCP 71 A preserved the “oversight or omission”

issue for our review, see McClure v. Lebenbaum, 181 Or

App 268, 274, 45 P3d 1038 (2002) (stating that a “clerical”

mistake is the kind of mistake in a judgment that causes

the judgment, through oversight or omission, not to reflect

what occurred in the proceeding that led to the judgment),

we reject it. After the entry of the general judgment, the

parties, through their attorneys, entered into an agreement

concerning the division of husband’s PERS pension, which,

as we have noted, they were free to do. Spady, 307 Or at

488. The supplemental judgment accurately reflected the

parties’ agreement. Under that circumstance, we conclude

that the evidence would support the conclusion that the dis-

solution court’s entry of the supplemental judgment was not

464 Hill v. Hill

the result of an oversight or omission. We therefore reject

husband’s contention in his second assignment of error that

the trial court abused its discretion in denying husband’s

motion under ORCP 71 A.

Under ORCP 71 C, the court has inherent power “to

entertain an independent action to relieve a party from a

judgment.” In his third assignment, husband contends that

the trial court abused its discretion in failing to exercise its

inherent authority under ORCP 71 C to grant relief from or

to correct what husband characterizes as an erroneous sup-

plemental judgment.

As the trial court correctly explained, we have held

that a court’s inherent authority to modify a judgment under

ORCP 71 C exists only to make technical amendments, to

correct trial court error, or to grant relief in “extraordinary

circumstances,” such as fraud, duress, breach of fiduciary

duty or gross inequity. See Taylor v. Morrison, 188 Or App

519, 524, 72 P3d 654 (2003); see also Kelly v. Owens, 175 Or

App 103, 109, 27 P3d 514, rev den, 332 Or 631 (2001). In

rejecting husband’s request for relief under ORCP 71 C, the

trial court noted the absence of those circumstances—there

was no fraud, the asserted discrepancy was not the result of

court error, and the asserted discrepancy could not be fixed

with a simple “technical correction.” Rather, the court would

be required to exercise judgment in determining whether

the supplemental judgment was inconsistent with the gen-

eral judgment. The trial court further noted that husband’s

counsel, on husband’s behalf, had signed off on the QDRO

after having been alerted by Williams to the Money Match

provision and having had a full opportunity to object. The

trial court’s explanation shows that its decision was within

the range of legally correct discretionary choices and pro-

duced a permissible, legally correct outcome, and that the

trial court therefore did not abuse its discretion in denying

husband’s motion for relief under ORCP 71 C. See State v.

Rogers, 330 Or 282, 312, 4 P3d 1261 (2000) (describing abuse

of discretion standard of review).

Affirmed.