Dintleman and Dintleman

No. 381 April 30, 2025 213

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of the Marriage of

Pamela Danell DINTLEMAN,

nka Pamela D. Cleveland,

Petitioner-Respondent,

and

Jeff Lee DINTLEMAN,

Respondent-Appellant.

Jackson County Circuit Court

080903D2; A180055

Benjamin M. Bloom, Judge.

Argued and submitted May 13, 2024.

Lauren Saucy argued the cause and filed the brief for

appellant.

James A. Wallan argued the cause and filed the brief for

respondent.

Before Ortega, Presiding Judge, Powers, Judge, and

Hellman, Judge.

HELLMAN, J.

Order denying motion for relief from judgment reversed

and remanded.

214 Dintleman and Dintleman

HELLMAN, J.

This consolidated appeal in a domestic relations

case concerns a supplemental judgment that was entered

following the parties’ stipulated general judgment of dissolu-

tion. In three assignments of error, husband challenges the

denials of his motions to correct the supplemental judgment

under ORCP 71 and to vacate the supplemental judgment

and the denial of his request to make an offer of proof. As

explained below, we conclude that the trial court erred as a

matter of law when it denied husband’s motion because hus-

band established a cognizable basis for relief under ORCP

71 B(1). Accordingly, we reverse and remand the order deny-

ing the motion for relief from judgment.

Because it is dispositive, we begin with husband’s

second assignment of error, which challenges the denial

of his motion under ORCP 71 B. “[A] trial court’s decision

[under ORCP 71 B] can rest on findings of disputed fact.”

Union Lumber Co. v. Miller, 360 Or 767, 777, 388 P3d 327

(2017). Accordingly, we “will defer to a trial court’s express

or implied findings of disputed fact underlying its legal

determinations.”

The parties were married in 1996 and the trial court

entered a stipulated judgment of dissolution in 2009. That

judgment provided that husband’s “military retirement ben-

efits shall be equally divided as of the date of marriage to

May 15, 2009,” and that the parties “shall cooperate with

each other in every respect to cause a Qualified Domestic

Relations Order (QDRO) as may be necessary to be entered

to achieve the intent of this agreement in the division of the

retirement asset and will split the cost of preparing such

QDRO equally.” In January 2013, wife’s attorney prepared a

supplemental judgment that awarded wife “38.05 percent of

[husband’s] final disposable military retired pay[.]” The judg-

ment referenced husband’s mailing address as a post office

box. The trial court entered the supplemental judgment.

Husband retired from the military in August 2021.

According to husband, in October 2021 he received a let-

ter from Defense Finance and Accounting Service (DFAS)

stating that wife “would receive 38.05 Percent of [husband’s]

Cite as 340 Or App 213 (2025) 215

entire retirement.” Husband filed a motion to correct the

supplemental judgment under ORCP 71 A, B, and C, argu-

ing that the supplemental judgment “[did] not accurately

reflect the distribution,” that the “DFAS letter was the first

that [he] was aware of the change in percentage of financial

compensation to [wife],” and that he did not receive notice of

the supplemental judgment until January 2022. The trial

court denied husband’s motion and found that “[t]he court’s

interest in the finality of judgment and orders is the deter-

mining factor in a court’s decision.”1 The trial court denied

husband’s subsequent motion to vacate the supplemental

judgment. This appeal followed.

On appeal, husband argues that the trial court

abused its discretion when it denied his motion for relief

from judgment. Specifically, husband argues that he estab-

lished excusable neglect under ORCP 71 B(1) because “he

received no notice” of the supplemental judgment, “the court

records show[ ] no motion or service was made on husband,”

and he “clearly did not stipulate to the [supplemental judg-

ment].” Moreover, husband contends that “he exercised rea-

sonable diligence” by filing the motion “within one year [of]

receiving notice of its existence.”

ORCP 71 B(1)(a) provides, in relevant part, that

“[o]n motion and upon such terms as are just, the court may

relieve a party or such party’s legal representative from a

judgment for * * * excusable neglect[.]” A party must file an

ORCP 71 B(1) motion “within a reasonable time,” and “not

more than one year after receipt of notice by the moving

party of the judgment.” Id.

“[T]he 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.” Kerridge v. Jester, 316 Or App 599, 604, 502 P3d

1206 (2021), rev den, 369 Or 507 (2022). We review the first

determination for errors of law. Id.; see also Union Lumber,

360 Or at 778 (“Conclusions that a trial court reaches under

1

“When there is a conflict between a written order and oral findings, the

written order controls and serves as the basis for appellate review.” State v.

McAllister, 72 Or App 611, 615 n 1, 696 P2d 1138 (1985).

216 Dintleman and Dintleman

ORCP 71 B as to whether a moving party’s neglect, inadver-

tence, surprise, or mistake constitute cognizable grounds

for relief, are legal rulings that an appellate court reviews

for errors of law.”).

“The focus of the inquiry is whether the totality

of the circumstances reflects that the party seeking relief

from judgment has taken reasonable steps to protect its

interests.” Wetzel v. Sandlow, 318 Or App 608, 616, 509 P3d

182 (2022) (internal quotation marks omitted). Accordingly,

“[a]ny actions taken or omitted by [the moving party] must

have been reasonable to show that their neglect was excus-

able.” Union Lumber, 360 Or at 781; see also Saldivar v.

Roberts, 240 Or App 371, 376, 246 P3d 91 (2011) (“[T]he

question here is whether defendants have offered a reason-

able explanation for their failure to take any action.”).

We have reviewed the record and conclude that the

trial court erred as a matter of law when it determined that

“there was no * * * excusable neglect under ORCP 71 B.” In his

motion, husband argued that “[w]e cannot know whether or

not the proposed Supplemental Judgment * * * ever arrived

at the post office box that [husband] briefly used prior to

the service of that document by mail” and that even if he

“were negligent in not adequately managing his addresses

for the purposes of non-child-support-related legal notifica-

tion years after the dissolution was completed,” that negli-

gence did not “foreclose relief.” (Emphasis in original; inter-

nal quotation marks omitted.) In support of that motion,

husband submitted a declaration stating that he obtained

the post office box in August 2012—five months before the

trial court entered the supplemental judgment—that he

“did inform [wife] of the change,” that he “wasn’t aware of a

requirement to advise anyone besides Support Enforcement

of both [his] physical residence and mailing address,” and

that he “kept the PO box open” for his daughter’s use.

Viewing husband’s conduct in light of the stipulated

dissolution judgment—which explicitly required the par-

ties to “cooperate” and “equally divide” husband’s military

retirement benefits during the marriage—we conclude that

husband’s failure to inform the trial court of a new mailing

address nearly three years after the dissolution judgment

Cite as 340 Or App 213 (2025) 217

was entered was reasonable. As a consequence, any neglect

“was excusable.” Hiatt v. Congoleum Industries, 279 Or 569,

577, 569 P2d 567 (1977) (concluding that the moving party

established “excusable neglect as a matter of law” in failing

to appear after a part-time employee “who had no memory

of the incident” received the summons and complaint but

“[f]or reasons not known, the documents were not received

by the legal department” because “[t]here is nothing implau-

sible about such evidence”); see also Much v. Doe, 311 Or

App 652, 656, 493 P3d 38, rev den, 369 Or 69 (2021) (“[A]

motion under ORCP 71 is typically addressed to the court

through written submissions, including affidavits and dec-

larations. Those declarations and affidavits become a part of

the record when submitted.”).

Further, we conclude that husband’s excusable neglect

establishes a “cognizable basis for relief” because wife was

not entitled to the supplemental judgment as entered.

Michael v. Pugel, 316 Or App 786, 793-94, 504 P3d 1231,

adh’d to as modified on recons, 318 Or App 564, 505 P3d

1108 (2022) (concluding that “the [attorney’s] inadvertence

in signing the mistaken judgment is, itself, a sufficient cog-

nizable basis for relief” because it “was not a judgment to

which [the] defendants were entitled” and the case was not

“the sort that typically becomes subject to a motion for relief

under ORCP 71 B(1)(a)—viz., one which the party was law-

fully entitled to have the court enter as a consequence of a

default or some analogous procedural failing or error on the

part of the party seeking relief”).

Here, the stipulated dissolution judgment required

the parties to “equally divide[ ]” husband’s military retire-

ment benefits “as of the date of marriage to May 15, 2009.”

However, husband submitted an affidavit with his ORCP

71 motion that indicated that the supplemental judgment

awarded wife an “inaccurate” share of husband’s military

retirement benefits. That affidavit—prepared by an attor-

ney who practiced “exclusively [in] family law and military

family law” and had “authored many articles on * * * retire-

ment benefits allocation in divorce cases”—stated that hus-

band served in the military for 364 months and that the

218 Dintleman and Dintleman

marriage was 140 months. As a consequence, the attorney

determined:

“The figure used by DFAS, 38.05%, is close to what we

believe represents the entire marital share. This would

mean that the pension share was improperly calculated

and the pension was incorrectly divided. Generally speak-

ing, a spouse is entitled to one-half of the marital share of

the employee’s retired pay. If 38.05% is the marital share,

then the [wife] would be entitled to one-half of that figure,

or 19.025%.”

Moreover, although the stipulated dissolution judg-

ment required the parties to “cooperate with each other in

every respect * * * to achieve the intent of [the] agreement

in the division of the retirement asset,” the record indicates

that husband had “zero knowledge” that wife’s counsel pre-

pared the supplemental judgment and that husband did not

receive it until 2022.2 Thus, “in the unique posture” of this

case, we conclude that the evidence was legally sufficient

to establish that wife was not entitled to the supplemental

judgment as entered and that husband has “provided a cog-

nizable basis for relief under ORCP 71 B(1)(a).” Michael, 316

Or App at 794. The trial court erred as a matter of law.

When, as here, a party has established a cognizable

ground for relief, a trial court “makes a second, discretionary

determination, whether to grant relief on the asserted basis

and on what terms.” Kerridge, 316 Or App at 604; Union

Lumber, 360 Or at 778 (explaining that a trial court must

make that decision “consistent with principles promotive of

the regular disposition of litigation”). In doing so, “courts

are liberal in granting relief, for the policy of the law is to

afford a trial upon the merits when it can be done without

doing violence to * * * established rules of practice.” Union

Lumber, 360 Or at 778 (internal quotation marks omitted);

see also Wood v. James W. Fowler Co., 168 Or App 308, 312,

7 P3d 577 (2000) (explaining that ORCP 71 B(1) “is to be

construed liberally to the end that every litigant shall have

his day in court” (internal quotation marks omitted)).

2

At the hearing on the ORCP 71 motion, wife’s counsel stated, “I assume,

as is often the case, my client wanted it done and she paid so that * * * the order

could be entered.”

Cite as 340 Or App 213 (2025) 219

We observe that, here, the trial court’s order on hus-

band’s ORCP 71 motion provided, without explanation: “The

court’s interest in the finality of judgment and orders is the

determining factor in a court’s decision.” Although a court

may consider finality in making its discretionary decision,

finality is not the only factor a trial court must consider

under ORCP 71 B. Michael, 316 Or App at 794. We have

identified a nonexhaustive list of factors that a court must

consider, including: “prejudice to [wife], whether [husband]

acted with reasonable diligence upon discovery of the mis-

take, and whether [husband] has alleged potentially meri-

torious claims.” Id. On remand, in making its discretionary

determination, the court should consider all the relevant

factors while keeping in mind our well-established principle

to construe ORCP 71 B “liberally to the end that every liti-

gant shall have his day in court.” Wood, 168 Or App at 312

(internal quotation marks omitted).

In light of the foregoing, we do not reach husband’s

first assignment of error concerning the trial court’s denial

of his motion to vacate the supplemental judgment because

we understand it to be raised as an alternative to the sec-

ond assignment of error. We also do not reach his third

assignment of error concerning an offer of proof because we

understand husband to argue that it would be necessary to

address it only if we concluded that the record was insuffi-

cient to reverse on his first two assignments.

Order denying motion for relief from judgment

reversed and remanded.