Garcia v. Garcia

No. 1107 November 12, 2026 713 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON Linnea M. GARCIA, Petitioner-Respondent, v. Torivio M. GARCIA, Respondent-Appellant. Marion County Circuit Court 17DR19746; A189333 Sean E. Armstrong, Judge. Submitted October 22, 2026. Torivio M. Garcia filed the briefs pro se. Linnea M. Garcia filed the brief pro se. Before Aoyagi, Presiding Judge, Kamins, Judge, and Pagán, Judge. KAMINS, J. Affirmed. 714 Garcia v. Garcia KAMINS, J. This appeal arises from a supplemental judgment denying an award of attorney fees following a judgment modifying custody, parenting time, and child support in a marital dissolution proceeding. Father challenges the trial court’s denial of his request for fees, arguing that the trial court erred by declining to award fees on procedural grounds and by failing to apply the “mandatory” factors governing attorney fee awards in ORS 20.075. For the reasons that follow, we conclude that the trial court did not err in denying father fees altogether on procedural grounds and therefore was not required to apply the statutory factors applicable to determining the amount of any fee award. Father sought a modification of custody, parent- ing time, and support by filing a pro se motion for order of immediate danger and temporary custody on December 11, 2024. In February, father filed a notice of representation alerting the court that he was now represented by counsel. The matter proceeded through discovery and hearing and ultimately, through an agreement of the parties, resulted in a modification order. Father subsequently filed a “Statement of Attorney Fees,” in which his attorney sought fees pursu- ant to ORS 20.075 and ORS 107.105 and argued that moth- er’s litigation tactics reflected a refusal to act reasonably and justified a fee award. The trial court denied the request for fees: “Respondent sought attorney’s fees per ORCP 68. Respondent, who was self-represented at the time, filed a motion seeking modification of custody, parenting time, and child support on December 11, 2024. Respondent failed to plead the issue of attorney’s fees in that motion.” On appeal, father argues that the trial court erred as a mat- ter of law by denying the request for fees on the ground that father failed to file a motion under ORCP 68 rather than a “Statement of Attorney Fees.” Father’s argument reflects a misunderstanding as to the basis of the trial court’s denial of a fee award. The trial court did not deny fees because the “Statement of Attorney Fees” was not captioned as an ORCP 68 motion. Rather, the Nonprecedential Memo Op: 354 Or App 713 (2026) 715 trial court denied fees because father did not plead an enti- tlement to fees as required in ORCP 68 C(2)(a): “A party seeking attorney fees shall allege the facts, stat- ute, or rule that provides a basis for the award of fees in a pleading filed by that party. Attorney fees may be sought before the substantive right to recover fees accrues. No attorney fees shall be awarded unless a right to recover fees is alleged as provided in this paragraph or in para- graph C(2)(b)[1] of this rule.” ORCP 68C(2)(a). The motion giving rise to the judgment under review was the emergency motion father filed on December 11, 2024. As the trial court observed, that motion did not assert a right to attorney fees or otherwise put the opposing party on notice that fees would be sought in the proceeding. Nor was that notice provided in any other pleading in the case. Because father did not put mother on notice that he would seek fees, the trial court did not err in denying father fees. See Ornelas and Ornelas, 217 Or App 124, 131, 174 P3d 1077 (2007) (recognizing that “the pleading requirements set forth in ORCP 68 C(2) apply to dissolution cases” and the “provision that the party seeking fees must allege as much explicitly is a mandatory requirement that, if not followed, causes prejudice to the party deprived of the appropriate process”). Affirmed. 1 That provision provides: “If a party does not file a pleading but instead files a motion or a response to a motion, a right to attorney fees shall be alleged in the party’s motion or response, in similar form to the allegations required in a pleading.” ORCP 68 C(2)(b).