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
                                   

    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.
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 (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, 

, 

 (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,

, 

 (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, 

, 

 (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.”
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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, 

, 

 (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
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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, 

, 

 (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, 

, 

 (1990),
rev den, 

 (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, 

, 

 (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, 

. 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, 

, 

 (2003); see also Kelly v. Owens, 

, 

, rev den, 

 (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, 

, 

 (2000) (describing abuse
of discretion standard of review).
        Affirmed.