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Date: 02-25-2015

Case Style: In the Matter of the Marriage of Linda Sue Hostetler nka Linda Sue Miller and Ronald Jay Hostetler

Case Number: A149924

Judge: Duncan

Court: Oregon Court of Appealsl on appeal from the Circuit Court, Marion County

Plaintiff's Attorney: Richard Alway argued the cause and filed the briefs
for appellant.

Defendant's Attorney: Russ Lipetzky filed the brief for respondent.

Description: Husband appeals from a dissolution judgment,
assigning error to the trial court’s property division and its
denial of his request for attorney fees. With respect to the
property division, husband argues that the trial court erred
by failing to give him one half of the marital asset portion of
wife’s retirement accounts and by assigning all of the marital
debt to him. We conclude that, contrary to husband’s
arguments, the trial court engaged in the process contemplated
by ORS 107.105(1)(f) (2008) and properly exercised
its discretion in determining a just and proper division of
the parties’ assets and liabilities.1 With respect to the attorney
fees, husband argues that the trial court erred by failing
to explain its denial of his request for attorney fees. We
conclude that, because husband did not request, as required
by ORCP 68 (C)(4)(g), that the trial court state its findings
of fact and conclusions of law on the record, the court did not
err in failing to do so. Accordingly, we affirm.
The relevant facts are undisputed.2 After dating
intermittently for 17 years, the parties began living together
in March 2006, and they married in July 2007. They separated
in January 2010, and wife filed for dissolution in
March 2010. At the time of the dissolution trial, the parties
had been married approximately four years. Wife was
54 years old, and husband was 61. The parties have one
adopted child, a son, who was age nine at the time of trial.
After trial, the trial court entered a general judgment of dissolution
on September 30, 2011.
At the time of their marriage, husband was retired
and receiving a monthly pension benefit from the Oregon
1 The statute has been amended several times since the trial court entered
the dissolution judgment in this case. All references in this opinion are to the
version of the statute in effect at the time of the judgment.
2 Although we have discretion to review domestic relations cases de novo, neither
party has asked us to and we decline to do so. See ORS 19.415(3)(b) (describing
discretionary de novo review); see also ORAP 5.40(8)(c) (providing that we
exercise de novo review “only in exceptional cases”). Therefore, we are bound by
the trial court’s findings, provided that they are supported by evidence in the
record. Kaptur and Kaptur, 256 Or App 591, 596 n 2, 302 P3d 819 (2013) (in a
domestic relations case, if we do not exercise our discretion to review de novo, we
review the trial court’s factual findings to determine whether they are supported
by any evidence).
314 Hostetler and Hostetler
Public Employee Retirement System (PERS). At the time
of the dissolution trial, husband’s monthly income was
$6,598; he received $5,100 in PERS benefits and $1,498
in Social Security benefits based on his employment history.
He also received $962 in Social Security benefits for
the parties’ minor son, of whom he had custody. During
the marriage, husband stayed home to care for the parties’
son, and wife worked as a mental-health therapist. At the
time of the dissolution trial, wife’s monthly income from
employment was $4,301. Wife was also a member of PERS
and owned three retirement accounts related to her public
employment: a PERS Tier Two account, a PERS Individual
Account Program (IAP), and an Oregon Savings Growth
Plan (OSGP) account.
The parties’ dissolution trial was conducted over
two days. On the first day, the parties and the court resolved
most of the disputed issues relating to the dissolution,
including child custody, a division of their tangible personal
property, and the value of the family home. On the second
day, the parties resolved disputed issues relating to child
support. The remaining issues concerned the division of
the parties’ remaining assets (including the family home
and wife’s PERS accounts) and the division of marital debt.
Husband offered into evidence a proposed distribution of
assets and liabilities.
Husband requested an equal division of the marital
asset portion of wife’s PERS accounts. According to
husband, the account balances at the time of trial were as
follows: $29,386 in the Tier Two account, $27,297 in the
IAP account, and $11,818 in the OSGP account, for a total
of $68,501. After deducting the premarital value of the
accounts and estimated future taxes, husband calculated a
net marital increase in value of $23,153. Wife did not dispute
those figures. Husband requested an award of half of
the accounts’ net marital increase: $11,576.
Husband offered evidence that the debt accumulated
by the parties during the marriage—and prior to their
separation—totaled $8,469. That debt, according to husband,
derived from a credit card, a credit line, and a medical bill
for the parties’ son. Wife did not dispute either the amount
Cite as 269 Or App 312 (2015) 315
or nature of the marital debt. Husband indicated that he was
currently paying the debt and would continue to do so, but
requested that half of the value of the debt be “attributable
to [wife]”; that is, that wife’s portion of the marital debt be
“added in some manner” to any award to husband.
The trial court explained that it was not going to
rely on husband’s proposed division or attempt to make a
mathematically equal division of the marital assets and
liabilities. Rather, because of a number of considerations
(including the long-term nature of the parties’ relationship,
husband’s monthly retirement income, the award to husband
of the marital residence—including its anticipated
appreciation in value—free of any interest by wife, and husband’s
receipt of the child’s Social Security benefits), the
court said that an equal division of marital assets and liabilities
had been “rebutted,” and that it would attempt to
make an equitable division of the assets and liabilities that
permitted each of the parties to maintain a lifestyle similar
to that which they had before the dissolution. Therefore, the
court rejected husband’s suggestion that the court equalize
the property and debt division through a division of wife’s
retirement accounts, which the court considered to be small
compared to husband’s.
Although husband’s PERS account had been earned
prior to the marriage and the court believed that it could not
divide that asset or its income stream, the court nonetheless
concluded that it was appropriate to consider husband’s
retirement income in determining an equitable distribution
of the parties’ assets. The court explained, “I’m not going to
give any of [husband’s retirement income] to [wife]. What I
am going to do is consider it when I try to do some equitable
distribution * * *.” The court thus awarded 90 percent of the
overall balance of wife’s retirement accounts to wife and 10
percent to husband. The court did not distinguish between
the premarital and marital portions of the accounts.3
3 Rather than dividing only the marital-asset portion of wife’s retirement
accounts, which husband estimated to be $23,153, the trial court divided the
full value of the accounts—$68,500—without accounting for tax consequences.
Husband asserts that the court’s award of 10 percent of the value of the accounts
to husband is nonetheless “short of his entitlement of $11,576 by some $6,370,
after applying a 24% taxation of the court’s award.”
316 Hostetler and Hostetler
In addition to seeking one half of the marital portion
of wife’s retirement accounts, husband sought to be
credited for his payment of the marital debt through some
form of “equalization.” The trial court rejected any form of
equalizing judgment, explaining that it did not want either
party to owe money to the other. The judgment allocated the
entirety of the parties’ marital debt to husband.
Finally, the trial court denied both parties’ requests
for attorney fees without explanation. At trial, the court simply
stated, “I’m not going to award attorney’s fees to either
one, you can be responsible for your own fees.” Likewise,
in the dissolution judgment, the court ordered that “[b]oth
parties [be] responsible for their own attorney fees and
costs.”
On appeal, husband raises three assignments of
error. The first two assignments pertain to the trial court’s
division of the parties’ marital property; specifically, the
first assignment challenges the division of wife’s retirement
accounts, and the second assignment challenges the allocation
of all of the marital debt to husband. With respect to the
first assignment, husband cites Kunze and Kunze, 337 Or
122, 92 P3d 100 (2004), and contends that the court erred
when it (1) failed to engage in an analysis with respect to the
presumption of equal contribution to the marital increase
in the accounts and whether it had been rebutted, and
(2) failed to order an equal division of the marital increase
in the accounts in the absence of countervailing equitable
considerations. With respect to the second assignment, husband
argues that he was entitled to be credited in some way
for half of the parties’ marital debt, which he “was paying
and intended to pay.”
In response to both assignments, wife contends
that, in order to make an award that was just and proper,
the trial court was not required first to engage in a mechanical
application of the presumption of equal contribution as
to each asset, followed by a consideration whether the presumption
had been rebutted. This is especially so, wife contends,
in light of the fact that wife never attempted to rebut
the presumption of equal contribution. She further argues
the trial court’s division of the parties’ assets and debts,
Cite as 269 Or App 312 (2015) 317
although not mathematically equal, was just and proper
under the circumstances.
Husband’s third assignment is that the trial court
erred when it denied his request for attorney fees without
explanation. Specifically, he argues that this case is
“squarely within the purview” of Baker and Baker, 173 Or
App 33, 35, 20 P3d 263 (2001), in which we held that a trial
court must “identify the relevant facts and legal criteria” in
ruling on a request for attorney fees. Thus, husband contends
that the trial court erred when it offered “no explanation
[for] its denial” of his request. Wife responds that husband
failed to preserve his appellate argument because he
did not submit an ORCP 68 statement asking the court to
state its findings and conclusions on the record and he did
not object to the court’s failure to do so. Accordingly, wife
contends that husband’s third assignment of error should
not be reviewed by this court.
We first address husband’s challenges to the division
of the parties’ assets and debts. We begin with husband’s
contention that the trial court erred when it awarded 90 percent
of wife’s retirement accounts to wife. ORS 107.105(1)(f)
governs property divisions. It directs courts to make “just
and proper” property divisions, and it establishes a rebuttable
presumption that spouses have contributed equally to
property acquired during a marriage. It provides:
“(1) Whenever the court renders a judgment of marital
annulment, dissolution or separation, the court may provide
in the judgment:
“(f) For the division or other disposition between the
parties of the real or personal property, or both, of either
or both of the parties as may be just and proper in all the
circumstances. * * * There is a rebuttable presumption that
both spouses have contributed equally to the acquisition
of property during the marriage, whether such property is
jointly or separately held.”
As noted, husband contends that the trial court’s uneven
division of wife’s retirement accounts was not “just and
proper,” because (1) the court failed to determine whether
wife had rebutted the presumption that he had contributed
equally to the marital increase in her retirement accounts,
318 Hostetler and Hostetler
and (2) no equitable considerations were present that would
have militated against an equal division.4
We reject husband’s argument to the extent that he
reads Kunze to require a rebuttal analysis—regardless of
whether a party has challenged the presumption of equal
contribution—prior to ordering an unequal division of a
marital asset. We also reject husband’s argument to the
extent that he contends that an unequal division of a marital
asset will be permitted only when one or more of the
particular considerations enumerated in Kunze are present.
As explained in the following discussion, neither rebuttal of
the statutory presumption nor the presence of any particular
equitable consideration is a mandatory prerequisite to
an unequal property division.
There are two categories of property subject to division
in a dissolution action. Loomis and Loomis, 247 Or App
127, 136, 268 P3d 700 (2011). The first category of property,
known as “marital property,” consists of “any property that
the parties possess at the time of the dissolution, regardless
of when the property was first acquired.” Id. The second
class of property is a “subset of marital property”; it consists
of property acquired during the marriage and is known as
“marital assets.” Id.
In Kunze, the Supreme Court outlined a series of
inquiries that courts are to engage in when dividing property
pursuant to ORS 107.105(1)(f). The first step is to determine
when the parties acquired the property at issue. Kunze,
337 Or at 133-34. When an asset was acquired prior to the
4 Husband objected to the trial court’s proposed 90/10 division of the maritalasset
portion of wife’s retirement account, “taking exception * * * because the
presumption is of equal contribution during the marriage.” The trial judge
responded, “I do presume there’s equal contribution. It’s been rebutted in my
mind * * * because [of] some of the choices that [the parties] made as they went
along * * *.” When asked to elaborate on the particular factors that amounted to
a rebuttal, the court cited the parties’ respective incomes, their joint decision
that husband would act as the primary caregiver to son, and the length of their
relationship.
On appeal, husband argues that the trial court’s rebuttal analysis was
improper because it “had little to do with the acquisition of the retirement
accounts * * * as opposed to its future impact.” (Emphasis added.) It is clear, however,
that the court did not dispute husband’s equal contribution to the acquisition
of the assets. Rather, the court’s reference to “rebuttal” related to the equal
division of the assets.
Cite as 269 Or App 312 (2015) 319
marriage of the parties, the court’s inquiry is limited to
“what is ‘just and proper in all the circumstances’ in distributing
that property.” Id. at 134 (quoting ORS 107.105(1)(f)).
If, however, a party establishes that an item of property
was acquired during the marriage—rendering it a “marital
asset”—then the court applies the statutory presumption of
equal contribution. Id. “The presumption directs the court
that, unless proven otherwise, the court must find that both
parties have contributed equally to the acquisition of marital
assets.” Id. When the presumption is not rebutted, the
“just and proper” division of marital assets, absent other
considerations, is an equal division between the parties. Id.5
A spouse seeking to rebut the presumption of equal
contribution “has the burden of proving by a preponderance
of the evidence that the other spouse’s efforts during the
marriage did not contribute equally to the acquisition of the
disputed marital asset.” Kunze, 337 Or at 134. If the presumption
of equal contribution is rebutted, then “the party
holding the separate asset is entitled to receive the property
in the division of marital assets unless other considerations
make it ‘just and proper in all the circumstances’ to distribute
the property otherwise.” Loomis, 247 Or App at 136 (citations
omitted; emphasis added).6
Thus, application of the statutory presumption of
equal contribution is not the final step of the analysis; a trial
5 Retirement accounts, even those in payout status, are treated as “property”
for purposes of property division in dissolution actions. Rushby and Rushby, 247
Or App 528, 533-34, 270 P3d 327 (2011), rev den, 352 Or 33 (2012); Colling and
Colling, 139 Or App 16, 22, 910 P2d 1165, rev den, 324 Or 78 (1996) (“[W]e hold
that in circumstances where it is necessary to achieve an equitable result, it is
permissible for the court to attribute value to a retirement account, even though
the person has retired.”). The portion of a pension or a retirement account that
accrued during the marriage is known as the “ ‘marital asset’ portion of [the]
pension.” Rushby, 247 Or App at 533 (quoting Stokes and Stokes, 234 Or App
566, 573, 228 P3d 701 (2010)). The marital-asset portion of the pension is subject
to the rebuttable presumption of equal contribution; thus, a spouse is generally
“entitled to one-half of that portion of a pension that was accumulated during the
marriage.” Stokes, 234 Or App at 573.
6 Some assets, such as personal injury settlements, are subject to specific
criteria in the trial court’s determination whether the presumption of equal contribution
has been overcome. See, e.g. Davis and Davis, 268 Or App 679, ___ P3d
___ (2015) (describing special consideration applicable to court’s determination
whether presumption of equal contribution to personal injury settlement has
been overcome).
320 Hostetler and Hostetler
court applies the presumption to “formulate[ ] a preliminary
division of marital assets.” English and English, 223 Or
App 196, 203, 194 P3d 887 (2008) (emphasis added). After
applying the presumption, the court “reviews the equity of
the property division in view of all of the circumstances of
the parties, regardless of whether the statutory presumption
of equal contribution has been rebutted.” Id. (emphasis
added). The question at that final step is “what division of
all the marital property—that is, both the marital assets
and any other property that the parties had brought into the
marriage—is ‘just and proper in all the circumstances.’ ”
Kunze, 337 Or at 135 (emphasis added).
As the Supreme Court has explained, although the
just-and-proper inquiry “necessarily includes consideration
of * * * the court’s determination under the presumption of
equal contribution, that inquiry also takes into account the
social and financial objectives of the dissolution, as well as
any other considerations that bear upon the question of what
division of the marital property is equitable.” Id. (emphasis
added); see also Fay and Fay, 251 Or App 430, 438, 283 P3d
945 (2012) (although whether property was acquired during
the marriage and the parties’ relative contributions to its
acquisition are “two significant considerations in the ‘just
and proper’ determination, * * * they are not the only relevant
factors”; “other considerations may bear on what is just
and proper[.]”).
The other “equitable factors” for consideration may
include, but are not limited to, “the preservation of assets;
the achievement of economic self-sufficiency for both spouses;
the particular needs of the parties and their children; and
* * * the extent to which a party has integrated a separately
acquired asset into the common financial affairs of
the marital partnership through commingling.” Kunze, 337
Or at 136. Those factors may, under appropriate circumstances,
weigh in favor of an unequal division of property,
even where the presumption of equal contribution has not
been rebutted. In Fuernsteiner-Perin and Perin, 211 Or App
23, 153 P3d 151, rev den, 343 Or 33 (2007), for example, we
concluded that it was just and proper to award certain real
property to the wife even though the statutory presumption
had not been rebutted. We reasoned that
Cite as 269 Or App 312 (2015) 321
“that asset would probably not currently exist but for her
efforts. Without the * * * property, she will have no place to
live, and awarding it to her will assist her in acquiring economic
self-sufficiency by allowing her to remain in Hawaii
and to continue her career as an artist, her only current
source of income.”
Fuernsteiner-Perin, 211 Or App at 32; see also Van Horn and
Van Horn, 185 Or App 88, 93, 57 P3d 921 (2002), rev den,
335 Or 267 (2003) (equitable considerations may also tip the
balance in the other direction; that is, they “may support an
equal division of property even though the presumption of
equal contribution has been overcome”).
The overall statutory directive of ORS 107.105 is
to “fashion a ‘just and proper’ division” of all marital property.
Kunze, 337 Or at 133. The presumption of equal contribution
is a preliminary step—applied to a single item
of property—that results in a preliminary division of that
particular asset.7 English, 223 Or App at 203. When the
presumption of equal contribution is not rebutted (either
because no one has attempted to rebut it or an attempt
has been unsuccessful), it weighs in favor of, but does not
compel, an equal division of the asset.8 Therefore, we reject
husband’s contention that, when the presumption is not
rebutted, a court is precluded from making an unequal
division of the marital asset in order to attain an overall
division of marital property that is “just and proper in all
the circumstances.” ORS 107.105(1)(f).
Whether a trial court’s property division is “just
and proper” is reviewed for abuse of discretion. Gay and
Gay, 250 Or App 31, 36, 279 P3d 265 (2012). Thus, “we will
not disturb the trial court’s ruling if, given the facts found
7 Husband argues that he knows of “no case where this court, under any
circumstances, has ever approved a 90/10 split of marital assets.” We think that
husband mischaracterizes the issue. The question is not whether a 90/10 split of
a marital asset—here, the marital-asset portion of wife’s retirement accounts—is
just and proper. The question, rather, is whether the trial court abused its discretion
under ORS 107.105(1)(f) with respect to its overall division of the marital
property—including the parties’ separate property.
8 In terms of practical effect, we see no basis for distinguishing between the
unsuccessful and the unattempted rebuttal. Where, as here, neither party seeks
to rebut the presumption of equal contribution, the practical effect is the same as
if wife had sought to rebut the presumption and failed in that attempt.
322 Hostetler and Hostetler
by the court, it chose one among a variety of legally correct
outcomes.” Id. A just and proper division of the parties’
property requires consideration of all relevant equitable factors;
courts are not limited to the four factors enumerated in
Kunze. As the Supreme Court noted in Kunze, although the
just-and-proper analysis
“necessarily includes consideration of the statutory factors,
including the court’s determination under the presumption
of equal contribution, that inquiry also takes into account
the social and financial objectives of the dissolution, as well
as any other considerations that bear upon the question of
what division of the marital property is equitable. Although
they will vary according to the individual circumstances of
the parties, this court has identified some of the equitable
considerations under ORS 107.105(1)(f) to include the
preservation of assets; the achievement of economic selfsufficiency
for both spouses; the particular needs of the
parties and their children; and, as discussed in more detail
below, the extent to which a party has integrated a separately
acquired asset into the common financial affairs of
the marital partnership through commingling.”
337 Or at 135-36 (citations omitted; emphasis added). Thus,
Kunze does not contain an exhaustive list of the equitable
factors for consideration, and we reject husband’s argument
to the extent that it suggests otherwise.
Applying the Kunze analytical template here, we
agree with husband that wife did not rebut the presumption
that he equally contributed to the marital portion of her
retirement accounts; she did not attempt to rebut it. But, for
the reasons explained above, the fact that wife did not rebut
the presumption as to that asset did not preclude the trial
court from dividing that asset unequally if that is what the
trial court determined was necessary in order to make a
just and proper division of the marital property. And that is
exactly what the trial court did. We note that while husband
is correct that his PERS account was not a marital asset—
and was therefore not subject to the presumption of equal
contribution—it was nonetheless “marital property” subject
to the dispositional power of the trial court. Hanscam and
Hanscam, 247 Or App 207, 216, 268 P3d 715 (2011) (“[Assets
Cite as 269 Or App 312 (2015) 323
acquired before marriage] are nonetheless considered marital
property; as such, they are also subject to a division
that is ‘just and proper in all the circumstances.’ ”); see also
Loomis, 247 Or App at 136 (“[I]f the property is not a marital
asset because it was separately acquired, then the party
holding the separate asset is entitled to receive the property
* * * unless other considerations make it ‘just and proper in
all the circumstances’ to distribute the property otherwise.”
(citations omitted)). Accordingly, husband’s separate PERS
account was an appropriate equitable consideration for the
trial court in making a just and proper distribution of the
marital property. See Edwards and Edwards, 209 Or App
555, 557-58, 149 P3d 196 (2006) (assets acquired before the
marriage are subject to the court’s “just and proper” division
of marital property). Here, the court determined that it
would not disturb husband’s income stream from his PERS
account, but it took that asset into consideration in determining
that husband would be awarded only 10 percent of
wife’s PERS accounts. We conclude that the trial court did
not abuse its discretion in so concluding.
With respect to the division of marital debts, husband
contends that the trial court erred in failing to offer
an explanation for why it chose to allocate all of the marital
debt to husband, when wife offered no evidence to show that
the debts were not reasonably incurred for family expenses.
Pursuant to the trial court’s authority to “determin[e] a just
and proper division of the parties’ property, ‘[it] may divide
the debts that the parties incurred during their marriage.’ ”
Christensen and Christensen, 253 Or App 634, 639, 292 P3d
568 (2012) (quoting Shlitter and Shlitter, 188 Or App 277,
283, 71 P3d 154 (2003)). Although the presumption of equal
contribution applies to assets, not debts, we have held that
where a debt was incurred to pay family expenses, “equal
division of the debt is generally appropriate.” Fay, 251 Or
App at 438. Again, however, with marital debts as with marital
property, “the determination of what is just and proper
in all the circumstances is a matter of discretion for the trial
court.” Id.
Here, the trial court determined that, because of
the disparity in the parties’ resources (including husband’s
much larger PERS pension and the fact that husband
324 Hostetler and Hostetler
had been awarded the family home free of any interest by
wife), it was just and proper to assign all of the marital
debt to husband. Again, as previously noted, the trial court
explained that it did not intend to make a division based
on an itemized list of all of the parties’ assets and liabilities;
rather, it intended to make a property division that
would disentangle the parties, that was equitable, and that
allowed them to have a standard of living that approached
the marital standard of living. Based on those considerations,
the trial court concluded that an unequal division
of the marital debts was “just and proper in all the circumstances.”
ORS 107.105(1)(f). We cannot conclude on this
record that the trial court abused its discretion in making
that division.
Finally, we consider husband’s contention that
the trial court erred when it refused to award him attorney
fees. Wife responds that any error has not been preserved
because, after the court’s denial of attorney fees for
both parties, husband “did not thereafter raise or revisit
the issue, nor did he submit an ORCP 68 statement.” We
agree with wife and reject husband’s third assignment of
error.
On appeal, husband challenges the denial of attorney
fees on the sole ground that the trial court offered no
explanation for its ruling. As mentioned, at trial, the court
simply stated, “I’m not going to award attorney’s fees to
either one, you can be responsible for your own fees.” In the
dissolution judgment, the court ordered that “[b]oth parties
[be] responsible for their own attorney fees and costs.”9 No
findings were included in the judgment. Husband argues
that, under McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84,
95, 957 P2d 1200, modified on recons, 327 Or 185, 957 P2d
9 In this case, both husband and wife sought attorney fees. Husband reiterated
his request for fees in his trial statement, emphasizing wife’s perceived lack
of cooperation with the discovery process. He stated:
“Husband requests that the court award him reasonable attorney fees. In
lieu of an award, the court may make a different division of assets and liabilities,
favoring Husband. Through her lack of cooperation and noncompliance
with discovery and other issues during the pendency of the case, Husband’s
expenses were unnecessarily increased.”
Wife did not elaborate on her request.
Cite as 269 Or App 312 (2015) 325
1200 (1998),10 and Baker and Baker, 173 Or App 33, 35, 20
P3d 263 (2001), the trial court abused its discretion when
it failed to identify the “relevant facts and legal criteria”
underlying its denial of fees.
Husband is correct that, under McCarthy, “where
a party challenges the substance of an attorney fee award,
findings may be necessary for meaningful appellate review.”
Reeves v. Reeves, 203 Or App 80, 91 n 4, 125 P3d 755 (2005),
rev den, 340 Or 308 (2006) (emphasis added); see also Baker,
173 Or App at 35-36 (extending the McCarthy rule to discretionary
attorney-fee awards under ORS 107.135). Here, however,
husband makes no substantive challenge to the denial
of fees; rather, he argues that we should remand based solely
on the absence of findings to support the ruling. As the court
noted in McCarthy, however, “[s]tanding alone, the absence of
explanatory findings to support an award or denial of attorney
fees is not a ground for reversal.” McCarthy, 327 Or at 189.
On the contrary, “[a] trial court is required to make
findings on its attorney fee award only when a party makes
a written request for findings in accordance with ORCP 68
C(4)(e).”11 Reeves, 203 Or App at 91 (emphasis added). In
10 In McCarthy, the Supreme Court held that
“Efficient and meaningful appellate review for abuse of discretion cannot
occur * * * [where] we can only speculate about the possible relevant facts
and legal criteria relied on for the court’s award of attorney fees. Adequate
findings about those matters need not be complex or lengthy. Rather, they
must describe the relevant facts and legal criteria for the court’s decision to
award or deny attorney fees in any terms that are sufficiently clear to permit
meaningful appellate review.”
McCarthy, 327 Or at 190. A trial court fulfills its obligation under McCarthy by
“ ‘including in its order a brief description or citation to the factor or factors on
which it relies’ or by clearly indicating the basis of its decision in the record.”
Nieth and Nieth, 199 Or App 330, 339, 111 P3d 746 (2005) (quoting McCarthy,
327 Or at 188).
11 Now numbered ORCP 68 C(4)(g), that section provides:
“On the request of a party, the court shall make special findings of fact and
state its conclusions of law on the record regarding the issues material to the
award or denial of attorney fees. A party must make a request pursuant to
this paragraph by including a request for findings and conclusions in the title
of the statement of attorney fees or costs and disbursements, objection, or
response filed pursuant to paragraph (a), (b), or (c) of this subsection. In the
absence of a request under this paragraph, the court may make either general
or special findings of fact and may state its conclusions of law regarding
attorney fees.”
326 Hostetler and Hostetler
Reeves, a breach-of-contract case, we rejected the defendant’s
challenge to an attorney-fee award based on lack of findings
where he had “made only an oral request for findings at a
hearing on objections to the court’s attorney fee award,” and
“ma[de] no claim that he complied with ORCP 68 C(4)(e).”
Id.
Here, like the defendant in Reeves, husband “does
not make any argument about why the [ruling] was unreasonable;
he argues only that we should reverse * * * because
of the absence of findings.” Id. Thus, husband’s challenge
falls outside the scope of McCarthy and Baker, and the
absence of findings to support the court’s denial of fees—
standing alone—does not justify a reversal. Husband was
obligated to make a written request for findings pursuant
to ORCP 68 C(4)(g) in order to preserve this issue for our
review. Because he made no such request, Reeves controls,
and we reject husband’s final assignment of error.

Outcome: Affirmed.

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