Background
Wife appealed a general judgment of dissolution entered following a trial at which she did not appear. Husband was awarded attorney fees as part of the final judgment. Wife raised two assignments of error: first, that the trial court erred in proceeding with trial in her absence; second, that the trial court erred in awarding attorney fees without complying with Oregon Rules of Civil Procedure (ORCP) 68. Since wife failed to appear at trial, both errors were unpreserved, but she argued they constituted plain error subject to appellate correction.
The trial court conducted the dissolution trial without wife’s appearance and awarded attorney fees to husband without following the ORCP 68 process. Wife had appeared in the case throughout its pendency but failed to appear on the trial date. She provided the court with minimal information regarding her inability to attend and did not request a continuance.
The Court’s Holding
The Oregon Court of Appeals affirmed the trial court’s decision to proceed with trial in wife’s absence, finding no plain error. The court noted the case history, wife’s failure to request a continuance, and her minimal explanation for her absence supported proceeding to trial.
However, the court held that the trial court committed plain error in awarding attorney fees to husband without complying with the mandatory ORCP 68(c)(4) process. The court reaffirmed longstanding precedent holding that trial courts must comply with ORCP 68 when awarding attorney fees in domestic relations cases, and that this procedure is “a right of the parties, not just a convenience for the court.” The critical distinction is that ORCP 68 applies when a party has appeared in the case but fails to appear at trial—not merely when a party is in default by virtue of having their appearance stricken as a sanction. The court rejected husband’s reliance on Uhde and Uhde as inapplicable to this fact pattern.
Consequently, the court remanded the case for entry of an amended judgment eliminating the attorney fees award in Paragraphs 7.1.4 and 14, while leaving open husband’s ability to petition for attorney fees through the proper ORCP 68 process on remand. The remainder of the dissolution judgment was affirmed.
Key Takeaways
- ORCP 68 is a mandatory procedural right that trial courts must follow when awarding attorney fees in family law cases, even when a party fails to appear at trial (so long as they previously appeared in the case).
- A party’s failure to appear at trial does not eliminate the trial court’s obligation to provide notice, supporting documentation, and an opportunity to contest attorney fee requests.
- A trial court’s non-compliance with ORCP 68 constitutes plain error subject to correction on appeal, and such error deprives a party of an important procedural right.
- A defaulting party (one whose appearance has been stricken) is treated differently from a party who has appeared but failed to show up for trial.
Why It Matters
This decision reinforces that procedural protections in family law cases are substantive rights, not mere formalities. Attorney fees can represent a significant financial liability in dissolution cases, and ORCP 68 exists to ensure that the party against whom fees are sought receives fair notice and an opportunity to respond. The court’s ruling prevents trial courts from circumventing these protections simply because a party did not appear at trial, ensuring meaningful access to due process in family law proceedings.
The decision also clarifies that Uhde and Uhde‘s exception for defaulting parties is narrow and does not extend to parties who have appeared in the case. This distinction matters practically: parties who maintain active involvement in a case cannot be deprived of ORCP 68 protections by merely being absent on a single trial date, incentivizing compliance with procedural rules while preserving fairness.
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