Liberty Ann Jones v. Scott V. Mears

Husband appeals a supplemental judgment entered

in February 2015 that modified his child support obligation.

On appeal, husband argues that the trial court erred

in imputing to him potential income of $80,000. Because

we conclude that husband invited that purported error, we

affirm.

Husband and wife have one child. In 2013, husband

moved to modify his child support obligation, arguing that

there had been a substantial change in his economic circumstances

that permitted the court to recalculate the parties’

child support obligations. Following a hearing on that

motion, the trial court issued a letter opinion in which it

set husband’s child support obligation by imputing to him

potential income of $80,000 per year. In May 2014, the

trial court entered a supplemental judgment (the May 2014

judgment), incorporating the findings from its letter opinion.

1 Thereafter, husband moved to set aside the May 2014

judgment. In January 2015, the trial court held a hearing

on husband’s objections to the May 2014 judgment. At that

hearing, the trial court stated:

“THE COURT: As I look through the original pleadings,

the issue that was raised was that notice wasn’t given.

* * *

“In the pleadings that were just proposed to me, the

memorandum, I am told that [husband] does not object to

the $80,000 income imputed to him in the current order;

neither does he object to the present child support order, is

that correct?

“[HUSBAND’S COUNSEL]: Yes.”

The hearing continued and the parties discussed other

issues, including whether husband acted in bad faith by failing

to fund child’s trust fund. At the end of that hearing, the

trial court again reaffirmed its understanding, “In today’s

pleadings, [husband] no longer contests the $80,000 income,

1 Husband did not appeal the May 2014 judgment, and it was vacated in April

2015 following entry of the February 2015 judgment that is the subject of this

appeal.

Cite as 285 Or App 799 (2017) 801

nor does he contest the present child support.” At no point

did husband object to that understanding.

Following the hearing, in February 2015, the trial

court entered a supplemental judgment (the February 2015

judgment), again incorporating its findings from its letter

opinion in which it imputed to husband potential income of

$80,000 per year. Additionally, the judgment stated, “At the

January 20, 2015, hearing [husband], through his attorney,

withdrew his objection to [wife’s] proposed form of [the May

2014] Supplemental Judgment that related to his presumed

income.”

Husband appealed the February 2015 judgment.

While his appeal was pending, husband filed a motion for

relief from that judgment pursuant to ORCP 71 B(1)2 that,

among other things, challenged the trial court’s finding that

he had acted in bad faith. As required by ORAP 8.25(2),3

husband notified us of his pending motion in the trial court

and requested that we hold his appeal in abeyance. We

granted husband’s motion to hold his appeal of the February

2015 judgment in abeyance pending the disposition of his

ORCP 71 B motion in the trial court.

In November 2015, husband notified us that the trial

court had entered a third supplemental judgment resolving

his ORCP 71 B motion (the November 2015 judgment); husband

attached the November 2015 judgment to his notice.

The November 2015 judgment modified the February 2015

judgment by deleting the trial court’s finding that he had

acted in bad faith but did not otherwise modify or vacate

the February 2015 judgment. We issued the parties a notice,

stating, in part, “If you plan to amend the current appeal

to include the new [November 2015 judgment], an amended

2 ORCP 71 B(1)(a) provides, in pertinent part, that, “[o]n motion and upon

such terms as are just, the court may relieve a party * * * from a judgment for,”

among other reasons, “mistake, inadvertence, surprise, or excusable neglect[.]”

3 ORAP 8.25(2) provides, in part:

“When a party has filed a motion for relief from judgment under * * *

ORCP 71 B while the judgment is on appeal, the appellate court will decide

whether to hold the appeal in abeyance pending disposition of the motion or

to allow the appeal to go forward. Any party to the appeal may move the court

to hold the appeal in abeyance or to allow the appeal to go forward.”

802 Jones v. Mears

notice of appeal must be filed.”4 In response, husband submitted

“notice of his intent to proceed with the appeal” but

did not otherwise amend his notice of appeal to include the

record of the proceedings that resulted in the November

2015 judgment.

As noted, on appeal of the February 2015 judgment,

husband contends that the trial court erred in imputing to

him potential income of $80,000 per year. We conclude that

husband invited the purported error. “Under the invited

error doctrine, ‘a party who was actively instrumental in

bringing about an alleged error cannot be heard to complain,

and the case ought not to be reversed because of it.’ ”

Miller v. Columbia County, 282 Or App 348, 353 n 5, 385

P3d 1214 (2016), rev den, 361 Or 238 (2017) (quoting State

v. Kammeyer, 226 Or App 210, 214, 203 P3d 274, rev den,

346 Or 590 (2009)). The invited error doctrine “is generally

applicable when a party has invited the trial court to rule

in a particular way under circumstances that suggest that

the party will be bound by the ruling or will not later seek

a reversal on the basis of that ruling.” Kammeyer, 226 Or

App at 214. Ultimately, “[t]he goal of the rule is to ensure

that parties who make intentional or strategic trial choices

do not later ‘blame the court’ if those choices prove to be

unwise.” Id. (quoting Crawford v. Jackson, 252 Or 552, 555,

451 P2d 115 (1969)).

In this case, husband was instrumental in causing

the error he now challenges on appeal. At the January 2015

hearing on husband’s objections to the May 2014 judgment,

husband withdrew his objection to the trial court’s imputation

of potential income of $80,000. The trial court twice

reaffirmed that understanding with husband. Further, the

February 2015 judgment included an express acknowledgment

that husband withdrew his objection relating to the

trial court’s imputation of potential income. Thus, the record

before us demonstrates that husband withdrew his objection

to the trial court’s imputation of potential income of $80,000

and did not otherwise challenge that determination; having

4 ORAP 8.25(3) provides, in part, that “[a] party wishing to appeal an order

deciding a motion filed under ORCP 71 A or ORCP 71 B during the pendency of

an appeal shall file a notice of appeal * * *.”

Cite as 285 Or App 799 (2017) 803

done so, husband cannot now fault the trial court for setting

his child support obligation by imputing to him potential

income of $80,000. Because husband invited the error for

which he now complains, we decline to consider the merits

of his assignment of error.

Affirmed.