No. 376 June 5, 2024 69

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

In the Matter of the Marriage of

James Daniel BOYD III,

Petitioner-Respondent,

and

Rosemary Ellen BOYD,

Respondent-Appellant.

Clackamas County Circuit Court

DR12030206; A176229

Thomas J. Rastetter, Judge.

Argued and submitted April 20, 2023.

Erica R. Tatoian argued the cause for appellant. Also on 

the opening brief was Harrang Long Gary Rudnick P. C. 

Also on the reply brief was Harrang Long P. C.

Andrew Walker Newsom argued the cause and filed the 

brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and 

Jacquot, Judge.

JACQUOT, J.

Corrected supplemental judgment of attorney fees 

reversed and remanded for entry of a supplemental judgment excluding paragraph 7; otherwise affirmed.
70 Boyd and Boyd
Cite as 333 Or App 69 (2024) 71

JACQUOT, J.

Mother appeals from a corrected supplemental 

judgment awarding father $75,000 in attorney fees following 

a proceeding to modify custody, parenting time, and child 

support. Mother raises five assignments of error, including 

a challenge to the trial court’s decision to categorize the 

attorney fee judgment “as being in the nature of child support.” For the reasons explained below, we conclude that the 

trial court erred by categorizing the attorney fee award in 

that way. However, we reject mother’s other assignments of 

error. We therefore reverse the corrected supplemental judgment and remand for entry of a supplemental judgment that 

excludes the paragraph categorizing the attorney fee judgment as being in the nature of child support, but we otherwise affirm.

Jurisdiction. As an initial matter, we address 

whether we have jurisdiction. ORS 19.270(2)(a) provides 

that timely service of the notice of appeal on the parties is 

jurisdictional. ORS 19.500 states that documents shall be 

served in the manner provided by ORCP 9 B, which in turn 

provides that when a party is represented, the service shall 

be made on the party’s attorney. Compliance with ORCP 9 

B is a prerequisite for appellate court jurisdiction. See J. 

A. H. v. Heikkila, 355 Or 753, 756-58, 333 P3d 275 (2014) 

(reading ORS 19.270, ORS 19.500, and ORCP 9 B together 

to determine service requirements for purposes of conferring jurisdiction).

Here, the trial court entered the corrected supplemental judgment on May 3, 2021. Father’s former attorney 

filed a notice of withdrawal on May 28, 2021, and he served 

it on mother by first class mail. Mother did not receive it 

until June 11. In the meantime, on June 2, mother filed her 

notice of appeal, and she mailed it to father’s former attorney, but she did not mail it to father directly. The Appellate 

Commissioner issued an order to show cause why the case 

should not be dismissed for failure to timely serve the notice 

of appeal on father. After considering mother’s declaration in response to the order to show cause, the Appellate 

Commissioner determined that we have jurisdiction, reasoning that mother did not receive the notice of withdrawal 
72 Boyd and Boyd

until after she had filed and served the notice of appeal. The 

commissioner’s order was without prejudice to father raising 

the jurisdictional question in his briefing.

Having considered the parties’ arguments in their 

briefing, we agree with the Appellate Commissioner that 

we have jurisdiction. ORS 9.390 provides that when the 

attorney-client relationship is terminated, written notice of 

the termination “shall be given to the adverse party. Until 

the notice is given, the adverse party is bound to recognize 

the former attorney.” Although neither party analyzes in any 

detail what it means for notice to be “given,” ORS 9.390 indicates that the adverse party must continue to act in a certain way until that occurs. We understand that term to refer 

to the time when notice is received by the adverse party. See 

Banerjee and Fiorillo, 310 Or App 446, 451-52, 485 P3d 920, 

rev den, 368 Or 787 (2021) (focusing on when the adverse 

party received notice in discussing ORS 9.390). To conclude 

otherwise would promote gamesmanship whereby the notice 

of withdrawal could be utilized to deprive us of jurisdiction 

to hear an appeal. Because mother did not receive the notice 

of withdrawal until June 11, we conclude that she timely 

served her notice of appeal on June 2 by mailing it to father’s 

former attorney. Therefore, we have jurisdiction. We turn to 

mother’s assignments of error.

Attorney Fees and Child Support. In her second 

assignment of error, mother argues that the trial court 

erred by categorizing the attorney fee judgment as “being 

in the nature of child support.” Father requested that language in the proposed supplemental judgment to make it 

more difficult for mother to obtain a discharge of her debt for 

attorney fees in any future federal bankruptcy proceeding. 

After hearing argument from the parties, the trial court 

struck some language from the proposed judgment, but kept 

paragraph 7, the paragraph that categorizes the attorney 

fee judgment “as being in the nature of child support.”1

1 Technically, the paragraph at issue is paragraph 6, because the trial court 

removed the preceding paragraph, which appears in the corrected supplemental 

judgment as a strikethrough. For the sake of clarity, we emphasize that when we 

refer to paragraph 7, we mean the one that categorizes the attorney fee judgment 

as being in the nature of child support.
Cite as 333 Or App 69 (2024) 73

Preliminarily, we reject father’s suggestion that 

mother failed to preserve her argument in sufficient detail. 

On the merits, we conclude that the trial court erred when it 

categorized the attorney fee judgment as being in the nature 

of child support. We are not aware of any Oregon law authorizing the trial court to have done so, and the parties cite none. 

In Jacobs and Jacobs, 219 Or App 144, 147 n 2, 182 P3d 244 

(2008), we observed in dicta that most states regard attorney 

fees “awarded to a spouse as akin to spousal support.” But 

that case referred to spousal support, not child support.

An award of child support is intended to benefit the 

child. See, e.g., ORS 25.275(2)(a) (“The child is entitled to 

benefit from the income of both parents to the same extent 

that the child would have benefited had the family unit 

remained intact or if there had been an intact family unit 

consisting of both parents and the child.”). By contrast, a 

discretionary award of attorney fees, such as the one at issue 

here, is for the benefit of the other party. See ORS 107.135(8) 

(“[T]he court may assess against either party a reasonable 

attorney fee and costs for the benefit of the other party.”); 

see also ORS 107.445 (“the court may render a judgment 

awarding to a party, or directly to the party’s attorney, a 

sum of money” determined to be a reasonable attorney fee). 

Although in some broad or colloquial sense, anything that 

benefits a parent may also be said to benefit the parent’s 

minor children, based on the distinct statutory schemes and 

criteria that apply to awards of reasonable attorney fees 

and child support, the trial court erred when it included 

language in the attorney fee judgment suggesting an equivalence between the two.

The Trial Court’s Reliance on ORS 20.075(1)(f). In 

her third assignment of error, mother takes issue with the 

trial court’s determination that ORS 20.075(1)(f) supported 

awarding attorney fees to father. Mother argues that the 

trial court failed to make express findings that she was 

objectively unreasonable in pursuing settlement and that, 

in any event, there was no evidence to support that conclusion. Assuming without deciding that mother preserved 

those arguments for appellate review, we are not persuaded 

that the trial court erred.
74 Boyd and Boyd

ORS 20.075(1)(f), which concerns “[t]he objective 

reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute,” is one of several factors that the trial court relied upon in determining 

whether to award attorney fees to father. In support of its 

reliance on that factor, the trial court incorporated findings 

from the affidavit of father’s attorney. Having reviewed that 

affidavit and the attached exhibits, as well as the evidence 

and arguments considered at the hearing on attorney fees, 

we conclude that the trial court did not err when it found 

that mother did not diligently or reasonably pursue settlement. For example, there were numerous delays in obtaining discovery from mother. Although we decline to describe 

the protracted nature of the proceedings below in detail, 

having reviewed the entire record, we reject mother’s third 

assignment of error.

Mother’s Remaining Assignments of Error. In her 

first assignment of error, mother argues that the trial court 

erred in awarding attorney fees because father failed to 

comply with ORCP 68 C(2).2

 In her fourth and fifth assignments, mother argues that the trial court erred by failing 

to consider and apply the mandatory factors for assessing 

the reasonableness of attorney fees under ORS 20.075(2), 

and she contends that the trial court’s decision regarding 

reasonable attorney fees was not supported by substantial, 

competent evidence.

Mother acknowledges that her first, fourth, and fifth 

assignments of error were not preserved, and she requests 

plain-error review. An error is “plain” when it is an error of 

law, the legal point is obvious and not reasonably in dispute, 

and the error is apparent on the record without our having 

to choose among competing inferences. State v. Vanornum, 

354 Or 614, 629, 317 P3d 889 (2013). It is a matter of discretion whether we will correct a plain error. State v. Gornick, 

340 Or 160, 166, 130 P3d 780 (2006).

2 ORCP 68 C(2)(a) provides that “[a] party seeking attorney fees shall allege 

the facts, statute, or rule that provides a basis for the award of fees in a pleading 

filed by that party.” However, “[i]f 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).
Cite as 333 Or App 69 (2024) 75

Here, the claimed errors are not plain. The record 

indicates that father complied with ORCP 68 C(2)(b) by 

filing a motion for a new court hearing in November 2018 

that included a request for attorney fees. It is not obvious 

or apparent on the face of the record that the trial court 

did not consider the ORS 20.075(2) factors when determining the amount of reasonable attorney fees. It is also not 

obvious that the affidavit of father’s attorney, as well as the 

supporting exhibits, did not provide substantial, competent 

evidence to support the trial court’s decision regarding the 

amount of attorney fees that was reasonable. We therefore 

reject mother’s first, fourth, and fifth assignments of error.

Accordingly, we reverse the corrected supplemental 

judgment with instructions to remove paragraph 7, the paragraph that categorizes the attorney fee judgment as being in 

the nature of child support, but we otherwise affirm.3

Corrected supplemental judgment of attorney fees 

reversed and remanded for entry of a supplemental judgment excluding paragraph 7; otherwise affirmed.

3 We offer no opinion on whether mother’s debt for attorney fees to her 

ex-spouse is dischargeable in a federal bankruptcy proceeding.