29
Submitted February 3, vacated and remanded May 17, 2023
Myllisa WRIGHT,
Petitioner-Appellant,
v.
James LUTZI, Jr.,
Respondent-Respondent.
Linn County Circuit Court
16DR03074; A176985
530 P3d 517
Mother appeals a 2021 judgment modifying the parenting time and child
support provisions of a 2017 judgment, arguing that the modification judgment
does not accurately reflect the trial court’s ruling as to the number of overnights
that the child is to spend with each parent. Held: The modification judgment contains an internal inconsistency as to the number of overnights that the child is
to spend with each parent. When a judgment contains an internal inconsistency
or otherwise is ambiguous, an appellate court may look to the trial court’s oral
statements to resolve the ambiguity. In this case, however, the inconsistency in
the judgment stems from two inconsistent positions that father took during trial,
both of which were included in the judgment, such that the Court of Appeals
could not discern from the record which intention would have prevailed had the
trial court recognized the inconsistency when it prepared the judgment. Under
the circumstances, remand was necessary for the trial court to resolve the inconsistency itself.
Vacated and remanded.
Brendan J. Kane, Judge.
Myllisa Wright filed the brief pro se.
No appearance by respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Vacated and remanded.
30 Wright v. Lutzi
AOYAGI, P. J.
Mother appeals a 2021 judgment modifying the parenting time and child support provisions of a 2017 judgment.
Appearing pro se, mother argues that the modification judgment does not accurately reflect the trial court’s ruling as
to the number of overnights that the child is to spend with
each parent. Father does not appear on appeal. Upon review
of the record, we conclude that there is an internal inconsistency in the modification judgment as to the number of overnights that the child is to spend with each parent, which
appears to be the result of the trial court adopting father’s
proposed parenting-time plan, which itself contained an
internal inconsistency. Under the circumstances, we vacate
and remand.
Mother and father have one joint child, J, who was
born in 2011. In January 2017, the trial court entered a
judgment regarding custody, parenting time, and child support, based on an agreement of the parties. The parties were
awarded joint legal custody of J. Regarding parenting time,
father’s home was designated as J’s primary residence, and
mother was awarded parenting time three times per month
from “Thursday night through and including Sunday night,”
which was “to commence at 7:00 p.m. Thursdays and end
Monday mornings” when mother dropped off J at school or
at 9:00 a.m. on nonschool Mondays.
In 2018, father fell on hard times, and the parties
agreed that J should live primarily with mother, at least for
a time. In 2021, mother moved to modify the 2017 judgment
to reflect J’s actual living arrangements. At that time, J was
living primarily with mother, and father had parenting time
every other weekend.
The modification trial took place on August 30,
2021, with both parties appearing pro se. Mother argued
that the court should modify the judgment to formalize the
status quo, including giving father parenting time with J
two weekends per month. Father agreed that J should continue to spend more time with mother than him (as had
been the case since 2018) but requested that he be given
more than two weekends per month. Father stated that he
would like to “switch it around” and make it “the opposite”
Cite as 326 Or App 29 (2023) 31
of how it was in the 2017 judgment—which he described
(inaccurately) as giving him “four days a week” and mother
“three days a week”1—such that J would spend four days
a week with mother and three days a week with him.
Father suggested that he could pick up J “from school on
Thursday after school and take her to school Friday, have
her for the weekend, bring her to school on Monday, and
then Mom pick her up from school on Monday [afternoon].”
A few minutes later, father reiterated that he really wanted
to have J “three days a week,” as that would be great for
him and would result in J having “four days a week” with
mother, which was “more time” with mother like mother
wanted.
The court ruled from the bench. It concluded that
mother had proved a change of circumstances so as to allow
a modification. It changed legal custody to father, after analyzing the statutory factors related to custody. The court then
stated that mother’s home “will be the primary residence”
for J, explaining, “That’s the residence that [J]’s known for
the last three years. The court’s not going to change that.”
As for parenting time, the court stated that “the ideal provision is usually a 50/50 split,” but that it was “not going
to order that” because “[father] didn’t even request that.
[Father] requested three days a week.” Father interjected
that he would also like “week on/week off during the summer.” The court then stated, “Week on/week off during the
summer, and so the court is going to adopt that proposed
parenting time schedule as in the best interest of [J] to have
maximum time with both parents ….”
The court drafted the judgment itself. The judgment, titled “Supplemental Judgment Modifying a Domestic
Relations Judgment,” was entered the same day. In the
“Custody and Parenting Time” section of the judgment, the
court handwrote:
“Respondent to pick up [J] at Lebanon Police Station at
5:00 p.m. every Thursday, and return child to either school
1
As previously described, the 2017 judgment did not give mother “three days
a week.” It gave her four overnights at a time (running from Thursday evening to
Monday morning) three times a month. That averages to a little less than three
overnights per week, but only because mother had parenting time in three designated weeks of each month, not every week.
32 Wright v. Lutzi
or mother at Lebanon P.D. in Monday a.m. Summer: 1 week
with Respondent next with Petitioner; alternate winter
breaks and spring breaks and holidays according to Linn
County Model Parenting Plan, attached.”
The court also terminated mother’s child support obligation
and ordered father to pay $100 per month as child support.
Several exhibits were attached to and incorporated into the
judgment, including Exhibit 3, which is a “Child Support
Worksheet” and related “Parenting Time Worksheet” showing exactly how child support was calculated. Both the
Child Support Worksheet (page 3) and the Parenting Time
Worksheet list mother as having 202 overnights and father
as having 163 overnights per year, which is consistent with
J being with mother “four days a week” and with father
“three days a week.”
Later the same day, August 30, mother filed a letter with the court, stating that she believed that the “parenting plan was written incorrectly.” She made several
points, including, as relevant here, that it had been “agreed”
that J would be with mother “more than” father but that
“the paperwork” showed father having J from Thursday to
Monday, which would mean that J was with father more
than mother. Father did not respond, and, per a notation on
the docket, “no action” was taken on mother’s letter.
Mother appeals the modification judgment. In her
sole assignment of error, she argues that the parenting-time
provision is inconsistent with the trial court’s oral ruling
and with other aspects of the judgment. The court clearly
stated in its oral ruling that it intended for mother’s home
to be J’s primary residence and for J to be with father less
than half the time, specifically three days per week in the
school year and alternating weeks in summer, as father had
requested. And, in the judgment, the court expressly provided that mother’s home is J’s primary residence and calculated child support based on mother having 202 overnights
and father having 163 overnights. Yet, the court ordered a
specific parenting-time schedule that actually gave father
four overnights and mother three overnights per week in the
school year, which, with alternating summer weeks and holidays, works out to father having 202 overnights and mother
Cite as 326 Or App 29 (2023) 33
having 163 overnights—seemingly the exact opposite of
what the court intended.2
“Generally, when a written judgment and oral ruling conflict, the trial court’s decision is governed by the
signed order, regardless of the evidence of the judge’s contrary intent.” State v. Rood, 129 Or App 422, 425-26,
879
P2d 886 (1994). That is at least in part because “[a] judge
may change his mind concerning the proper disposition
between the time of a hearing and his final action which
takes place when he signs the order disposing of the matter.” State v. Swain/Goldsmith,
267 Or 527, 530,
517 P2d 684
(1974). Thus, even if a judgment conflicts with the oral ruling, that is typically not a basis for reversal on appeal, if the
judgment is unambiguous.
If a judgment is ambiguous, however, we may look
to the court’s oral statements to resolve the ambiguity. State
v. Sullivan, 29 Or App 55, 58,
562 P2d 560 (1977) (looking to
the court’s oral comments to resolve an ambiguity in its written order as to a particular credibility finding). We may do
the same to resolve an internal inconsistency in a judgment.
Rood,
129 Or App at 426 (where “an obvious clerical error”
causes a judgment to be “internally inconsistent and ambiguous on its face,” “we may look at the record to determine
the court’s true intent and instruct the trial court to modify
the [judgment] accordingly”); State v. Cardwell,
48 Or App
93, 97,
615 P2d 1198 (1980) (looking to the record “to determine the trial court’s real intent,” where its written order
was “ambiguous and internally inconsistent” as to the disposition of certain counts). We have also vacated and remanded
judgments for correction where the record reveals an obvious
clerical error, even if the judgment itself is unambiguous.
E.g., State v. D. Z.,
274 Or App 77, 80,
359 P3d 1246 (2015)
2
Mother takes issue with which parent is supposed to get 202 overnights
and which parent is supposed to get 163 overnights, but she does not contest that
202 and 163 are otherwise the correct numbers for the time split that the trial
court had in mind. A simple calculation suggests that those numbers are correct.
If one presumes that there are 14 weeks of summer, breaks, and holidays in a
typical school year, then a parent who has a child four overnights per week in the
school year and half of the summer, breaks, and holidays would have the child for
exactly 202 overnights, while a parent who has a child three overnights per week
in the school year and half of the summer, breaks, and holidays would have the
child for exactly 163 overnights.
34 Wright v. Lutzi
(vacating and remanding an order of civil commitment for
correction, where it was apparent from the record that the
court had checked the wrong box on the form regarding the
basis for the commitment); State v. Selmer, 231 Or App 31,
33-35,
217 P3d 1092 (2009), rev den,
347 Or 608 (2010) (vacating and remanding for entry of a corrected judgment, where
the judgment misstated the crime of conviction).
In this case, the trial court did not make an obvious
clerical error in reducing its decision to a written judgment.
The parenting-time provision in the judgment reflects the
schedule that father orally suggested during trial, so it is
clearly intentional, not a scrivener’s error. The judgment
is internally inconsistent, however, in that it designates
mother’s home as J’s primary residence and calculates child
support based on mother having four overnights per week
during the school year (202 overnights per year total) and
more time overall than father, but the parenting-time provision gives mother only three overnights per week during
the school year (163 overnights per year total) and less time
overall than father.
We cannot resolve the internal inconsistency in
the judgment by reference to the court’s oral statements,
because it is apparent from the record that the inconsistency originates in father’s own inconsistent proposals,
all of which the court adopted, presumably without realizing their inconsistency. Father acknowledged at trial that
mother’s home should be J’s primary residence and that
mother should have “more” parenting time than him, and
he stated twice that he wanted J with him “three days a
week” and with mother “four days a week.” Nonetheless,
father proposed specific pick-up and drop-off times that gave
him four overnights and mother three overnights per week.
To the extent that father’s references to “switching around”
the 2017 schedule and imposing “the opposite” of that schedule were intended as a request that he have four overnights
only three times a month, see 326 Or App at 31 n 1, he was
not clear on that point, and that is not how the trial court
understood his request.
We presume that father did not realize that he was
making inconsistent requests regarding parenting time and
that, in adopting what it understood to be father’s proposal,
Cite as 326 Or App 29 (2023) 35
the trial court did not realize that it was being inconsistent.
Mother brought the inconsistency to the court’s attention the
same day that the judgment was entered, but the court took
no action.3 We are therefore left with an internally inconsistent judgment that cannot be corrected by looking to the
record for evidence of the court’s “true” or “real” intent. The
record shows that, due to an unrealized day-counting error,
the trial court simultaneously held two inconsistent intentions, each of which is reflected in different provisions of the
written judgment: (1) to make mother’s home J’s primary
residence and to have J spend four days with mother and
three days with father each week during the school year, and
(2) to give father parenting time from Thursday after school
until Monday morning, which is four overnights. There is
simply no way for us to resolve that inconsistency, because it
is impossible on this record to know which intention would
have given way to the other had the trial court realized the
inconsistency in its judgment.
Under the circumstances, we vacate and remand for
further proceedings to address the inconsistency. Cf. State
v. Foss-Vigil, 304 Or App 267, 276-77,
467 P3d 38, rev den,
367 Or 290 (2020) (vacating and remanding “in light of the
inconsistency in the judgment,” where the trial court ordered
two conflicting dispositions by checking both of two boxes
intended as alternatives); Breece v. Amsberry,
279 Or App
648, 650-51,
381 P3d 1086 (2016) (vacating and remanding
for clarification, where a judgment was ambiguous as to the
basis for dismissal); State v. Leen,
113 Or App 595, 596,
832
P2d 49 (1992) (stating that, on remand, the trial court could
“establish what it intended” by an “ambiguous” probation
term in the reversed judgment).
Vacated and remanded.
3
We do not infer anything from the trial court taking “no action” on mother’s
post-judgment letter, as there could be any number of reasons to take “no action”
on a letter from a pro se party. As for preservation, mother did not need to do more
than she did under the circumstances. During the hearing, each parent advocated for his or her own parenting-time preferences; mother had no legal basis to
object to father’s arguments. It was not apparent until the judgment was entered
that the judgment would contain an inconsistency. See Peeples v. Lampert, 345 Or
209, 220,
191 P3d 637 (2008) (“In some circumstances, the preservation requirement gives way entirely, as when a party has no practical ability to raise an
issue.”).
