No. 27 January 22, 2026 587
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Marriage of
Melissa Anne BAILEY,
Petitioner-Appellant,
and
Brian Roger BAILEY,
Respondent-Respondent.
Josephine County Circuit Court
18DR10948; A185034
Brandon S. Thueson, Judge.
Submitted December 2, 2025.
Jamie L. Hazlett filed the briefs for appellant.
George W. Kelly filed the brief for respondent.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
JOYCE, J.
Affirmed.
588 Bailey and Bailey
JOYCE, J.
Mother appeals from an order denying her motion
to set aside a supplemental judgment governing parenting
time and child support. Mother asserts that she was entitled
to relief under ORCP 71 B(1) based on excusable neglect. We
affirm.
ORCP 71 B(1) permits a court to relieve a party from
a judgment based on, as relevant here, excusable neglect.
Union Lumber Co. v. Miller, 360 Or 767, 777,
388 P3d 327
(2017). We review the trial court’s ruling as to whether
mother’s neglect constituted a cognizable ground for relief
for legal error, deferring to the “trial court’s express or
implied findings of disputed fact underlying its legal determinations.”
Id. at 778.
The relevant facts are few. Father moved to modify the parties’ judgment of dissolution to change parenting
time and child support. The trial court issued a letter opinion that, among other things, concluded that child support
had to be adjusted in light of a parenting time modification.
The court noted that it had no evidence of mother’s income
and that it would hold a “short evidentiary hearing” if the
parties could not agree on mother’s income.
Father’s attorney then prepared a form of judgment
that listed mother’s monthly income as $9,723.93, based on
mother’s tax return provided by mother’s attorney. Mother’s
attorney told father’s attorney that the proposed judgment
was “[g]ood to file,” and the trial court signed and entered
the judgment on April 1, 2024.
Mother’s attorney then sent mother a copy of the
judgment. Mother emailed her attorney, questioning why the
judgment listed her monthly income as $9,723.93; according to mother, that figure represented her monthly gross
business income as a self-employed person, rather than her
monthly adjusted gross income, which was $1,942.41. Mother
asked her attorney to amend the judgment so that it listed
the adjusted gross income figure ($1,942.41) as her monthly
income. Mother’s attorney contacted father’s attorney and
asked to submit an amended judgment that used mother’s
adjusted gross income amount. Mother’s attorney explained
Nonprecedential Memo Op: 346 Or App 587 (2026) 589
that she had “overlooked the amount” that father’s attorney
had used because she had been focused on a different provision in the judgment.1
Father’s attorney declined the invitation to submit
an amended judgment, stating that she believed that she
had used the “correct income.” Father’s attorney explained
that the income figure was based on the information mother
had provided via her tax return. Father’s attorney also noted
that mother had prepared her own tax return and that “there
[were] some concerning portions of it that [she] doubt[ed
mother] would want scrutinized too hard.” Mother’s attorney
then told mother that “they had to use the [higher] income
because we provided tax returns for income” and suggested
that mother could go through “DOJ to make changes[.]”
Mother then moved to set aside the supplemental
judgment under ORCP 71 B(1). She argued that she had
wanted to make certain objections to the form of judgment
that father’s attorney prepared, and she had communicated those concerns to her attorney. But because mother’s
attorney “failed to raise [those] objections in a timely manner,” the judgment was filed without those objections being
noted. Mother argued that she was entitled to relief based
on “attorney neglect.”
The trial court denied mother’s motion. It concluded that it would have to find that mother’s attorney
“was neglectful in her representation of” mother to set aside
the judgment. The court noted that it did not know whether
mother’s attorney “believed income was calculated correctly,
or if she was satisfied with [father’s attorney’s] argument
that income should not be adjusted, or whether she did not
believe further argument on the issue would be helpful[.]”
The court concluded that the record before it did not “lead
[it] to conclude that [mother’s attorney] was neglectful in her
representation.” Mother now appeals.
1
Mother also asked her attorney to pursue two other issues involving therapy costs and child support for when the children reach the age of majority. The
trial court denied the motion to set aside the judgment with respect to those two
issues because the court had addressed them in prior judgments in the case. On
appeal, mother does not appear to challenge those issues, focusing instead on the
income figure used for child support, and in any event, the trial court’s resolution
of those issues was legally correct.
590 Bailey and Bailey
The trial court did not err in denying mother’s
motion. As the party seeking relief, mother bears the burden of proving excusable neglect. PGE v. Ebasco Services,
Inc., 263 Or App 53, 66,
326 P3d 1274 (2014). She has failed
to carry that burden here. As the trial court noted, based on
the limited record before it, it could not conclude that mother’s attorney had been neglectful. Mother did not demonstrate that her attorney had engaged in excusable neglect
because there is no evidence that any neglect occurred at
all—indeed, as the trial court hypothesized, mother’s attorney could have decided that there was no basis to use the
lower income figure because the higher income figure that
father’s attorney used had been based upon mother’s own
tax return and that any further argument would not have
advanced mother’s position (notwithstanding mother’s
desire to have her income set at a lower amount).
Mother argues that the trial court committed legal
error by focusing on whether mother’s attorney’s conduct
constituted “excusable neglect” because, in mother’s view,
“the key question is whether mother’s conduct in relying
upon her attorney’s misrepresentations” constituted excusable neglect. There are two difficulties with that argument.
The first is that mother framed her motion to set aside the
supplemental judgment as one of “attorney neglect.” She cannot now fault the trial court for following her lead. Second,
there is no evidence of any misrepresentations upon which
mother relied and thus, even if we were to frame the issue
as mother does, the record does not support a conclusion of
excusable neglect.
That lack of record is what differentiates this case
from others in which we have concluded that a mistake or
negligence by a party’s attorney is excusable neglect and,
thus, can be grounds for relief from a judgment of default.
We have allowed relief where the record demonstrated that
the moving party’s attorney made an erroneous assumption
that no answer was due because a settlement offer was pending, or that no appearance was due because a show cause
was pending. Hoddenpyl v. Fiskum, 281 Or App 42, 49-50,
383 P3d 432 (2016) (collecting cases); see, e.g., Hamel-Bishop
and Bishop,
179 Or App 473, 477,
40 P3d 561 (2002) (finding
Nonprecedential Memo Op:
346 Or App 587 (2026) 591
excusable neglect for the mother’s failure to appear when
the record reflected that her out-of-state attorney attempted
to file an appearance for her but failed to follow the appropriate procedures for doing so). Here, there is no similar evidence of an erroneous assumption or disregard of procedure
on the part of the moving party’s attorney to support a finding of excusable neglect.
Affirmed.
