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Ivers v. Salladay

Summarized by: 

Date Filed: 10-24-2012
Case #: A145084
Nakamoto, J. for the Court; Schuman, P.J.; and Wollheim, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A145084.pdf

Civil Procedure: ORCP 68 does not apply when there is not a substantive right to recover attorney fees. It would be contrary to the structure and purpose of UTMA to apply ORCP 68.

Salladay, the custodian of his minor daughter’s interest in a house under the Uniform Transfer to Minors Act (UTMA), improved the home and sold it for a profit. Ivers, the mother and conservator of the minor daughter, filed an action to remove Salladay as custodian. Salladay filed a counter claim for attorney fees and custodial expenses. The trial court found for Salladay, who later filed and was allowed to recover reasonable reimbursement expenses and attorney fees from the estate. On appeal, Ivers claimed Salladay’s motion for reimbursement of expenses and attorney fees was untimely, relying on ORCP 68 C. The Court of Appeals held that ORCP 68 C does not apply to custodial expenses under the UTMA and it would be contrary to the purpose of UTMA if it were to apply. Not all awards for attorney fees are covered under ORCP 68 C, which only covers attorney fees that a party has a substantive right to recover. Thus, the trial court correctly allowed the recovery of expenses and attorney fees. Affirmed.