Adams and Lennert

No. 489 June 4, 2025 67 IN THE COURT OF APPEALS OF THE STATE OF OREGON Natasha R. ADAMS, Petitioner-Respondent, and Nicholas M. LENNERT, Respondent-Appellant. Jackson County Circuit Court 123878D3; A183305 David J. Orr, Judge. Argued and submitted April 15, 2025. Jamie L. Hazlett argued the cause and filed the brief for appellant. No appearance for respondent. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. KAMINS, J. Affirmed. 68 Adams and Lennert KAMINS, J. Father appeals the trial court’s denial of his ORCP 71 B(1)(c) motion to set aside a supplemental judgment con- taining a child support award in which the trial court calcu- lated mother’s income as minimum wage. He assigns three errors on appeal: the trial court erred in (1) determining that mother’s misrepresentations regarding her income did not justify setting aside the judgment, (2) not considering mother’s “tactics” during discovery as evidence of extrinsic fraud, and (3) determining that there was not sufficient evi- dence of any difference in mother’s income. We affirm. This appeal stems from father’s motion to modify custody and parenting time and mother’s motion to modify child support payments. At the hearing on those motions, father expressed some concerns about discovery he had not received, particularly bank statements detailing deposits from mother’s “side business” of selling items online, but he ultimately opted to proceed with the hearing rather than wait to receive those bank statements. In the judgment containing the child support award, the court calculated father’s income to be $22,000 a month and, because mother was unemployed, imputed her income at minimum wage. Father filed an ORCP 71 motion to set aside that judgment—the subject of this appeal—arguing that mother had misrepresented that she had no income despite the fact that she was selling items online. At the hearing on that motion, mother testified that she did not report the sale of her items as income because those items were household items that sold for less than their original price. Mother also testified that the sale of those items did not exceed the minimum wage. The court denied the motion to set aside, concluding that father did not establish that mother “had meaningfully misstated her income.” Father appeals that decision, assigning three errors. In father’s first assignment of error, he contends that the trial court erred by concluding that mother’s “fraud was not ‘substantial’ enough to warrant a set aside.” See ORCP 71 (B)(1)(c) (authorizing the trial court to set aside a judgment based on extrinsic or intrinsic fraud or misrepresentation). Cite as 341 Or App 67 (2025) 69 “We review a trial court’s decision to grant or deny relief under ORCP 71 B for abuse of discretion.” VP Real Estate Investment Services v. Naftaniel, 334 Or App 747, 748, 557 P3d 196 (2024). “[T]hat discretionary decision can involve predicate factual and legal determinations.” Kasliner v. Dept. of Human Services, 330 Or App 85, 103, 543 P3d 131, rev den, 372 Or 560 (2024) (internal quotation marks omitted). And we “review [those] predicate legal determinations for errors of law and predicate factual determinations for lack of sup- porting evidence.” Id. at 103-04 (citations omitted). Father identifies three instances in which he con- tends that mother made “key” misrepresentations justifying setting aside the judgment. First, father points out that, prior to the entry of the judgment, mother testified that she did not use PayPal for her online sales transactions. However, when he finally received mother’s bank statements, father learned that mother had indeed used PayPal to conduct online sales. Second, also prior to the entry of the judgment, mother tes- tified that she was “unemployed,” despite having an income from those online sales. And lastly, father contends that mother’s counsel misrepresented mother’s income by stating that she did not have an income for several months despite receiving a paycheck from her then-employer, Rogue Credit Union (RCU) during that time timeframe. The trial court did not abuse its discretion. To set aside a judgment under ORCP 71 B(1)(c),1 there must be clear and convincing evidence that the judgment was pro- cured as a result of fraud, overreaching or “other miscon- duct.” Auble and Auble, 125 Or App 554, 559, 866 P2d 1239 (1993). None of the discrepancies that father identifies rise to that level such that the trial court’s decision was legally impermissible. See State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000) (a trial court’s discretionary authority allows it to choose