See also Renninger and Renninger, 82 Or App 706, 711, 730 P2d 37 (1986) ("A court has inherent power to modify the property division provisions of a dissolution judgment based on fraud, duress or gross inequity, or breach of fiduciary duty." (citations omitted)). Husband argues that we were simply wrong in holding that a breach of fiduciary duty supports relief under ORCP 71 C. We decline to reconsider our prior cases.⁽¹⁾

Husband argues that, even assuming a claim of breach of fiduciary duty suffices to warrant relief under ORCP 71 C, wife neither pleaded nor proved her claim. Thus, husband contends, the trial court still should have granted his motion to dismiss. For the same reasons, husband also contends that the trial court should have granted his motion for a judgment of dismissal at trial.

We consider those arguments together, as they raise essentially the same issue. In evaluating whether a trial court properly denied a motion to dismiss a claim that ultimately went to trial, we consider the whole record, including the evidence introduced by both parties at trial, to determine whether the plaintiff presented a prima facie case. Scholes v. Sipco Services & Marine, Inc., 103 Or App 503, 506, 798 P2d 694 (1990). In evaluating a trial court's denial of a motion for a judgment of dismissal under ORCP 54 B(2) at the close of the plaintiff's evidence, we again examine the whole record, to determine whether the plaintiff introduced "credible evidence on the essential elements of the cause or causes of action." Castro and Castro, 51 Or App 707, 713, 626 P2d 950 (1981).

Husband in this case argues that wife's pleading and proof was deficient in two respects: First, in that she failed to show the existence of a fiduciary relationship and, second, in that she failed to show that husband breached a fiduciary duty, assuming that such a relationship existed.

We begin with the question whether wife presented evidence of a fiduciary relationship. A fiduciary duty exists when there is a relationship of special confidence, in which one party to the relationship is bound to act in good faith and with due regard to the interests of the other. Starkweather v. Shaffer, 262 Or 198, 205, 497 P2d 358 (1972). Oregon courts have recognized that a relationship of husband and wife is such a relationship of special confidence, requiring "a fiduciary duty of the highest degree." Eltzroth and Eltzroth, 67 Or App 520, 525, 679 P2d 1369 (1984). That fiduciary duty continues "'while the parties contemplate dissolution of their marriage as long as the confidential relationship remains intact, and the parties are not dealing at arms' length through separate agents or attorneys.'" Auble and Auble, 125 Or App 554, 560, 866 P2d 1239 (1993) (quoting Eltzroth, 67 Or App at 522). Determining precisely when the confidential relationship ceases is not the subject of an easy litmus test. Any number of actions by the parties may suffice. Id. But as long as there is "confidence reposed on one side with a resulting superiority and influence on the other," the relationship continues, as does the fiduciary duty that attends it. Id. (quoting U.S. National Bank v. Miller, 74 Or App 405, 411, 703 P2d 246 (1985)).

In this case, there is evidence that, throughout the marriage, husband managed the family financial affairs and that wife had little knowledge of husband's financial interests; wife relied on husband for such information. During the separation, wife continued to rely on husband for information concerning the family finances. Further, although they lived separately, they met frequently, celebrated holidays and attended other family events together. Although both husband and wife consulted briefly with separate attorneys, they did not negotiate their settlement through counsel. They dealt directly with one another. Wife testified that, throughout the negotiations, she did not question whether husband was disclosing all of his assets. Husband drafted the settlement agreement and brought it to wife for her signature. On the basis of the foregoing evidence, we conclude that wife offered evidence of the existence of a relationship of confidence, and, in consequence, of the existence of a fiduciary duty.

We turn, then, to the question whether there is evidence that husband breached that fiduciary duty. A marital partner who is subject to a fiduciary duty has a duty "to deal with [the other marital partner] fairly and to make a full and frank disclosure of all circumstances materially bearing on the contemplated agreement, including a full disclosure of marital assets." Eltzroth, 67 Or App at 526. In this case, there is evidence that, although wife was aware of the existence of Rogue Valley and of the beach house, she did not know of the nature and extent of husband's interests in those assets. There also is evidence that, although at the time of the settlement negotiations, husband knew that he held, or shortly was about to hold, a 50-percent interest in Rogue Valley, he failed to say anything about that holding to wife. Further, there is evidence that husband held title to the beach house, that he knew of the existence of that interest, that he knew that wife did not fully understand the nature of that interest, and that he simply refused to include it in the list of assets during settlement negotiations. In the light of that evidence, we conclude that wife presented evidence of husband's breach of his fiduciary duty and that the trial court therefore did not err in denying both husband's motion to dismiss the seventh claim before trial and the motion for judgment of dismissal during trial.

Husband next argues that the trial court erred in entering judgment in favor of wife on her seventh claim, that is, in setting aside the dissolution judgment under ORCP 71 C. We review the trial court's decision to grant relief under ORCP 71 C for an abuse of discretion. Dept. of Human Resources v. Shinall, 148 Or App 560, 563, 941 P2d 616 (1997). Husband begins by asserting that the trial court abused its discretion because there was no evidence of either a fiduciary duty or a breach of a fiduciary duty. As we have explained, however, there is such evidence.

Husband alternatively asserts that wife failed to file a timely request for relief under ORCP 71 C, having waited more than five years from the entry of the dissolution judgment. Wife testified, however, that she did not learn of the nature and extent of husband's interest in Rogue Valley until 1994, a matter of months before she initiated the ORCP 71 C action. She further testified that she did not learn that husband held title to the beach house until depositions in 1996. ORCP 71 C recognizes a court's authority to modify a judgment within a "reasonable time." The trial court did not abuse its discretion in concluding that wife initiated her ORCP 71 C claim within a reasonable time following her knowledge of the basis for the claim.

As still another alternative argument, husband asserts that wife waived the right to bring the ORCP 71 C action when she executed the settlement agreement, which contained an express waiver of rights. Husband, however, did not plead waiver as a defense and did not assert the argument below. ORAP 5.45. We conclude, therefore, that the trial court did not abuse its discretion in granting relief under ORCP 71 C.

Husband next assigns error to the trial court's denial of his motion to dismiss wife's fifth claim for relief, that is, the breach of fiduciary duty claim for damages. He also assigns error to the trial court's denial of his motion for a judgment of dismissal under ORCP 54 B(2) as to the same claim. As with husband's contentions regarding the seventh claim, we consider the two assignments together, as they present essentially the same legal issue. Scholes, 103 Or App at 506; Castro, 51 Or App at 713.

Husband argues that the claim should have been dismissed as a matter of law because it constitutes an impermissible collateral attack on the dissolution judgment. Husband's argument is, frankly, difficult to understand. The complaint alleged in the fifth claim a breach of fiduciary duty, which claim was incorporated by reference as a basis for asserting relief from the judgment under ORCP 71 C. Even assuming, for the sake of argument, that the fifth claim--standing alone--was an impermissible collateral attack on the dissolution judgment, the fact remains that the claim was the permissible basis for a direct attack on the dissolution judgment under ORCP 71 C. Campbell, 151 Or App at 338; Renninger, 82 Or App at 709.

On the same ground, husband also assigns error to the trial court's entry of judgment in favor of wife on her fifth claim. We reject that assignment without further discussion.

Husband next contends that the trial court erred in reopening the dissolution case pursuant to ORS 107.452. According to husband, the statute was enacted six years after the dissolution judgment was entered in this case and was not intended to apply retroactively to permit courts to reopen cases that became final before the effective date of the act. Wife contends that, because the trial court denied wife relief under ORS 107.452--and instead modified the dissolution judgment under ORCP 71 C--whether the court erred in denying husband's motion to dismiss the ORS 107.452 proceeding is academic. In any event, she argues, ORS 107.452 was intended to apply retroactively.

We agree with wife that it is not necessary to address the question whether the trial court erred in denying husband's motion to dismiss the proceeding initiated under ORS 107.452, because the trial court ultimately denied relief under that statute. We therefore express no opinion as to whether the statute was intended to apply retroactively.

Husband next assigns error to the trial court's award of attorney fees, arguing that wife had failed to allege entitlement to attorney fees. In any event, husband argues, there is no statutory basis for an award of attorney fees in this case. Wife argues that the fact that she alleged entitlement to fees in the ORS 107.452 action was sufficient to put husband on notice that she intended to seek fees and that ORS 107.105(1), which authorizes courts to include an award of fees in a dissolution judgment, provides the basis for an award in this case.

We agree with husband that the trial court erred in awarding attorney fees. Although it is not necessary to specify the exact statutory provision under which a party is seeking attorney fees, it is necessary to make the request, so that the parties are fairly alerted that attorney fees will be sought. Douthit and Swift, 125 Or App 466, 471, 865 P2d 479 (1993). In this case, although wife alleged a right to attorney fees in the ORS 107.452 case, she did not allege a right to attorney fees in the separate civil proceeding. The two proceedings later were consolidated, but, given that the request for attorney fees was expressly predicated on success in the ORS 107.452 case only, we conclude that husband was not fairly alerted to the possibility that wife intended to seek attorney fees even if she did not prevail in the statutory action.

Husband finally assigns error to the trial court's decision to award wife prejudgment interest. Wife contends that husband failed to preserve that assignment. We agree. Husband, in fact, concedes that he did not raise the issue below. We are not persuaded that the alleged error is apparent on the face of the record or that it is error that we should review in our discretion, despite the failure to preserve it. See Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991).

Award of attorney fees vacated; otherwise affirmed.

1. The basis for husband's contention that Campbell and Renninger are wrong is not entirely clear. Husband asserts that they are inconsistent with the Supreme Court's decision in Johnson v. Johnson, 302 Or 382, 730 P2d 1221 (1986). In Johnson, the court held that, if fraud is the basis for setting aside a judgment under ORCP 71 C, it must be extrinsic fraud, that is, fraud that deprived the complaining party of "a real contest before the court" about the matters in issue. Id. at 394. We need not address the extent to which our cases are inconsistent with Johnson, however. Even assuming that Johnson requires that a breach of fiduciary duty also be extrinsic in nature, the pleadings and proof at trial in this case provide evidence that husband's failures to disclose deprived wife of an opportunity to obtain a "real contest" before the dissolution court. In other words, the breach of fiduciary duty was extrinsic in nature.

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