In re the Dissolution of the Marriage of Archer

556 P.2d 698, 27 Or. App. 555, 1976 Ore. App. LEXIS 1488

• Court: Court of Appeals of Oregon
• Decided: November 29, 1976
• Docket: No. 93624, CA 6328
• Status: Published

Opinions

SCHWAB, C. J.

Wife appeals from an order denying her motion to set aside a decree of dissolution of marriage.

On December 1, 1975, while the dissolution proceedings were pending, wife discharged her attorney and, against his advice and the advice of husband’s attorney, did not retain another attorney prior to the dissolution hearing. Though wife was notified at least three times that the hearing was set for January 30, 1976, she did not appear at that time. After hearing husband’s testimony, the circuit court granted the petition for dissolution and adopted husband’s proposed property division. On March 2, 1976, wife filed this motion to vacate the dissolution decree, on the ground that her mental condition at the time of the hearing was such that her failure to appear must be considered excusable neglect as specified in ORS 18.160.¹ The circuit court denied wife’s motion on April 22, 1976.

A circuit court’s denial of a motion to vacate pursuant to ORS 18.160 may be reversed only when the denial of the motion constitutes an abuse of discretion. Becker v. Becker, 271 Or 708, 533 P2d 1367 (1975). When the motion seeks to establish that a party’s mental condition at the time of the original judgment compels a finding of excusable neglect, the circuit court’s denial must stand unless the nature of that mental condition and the extent of the resulting disability is clearly shown. Sibold v. Sibold, 217 Or 27, 340 P2d 974 (1959).

Here, wife testified that she was extremely depressed and distraught at the time of the dissolution hearing, that she was contemplating suicide, and that she does not recall receiving many of the notices of the trial date sent to her. Wife’s son testified that in the two-week period preceding the hearing his mother "couldn’t control herself” and was generally quite distressed. However, the reports of two doctors who examined wife do not support wife’s contentions. A letter from wife’s physician to her present attorney indicates that wife’s condition improved throughout January, 1976, and that by January 20, 1976, "she looked much less depressed and more relaxed.” A psychiatrist who examined wife four days after the dissolution hearing found her to be "in good contact with reality * * * her sensorium[²] * * * clear, her memory adequate, and orientation proper.”

Thus, the evidence elicited below was not unequivocal as to the nature and extent of wife’s disability. Under these circumstances, we cannot say that the circuit court, which had the additional advantage of observing the witnesses, see Held v. Held, 8 Or App 280, 493 P2d 1388 (1972), abused its discretion in denying wife’s motion to be relieved of the judgment of dissolution.

Affirmed. No costs to either party.

1 ORS 18.160 provides:

"The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.”

2 Webster’s Third New International Dictionary (unabridged 1971) defines "sensorium” as "the parts of the brain that are concerned with the reception and interpretation of sensory stimuli.”