In re the Marriage of Coleman

Court of Appeals of Oregon

In re the Marriage of Coleman

692 P.2d 129, 71 Or. App. 313, 1984 Ore. App. LEXIS 4718

CourtCourt of Appeals of Oregon

DecidedDecember 5, 1984

Docket15-82-05370; CA A30356

StatusPublished

This text of 692 P.2d 129 (In re the Marriage of Coleman) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Marriage of Coleman, 692 P.2d 129, 71 Or. App. 313, 1984 Ore. App. LEXIS 4718 (Or. Ct. App. 1984).

Pincite

Opinion

PER CURIAM

Husband appeals the denial of his motion to set aside a default order entered against him in a dissolution proceeding. He alleges that it was procured by wife’s fraud and misconduct. In his affidavit, he claims that he refrained from hiring an attorney and deliberately allowed a default order to be entered against him, because wife had agreed to petition the court for a “fair and equitable 50-50 split of the assets,” but, in fact, she asked for and received nearly all of the marital estate. In her affidavit, wife denies that she ever agreed to an even split of assets and alleges, among other things, that she fully expected to try the case on the date set for trial. After having rejected husband’s request for a hearing, the trial judge denied his motion on the basis of the affidavits alone. In the light of the many inconsistencies between the affidavits, the parties’ credibility is the crucial factor in this case. By denying husband’s motion, the court implicitly found wife to be more credible. Without further explanation from the trial judge, we are unable to understand how he could have made that determination, given the facts of this case, without having conducted an evidentiary hearing. Accordingly, his decision cannot be sustained on this record.

Reversed and remanded for further proceedings. Costs to husband.

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PER CURIAM

Husband appeals the denial of his motion to set aside a default order entered against him in a dissolution proceeding. He alleges that it was procured by wife’s fraud and misconduct. In his affidavit, he claims that he refrained from hiring an attorney and deliberately allowed a default order to be entered against him, because wife had agreed to petition the court for a “fair and equitable 50-50 split of the assets,” but, in fact, she asked for and received nearly all of the marital estate. In her affidavit, wife denies that she ever agreed to an even split of assets and alleges, among other things, that she fully expected to try the case on the date set for trial. After having rejected husband’s request for a hearing, the trial judge denied his motion on the basis of the affidavits alone. In the light of the many inconsistencies between the affidavits, the parties’ credibility is the crucial factor in this case. By denying husband’s motion, the court implicitly found wife to be more credible. Without further explanation from the trial judge, we are unable to understand how he could have made that determination, given the facts of this case, without having conducted an evidentiary hearing. Accordingly, his decision cannot be sustained on this record.

Reversed and remanded for further proceedings. Costs to husband.

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Bluebook (online)

692 P.2d 129, 71 Or. App. 313, 1984 Ore. App. LEXIS 4718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-coleman-orctapp-1984.