In re the Marriage of Hansen

571 P.2d 568, 31 Or. App. 823, 1977 Ore. App. LEXIS 2078
CourtCourt of Appeals of Oregon
DecidedNovember 21, 1977
DocketNo. 75 5719, CA 8474
StatusPublished
Cited by4 cases

This text of 571 P.2d 568 (In re the Marriage of Hansen) 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 Hansen, 571 P.2d 568, 31 Or. App. 823, 1977 Ore. App. LEXIS 2078 (Or. Ct. App. 1977).

Opinion

JOSEPH, J.

Wife appeals from the denial of her motion to vacate a decree of dissolution. The decree was entered against her by default on April 26, 1976. Her motion was filed on January 24, 1977. It alleged that the decree should be set aside under ORS 18.160.1 In the accompanying affidavit wife alleged in particular that the property settlement agreement incorporated in the decree was grossly inequitable; that she signed the agreement without knowledge of her rights and without legal counsel or advice, under duress and in fear for her life and physical well-being; that she was advised by husband not to seek legal counsel with regard to the dissolution; that she was "without knowledge of the law or of the business”; and that she was not notified of the date that the default decree was taken.

The evidence presented at the hearing on the motion negated several of these allegations, and the circuit court found that the decree was not procured as the result of duress, mistake, inadvertence, surprise or excusable neglect. The court did find that the property settlement agreement was inequitable but nonetheless refused to set aside the decree. On appeal, wife concedes that there was no mistake, inadvertence, surprise or excusable neglect, and relies solely upon what she denominates "duress” and upon the claimed gross inequity of the property settlement agreement.

Husband and wife were married 18 years and had three children. Neither wife nor husband brought a significant amount of assets to the marriage, but in their years together they accumulated considerable property, including a 350-acre farm with a house, farm equipment, livestock and an automobile. The value of [[826]]*[826]these assets is in dispute. Wife claims that the real property alone is worth as much as $725,000, while husband claims that it is worth less than $300,000.

After an argument in 1974, husband asked what wife would want if they separated, and she indicated in writing that she would be satisfied with $50,000, the car and some corporate stock. As a result of further marital problems, wife moved out of the house and to another city in September, 1975, leaving the children with husband. After the separation, the parties went together to an attorney. After ascertaining that there was no dispute as to a proposed property division, and after advising wife to retain her own attorney, he agreed to draw up a property settlement agreement reflecting wife’s wishes as expressed in 1974. She did not object. Later she requested $2,000 more, and the agreeement was modified to grant her that additional amount and to delete the corporate stock. Husband brought the modified agreement to wife, and she signed it in the presence of a notary while her husband waited outside. Later, wife accepted service of husband’s petition for dissolution (which incorporated the modified property settlement) and signed a waiver and consent to default. She never sought the services of another attorney, despite having been advised to do so.

Wife testified that husband called her in April, 1976, and told her that he had gone to court and that they were divorced. She did not appeal the dissolution; rather, she cooperated in carrying out the property division provisions by signing the necessary deeds transferring property to her ex-husband. She never complained about the property settlement until January, 1977, when she filed the motion to vacate.

The motion to vacate was explicitly based upon ORS 18.160 and the grounds set forth in that provision. Her affidavit in support of the motion also alleged duress and gross inequity, which are not statutory grounds. Much of the evidence presented at [[827]]*[827]the hearing focused upon the latter two allegations and the trial court made findings thereon.

The first question is whether duress and gross inequity, not being among the grounds listed in ORS 18.160, are proper grounds for a motion to vacate. It is clear that ORS 18.160 does not provide the exclusive grounds for vacating a decree. Morphet v. Morphet, 263 Or 311, 502 P2d 255 (1972); Harder v. Harder, 26 Or App 337, 552 P2d 852 (1976). In Morphet the Supreme Court noted that "* * * in addition to the power conferred upon the court by that statute, it is well established that an Oregon circuit judge also has inherent power to correct or set aside a previous judgment, provided that it does so within a reasonable time * * *.” 263 Or at 317. Prior to the enactment of ORS 1.055,2 that inherent power to correct or set aside a previous judgment was limited to the term of court in which the judgment was entered, but the power has always been considered nearly absolute if exercised within the relevant time limitations. See Deering v. Quivey, 26 Or 566, 38 P 710 (1895). ORS 1.055 did not alter the scope of this power. It was, therefore, within the power of the circuit court to vacate the decree of dissolution on the ground of duress or gross inequity, provided the power was exercised within a reasonable time.

The second issue presented is whether the trial court acted properly in denying the motion. A motion to vacate, whether based upon ORS 18.160 or upon other grounds within the court’s inherent power, is directed to the sound legal discretion of the trial court, and we will overturn a decision only for a plain abuse [[828]]*[828]of that discretion. See Ayers v. Lund, 49 Or 303, 305, 89 P 806, 124 Am St R 1046 (1907); Brandt v. Brandt, 9 Or App 1, 495 P2d 1205 (1972).

Wife’s testimony as to the alleged duress was sketchy. She claimed that her husband had physically abused her at times during the marriage, that he had remarked that if any woman tried to "take” him for a large settlement he could put out a contract on her life for $3,000, and that in general her husband was so domineering that she was afraid to consult a lawyer or contest the dissolution proceedings in any way. Husband denied these allegations and presented witnesses whose testimony indicated that wife was not dominated by husband. Wife also claimed that she was hoping for reconciliation when she signed the agreement. Where credibility is such a significant issue as it is here we place great reliance upon the trial court’s determination. Held v. Held, 8 Or App 280, 493 P2d 1388 (1972). The circuit court found no duress in the procurement of the decree. That finding was correct.

We also cannot find any reason for overturning the circuit court’s refusal to vacate the decree on the ground of gross inequity in the property settlement. Although the court found the property settlement inequitable, the court’s power to vacate the decree on that ground, as noted in Harder, is limited by the requirement that it be done within a reasonable time.

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Related

In re the Marriage of Gilbert
876 P.2d 830 (Court of Appeals of Oregon, 1994)
State ex rel. Renninger v. Renninger
730 P.2d 37 (Court of Appeals of Oregon, 1986)
In re the Marriage of Davidson
632 P.2d 35 (Court of Appeals of Oregon, 1981)
Harder v. Harder
619 P.2d 1367 (Court of Appeals of Oregon, 1980)

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571 P.2d 568, 31 Or. App. 823, 1977 Ore. App. LEXIS 2078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hansen-orctapp-1977.