In re the Marriage of Housley

120 P.3d 1245, 202 Or. App. 182, 2005 Ore. App. LEXIS 1318
CourtCourt of Appeals of Oregon
DecidedOctober 12, 2005
Docket02-3108; A122691
StatusPublished
Cited by3 cases

This text of 120 P.3d 1245 (In re the Marriage of Housley) 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 Housley, 120 P.3d 1245, 202 Or. App. 182, 2005 Ore. App. LEXIS 1318 (Or. Ct. App. 2005).

Opinion

ROSENBLUM, J.

In this dissolution of marriage proceeding, husband appeals an order granting wife’s motion to set aside the judgment of dissolution, which was entered after wife failed to appear for trial. The trial court, in setting aside the judgment pursuant to ORCP 71 B(l)(a), found “excusable neglect” on wife’s part.

Wife has moved to dismiss the appeal, asserting that the trial court’s order is not an appealable order. We initially denied the motion, but we now reconsider our earlier ruling and conclude that the trial court’s order is not appealable under ORS 19.205 (2001), amended by Or Laws 2003, ch 576, § 85.1 Our conclusion is compelled by Walker v. Clyde et ux, 206 Or 322, 292 P2d 1083 (1956), in which the Supreme Court held that an order materially indistinguishable from the one in this case was not appealable under former ORS 19.010 (1953), renumbered as ORS 19.205 (1997).2

The facts in Walker are similar to those here. The plaintiff in that case obtained a favorable judgment after the defendants failed to appear for trial. The defendants sought to have the judgment set aside on the ground of excusable neglect under the predecessor to ORCP 71 B, former ORS 18.160 (1953), repealed by Or Laws 1981, ch 898, § 53. They [185]*185asserted that, after they had answered the plaintiffs complaint, they had moved to California and their attorney had neglected to inform them of the trial date. The trial court agreed that the judgment had been entered as a result of excusable neglect and granted the defendants’ motion to vacate the judgment. The plaintiff appealed.

The Supreme Court held that the order was not appealable. Although the court did not discuss the individual provisions of former ORS 19.010, it implicitly determined that the order was neither “a final order affecting a substantial right” under paragraph (c) nor one “setting aside a judgment and granting a new trial” under paragraph (d). The court explained that “[i]t is the established rule that where the court acts under [the predecessor to ORCP 71] and sets aside its former judgment the order is not final and therefore is not appealable.” Walker, 206 Or at 324; see also Carmichael v. Carmichael, 101 Or 172, 181, 199 P 385 (1921) (order setting aside dissolution judgment under predecessor to ORCP 71 B not final and therefore not appealable); Wershow v. McVeety Machinery, 263 Or 97, 101, 500 P2d 696 (1972) (order setting aside a default judgment not appealable); Lorentz Bruun Company, Inc. v. Execulodge Corp., 313 Or 600, 605-06, 835 P2d 901 (1992) (order granting ORCP 71 B(1)(a) motion to set aside judgment entered ex parte on a confession of judgment not appealable).

The court went on to hold that an order granting relief from judgment under that section is not appealable regardless of whether the former judgment was entered as a result of default or after a party failed to appear at a trial on the merits. Walker, 206 Or at 325. We understand the Supreme Court’s discussion of that point to hold that the order was not appealable as either a “final order affecting a substantial right” or as an order “setting aside a judgment and granting a new trial.” See Donahoo v. Zacharias, 85 Or App 551, 552, 737 P2d 1250 (1987) (although Supreme Court’s decision in Wershow did not discuss each provision of former ORS 19.010, the language of the opinion indicated that an order setting aside a default judgment is not appeal-able as either a “final order affecting a substantial right” or as an order “setting aside a judgment and granting a new trial”).

[186]*186The order at issue here is not materially distinguishable from the order in Walker; it set aside the former judgment entered after wife failed to appear at a trial on the merits. It is therefore not appealable under any provision of ORS 19.205 (2001).

Husband does not contend that an order granting an ORCP 71 B(1)(a) motion is appealable. Instead, he asserts that wife’s motion — and the order granting it — was, in effect, made under ORCP 64, and is therefore appealable under ORS 19.205(2)(d) (2001) as an order “setting aside a judgment and granting a new trial.”3 In support of his argument, he relies on Carter v. U. S. National Bank, 304 Or 538, 747 P2d 980 (1987), State ex rel State Farm Mutual Auto. Ins. Co. v. Olsen, 285 Or 179, 590 P2d 231 (1979), Cooley v. Roman, 286 Or 807, 596 P2d 565 (1979), and Employee Benefits Ins. v. Grill, 300 Or 587, 715 P2d 491 (1986). Husband asserts that those cases stand for the proposition that a motion, even if appropriately made pursuant to ORCP 71, should nevertheless be construed as an ORCP 64 motion if the motion seeks to have the court reconsider any issue of fact. We do not share husband’s understanding of those cases.

In the first three cases, the motions at issue were motions “to reconsider” and “set aside” summary judgments. The Supreme Court grappled with how to treat those motions because a “motion to reconsider” appears neither in the Oregon Rules of Civil Procedure nor in any other Oregon statute. See Carter, 304 Or at 546 (Peterson, C. J., concurring) (suggesting that such a motion is better denominated as a “motion asking for trouble”). Having no other identifiable legal pigeonhole in which to place the motions, the Supreme Court concluded that the motions were properly treated as motions for a new trial where they conformed to the requirements of ORCP 64.

In the fourth case, Employee Benefits Ins., the Supreme Court relied on Cooley in holding that a motion to set aside a summary judgment was properly treated as a motion for a new trial, even though the motion cited ORCP [187]*18771. Although the court’s reasoning was not explicit in its short memorandum opinion, it apparently determined that the substance of the motion — which was based on newly discovered evidence, a ground for a new trial motion under ORCP 64 — was identical to the substance of the motion in Cooley and was therefore properly treated as a motion for a new trial.

Such is not the case here. In this case, there is no need for us to search for a legal pigeonhole in which to place the motion because the motion here was, in both form and substance, an ORCP 71 B(l)(a) motion. Unlike the motions in those other cases, the motion here did not fit the criteria for an ORCP 64 motion for a new trial; the motion here was based on the ground of excusable neglect, which is a ground for relief under ORCP 71 B(l)(a) but not under ORCP 64. The substance of the motion therefore fell under ORCP 71B.

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Cite This Page — Counsel Stack

Bluebook (online)
120 P.3d 1245, 202 Or. App. 182, 2005 Ore. App. LEXIS 1318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-housley-orctapp-2005.