In re the Marriage of Weaver

851 P.2d 629, 119 Or. App. 478, 1993 Ore. App. LEXIS 601
CourtCourt of Appeals of Oregon
DecidedApril 21, 1993
Docket15-90-07502; CA A68718
StatusPublished
Cited by10 cases

This text of 851 P.2d 629 (In re the Marriage of Weaver) 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 Weaver, 851 P.2d 629, 119 Or. App. 478, 1993 Ore. App. LEXIS 601 (Or. Ct. App. 1993).

Opinion

DURHAM, J.

Wife appeals from an order denying her motion to set aside the judgment of dissolution of her marriage, which was entered after her failure to appear for trial. We affirm.

The parties separated in July, 1990, when wife moved with their three children from Oregon to California. Husband filed a petition for dissolution in Lane County on August 23,1990. Wife was served on September 17,1990, at her mother’s residence, where she was living in California. She did not file a response, and, on October 19, husband filed notice of his intent to apply for a judgment by default. That notice was also served on wife at her mother’s address. On November 16, wife filed a motion to dismiss husband’s petition pursuant to ORCP 21, arguing that California was the proper forum under the Uniform Child Custody Jurisdiction Act (UCCJA) to decide the child custody issue. A hearing was held on the motion on December 17. Both parties and their attorneys were present. The trial court held that Oregon was the proper forum for determining custody and denied wife’s motion. It also granted wife temporary custody of the children subject to husband’s visitation.

Wife filed an appearance on December 31, 1990, and moved back to Oregon. The trial court granted husband an order restraining wife from removing the children from Oregon. The restraining order was served on wife’s attorney, and wife had actual knowledge of the order. In January, 1991, wife took the children back to California and rented an apartment near her mother’s home. Wife’s attorney moved to withdraw from the case on January 4,1991, because wife had dismissed him. Although the motion failed to state wife’s address, as required by UTCR 3.140(1),1 the trial court granted it. Trial was set for January 30,1991. On January 10, 1991, a trial notice was sent by certified mail to wife at her mother’s address. It was returned as “no forwarding order on file, unable to forward.” Wife acknowledged, however, that her mother had told her that a certified letter had come for [481]*481her. On January 18, husband also mailed to wife, at her mother’s address, a copy of a letter to the trial court, which gave the trial date.

A trial was held on January 30. Wife did not appear. The trial court took testimony and heard argument by husband’s counsel. The court found that wife had violated the restraining order and granted the judgment of dissolution, which gave custody of the children to husband and prohibited wife from visiting them. The judgment was entered on February 4,1991, and on February 11, wife was served with a copy of the judgment. On February 25,1991, wife filed a motion to set aside the judgment, arguing that she was entitled to relief under ORCP 71 and ORCP 69, because she was not served with either notice of the trial date or notice of intent to seek an order of default. The trial court denied wife’s motion.

Wife first assigns error to the trial court’s determination that she was not entitled to relief under ORCP 71B(1) (a). She argues that her inadvertence or excusable neglect caused her not to receive notice of the trial date. We review the court’s decision for abuse of discretion. Pacheco v. Blatchford, 91 Or App 390, 392, 754 P2d 1219, rev den 306 Or 660 (1988). The trial court found, and we agree, that wife knew or should have known that the dissolution proceeding was pending and that she was obligated to advise the court of her mailing address, but failed to do so. A copy of the letter stating the trial date was mailed to her mother’s address, the last address that she had provided to the court. Wife was in close communication with her mother, knew of the attempted delivery of the certified letter and still failed to act. We conclude that the trial court did not abuse its discretion in deciding that wife was not entitled to relief under ORCP 71B(l)(a) for inadvertence or excusable neglect.

Wife also argues, relying on Van Dyke v. Varsity Club, Inc., 103 Or App 99, 103, 796 P2d 382, rev den 310 Or 476 (1990), and ORCP 69A, that we should set aside the judgment under ORCP 71B(l)(d), because she did not receive 10 days’ notice of husband’s intent to apply for an order of default. ORCP 69A provides:

“When a party against whom a judgment for affirmative relief is sought has heen served with summons pursuant to Rule 7 or is otherwise subject to the jurisdiction of the court [482]*482and has failed to plead or otherwise defend as provided in these rules, the party seeking affirmative relief may apply for an order of default. If the party against whom an order of default is sought has filed an appearance in the action, or has provided written notice of intent to file an appearance to the party seeking an order of default, then the party against whom an order of default is sought shall be served with written notice of the application for an order of default at least 10 days, unless shortened by the court, prior to entry of the order of default. These facts, along with the fact that the party against whom the order of default is sought has failed to plead or otherwise defend as provided in these rules, shall be made to appear by affidavit or otherwise, and upon such a showing, the clerk or the court shall enter the order of default.”

Van Dyke held that, under an earlier version of ORCP 69A,2 a judgment entered against a defendant who had appeared by filing numerous motions but failed to appear for trial was a judgment by default and was void because the party who sought it had failed to give 10 days’ notice of intent to apply for a judgment. The court reached that result by construing the phrase “failed to * * * otherwise defend” in ORCP 69A to apply to a party’s nonappearance for trial.

Before Van Dyke was decided, ORCP 69A was amended to require 10 days’ notice of an intent to apply for an order of default, not for a judgment by default. This case concerns the amended rule. The issue is whether we should follow the rationale of Van Dyke and construe the amended rule to apply to a party’s failure to appear for trial.

In construing the ORCP, we follow ordinary principles of statutory construction to discern the drafters’ intent. We first analyze the text and context of ORCP 69A. See Boone v. Wright, 314 Or 135, 138, 836 P2d 727 (1992). In Columbia Steel Castings Co. v. City of Portland, 314 Or 424, 430, 840 [483]*483P2d 71 (1992), the court stated a rule of statutory construction that applies equally to the construction of ORCP:

“Generally, andin the absence of some specific indication of a contrary intent, terms are read consistently throughout a statute. See Knapp v. City of North Bend, 304 Or 34, 41, 741 P2d 505 (1987) (‘Absent any indication to the contrary, we assume that statutory terms have the same meaning throughout a statute’).”

The key phrase in ORCP 69A, “otherwise defend as provided in these rules,” does not demonstrate that the drafters regarded a failure to appear for trial as a default. As we noted in Van Dyke:

“[T]he phrase ‘otherwise defend’ in ORCP 69 logically could be read not to include a situation when a litigant fails, after pleading, to appear and defend at trial * * *.” 103 Or App at 103.

Except for matters involving compulsory attendance procedures that are not relevant here, see, e.g., ORCP 8 (process), nothing in ORCP requires a party to defend by appearing for trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lacey v. Saunders
466 P.3d 1063 (Court of Appeals of Oregon, 2020)
In re the Marriage of Owens
49 P.3d 111 (Court of Appeals of Oregon, 2002)
In re the Marriage of Campbell
948 P.2d 765 (Court of Appeals of Oregon, 1997)
State Ex Rel. Johnson v. Bail
915 P.2d 439 (Court of Appeals of Oregon, 1996)
In re the Marriage of Lovette
913 P.2d 333 (Court of Appeals of Oregon, 1996)
Paschall v. Crisp
910 P.2d 407 (Court of Appeals of Oregon, 1996)
In re the Marriage of Barleen
860 P.2d 298 (Court of Appeals of Oregon, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
851 P.2d 629, 119 Or. App. 478, 1993 Ore. App. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-weaver-orctapp-1993.