Marriage of Schweigert v. Schweigert

2015 OK 20, 348 P.3d 696, 2015 Okla. LEXIS 28, 2015 WL 1651117
CourtSupreme Court of Oklahoma
DecidedApril 14, 2015
Docket112,483
StatusPublished
Cited by25 cases

This text of 2015 OK 20 (Marriage of Schweigert v. Schweigert) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of Schweigert v. Schweigert, 2015 OK 20, 348 P.3d 696, 2015 Okla. LEXIS 28, 2015 WL 1651117 (Okla. 2015).

Opinions

TAYLOR, J.

1 1 The dispositive question raised for our review is whether a party must file a motion for default and give the adverse party notice under Rule 10 of the Rules for District Courts, 12 0.8.2011, ch. 2, app. (Rule 10), when the adverse party fails to file an answer or an. entry of appearance but physically appears at a hearing. We answer in the affirmative.

I. FACTS AND ALLEGATIONS

T 2 On June 4, 2010, Denise M. Schweigert (Mother) filed a petition for dissolution of her marriage to Tony W. Schweigert (Father) and an application for a temporary order. Mother sought both temporary and permanent custody .of the couple's two children with supervised visitation with Father. On June 15, 2010, Father was personally served at CeeDee's Country Store in Dustin, Oklahoma, with the summons, the petition for dissolution of marriage, the application for a temporary order, and the order for hearing. Father appeared at the hearing on August 9, 2010. However, he did not file an answer or entry of appearance. '

[698]*698T3 On August 8, 2011, one year after the temporary custody hearing, the August 9, 2010 order was filed, giving Mother temporary custody of the children, allowing Father supervised visitation as agreed by the parties, and setting the temporary child support of $288.01 per month. The temporary order acknowledged that the "Respondent, TONY W. SCHWEIGERT, appeared] in person and Pro se" at the hearing. The record fails to show that Father saw the temporary order or had a chanee to contest its contents before it was filed. The record also fails to show that a copy of the temporary order was ever sent to Father.

T4 In the meantime on August 2, 2011, Mother's attorney tendered a "minute order" setting the matter "for default on" August 24, 2011. Mother admits that she did not give Father notice of the hearing on taking default judgment. The divorcee decree was filed on the same day as the hearing. It stated that "Respondent, TONY W. SCHWEIGERT, appears not and is in default .after having been properly served on June 15, 2010." Mother did not file a motion for default, and neither the decree nor any other document in the record says anything about any attempt to serve Father with notice of the hearing on the default judgment or whether his address was unknown. Nonetheless, Mother was granted a divorce, custody of the minor children with supervised visitation with Father, and child support of $283.01. Further, neither the transcript of the hearing for a temporary order nor the transcript of the August 24, 2011 hearing was designated for inclusion in the record, and the Court cannot ascertain what occurred during either hearing.

T5 On July 1, 2018, Father filed a motion to vacate the divorce decree based on fraud; and, on August 5, 2018, he filed an amended motion to vacate based on fraud and lack of due process. He contended that Mother defrauded him into not filing an answer and that he did not receive notice of the default hearing as required by Rule 10. Mother's response to the amended motion to vacate, like her response to the original motion to vacate, was in the form of an answer to a petition merely admitting or denying the allegations in the amended motion to vacate and was void of legal argument. At the hearing on the motion to vacate the default judgment, the district court stated: "I don't think that just appearing in court triggers making an appearance." On December 17, 2013, a district court order was filed stating the matter came before the judge on October 22, 2013, denying the motion to vacate and finding "Respondent failed to meet Rule 10 requirement of entry pursuant to 12 O.S. § 2005.2, and therefore Petitioner was not required to provide notice of default hearing to Respondent." Respondent appealed the denial of the motion to vacate, and the Court of Civil Appeals affirmed the judgment. This Court granted the petition for writ of certiorari.

II. STANDARD OF REVIEW

16 This Court reviews a district court's order vacating or refusing to vacate a judgment for abuse of discretion. Ferguson Enters, Inc. v. H. Webb Enters., Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482. Considerations in our review of an order vacating or refusing to vacate a default are: (1) the rule that default judgments are disfavored, (2) the decision to vacate a default judgment should be exercised so as to promote justice, and (8) refusal to vacate a default judgment requires a stronger showing of abuse of discretion than an order vacating a default judgment. Id. We are also mindful here that the default judgment impacted a fundamental right-a parent's right to the companionship, care, custody, and management of his child. Barber v. Barber, 2008 OK 52, ¶ 9, 77 P.3d 576, 580.

17 Although this Court reviews a district court's denial of a motion to vacate for abuse of discretion, the order denying a motion to vacate, like a motion for a new trial, will be reversed if the district court erred with respect to an unmixed question of law. Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, ¶ 5, 46 P.3d 698, 701. The district court's construction and application of Rule 10 to the undisputed facts before it presents a pure question of law subject to de novo review. Id.

[699]*699III. ANALYSIS

T8 A district court's judgment shall be vacated and a new trial granted upon an aggrieved party's application for, among other things, an irregularity in the proceedings or court's order affecting the party's substantial rights. 12 0.8.2011, §§ 651(1), 1031(8). When Father asserts that Mother failed to file a motion for default judgment and give him notice as required by Rule 10, he is asserting an irregularity in the proceedings. See Knell v. Burnes, 1982 OK 35, ¶ 5, 645 P.2d 471, 473 ("The rendition of a premature judgment is an irregularity which may be vacated under § 1081(8) if the rights of the party have been prejudiced because of a failure to adhere to the established rules or mode of procedure in the orderly administration of justice.").1

19 Mother argues she was excused from giving Father notice of the default hearing because his address was unknown and he had not filed an entry of appearance. Relying on Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482, Mother asserts that hardships, specifically the parties' subsequent remarriages, warrant the denial of the motion to vacate. The record on appeal does not show that Mother asserted hardship as a reason for denying the motion to vacate in the trial court. With few exceptions, jurisdiction being one, a party who fails to assert a defense in the trial court is foreclosed from asserting it for the first time on appeal. Okla. Dep't of Sec. v. Wilcox, 2011 OK 82, ¶ 17, 267 P.3d 106, 110. Further, Mother relies on a transcript which was not designated for inclusion in the record on appeal for the proposition that Father's address was unknown.2 It was Mother's burden to produce a record supporting this allegation and the allegation that the parties have both remarried. Rule 1.28, Rules of the Supreme Court, 12 00.98.2011, ch. 15, app. 1; Phillips v. Hedges, 2005 OK 77, ¶ 15, 124 P.3d 227, 232. Because Mother failed in this regard, this Court will not consider Mother's argument as to these two assertions.

T10 Turning now to Father's argument, we consider the meaning of the phrase "made an appearance" in Rule 10 which provides, in pertinent part: 3

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Bluebook (online)
2015 OK 20, 348 P.3d 696, 2015 Okla. LEXIS 28, 2015 WL 1651117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-schweigert-v-schweigert-okla-2015.