McKinney v. McKinney

120 P.3d 921, 201 Or. App. 721
CourtCourt of Appeals of Oregon
DecidedOctober 5, 2005
Docket01-30172; A125509; 01-30172; A124813; 01-30176; A124813
StatusPublished
Cited by3 cases

This text of 120 P.3d 921 (McKinney v. McKinney) 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
McKinney v. McKinney, 120 P.3d 921, 201 Or. App. 721 (Or. Ct. App. 2005).

Opinion

BREWER, C. J.

Wife filed a notice of appeal from a judgment of dissolution of marriage. Husband moved to dismiss wife’s appeal for lack of jurisdiction on the ground that wife failed to timely serve him with a copy of the notice of appeal. We conclude that wife did not timely serve husband, grant husband’s motion, and dismiss the appeal for lack of jurisdiction.

We begin with a brief summary of the principles that govern the filing and service of notices of appeal. ORS 19.255(1) provides, in part, that “a notice of appeal must be served and filed within 30 days after the judgment appealed from is entered in the register.” Timely service of the notice of appeal on the adverse party or parties is jurisdictional. ORS 19.270(2)(a). ORS 19.500 governs, in part, the service of “papers” in connection with appeals. That statute provides, in part:

“Except as otherwise provided in this chapter, when any provision of this chapter requires that a paper be served and filed, the paper shall be served in the manner provided in ORCP 9 B on all other parties who have appeared in the action, suit or proceeding * *

ORCP 9 B authorizes service by “delivery,” by mail, and by facsimile transmission:

“Service upon the attorney or upon a party shall be made by delivering a copy to such attorney or party, by mailing it to such attorneys or party’s last known address or, if the party is represented by an attorney, by telephonic facsimile communication device as provided in section F of this rule. Delivery of a copy within this rule means: handing it to the person to be served; or leaving it at such person’s office with such person’s clerk or person apparently in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at such person’s dwelling house or usual place of abode with some person over 14 years of age then residing therein. * * * Service by mail is complete upon mailing.”

Finally, ORS 19.260(2) provides:

“Service of notice of appeal on a party, transcript coordinator or the trial court administrator, or service of a [725]*725petition for judicial review on a party or administrative agency may be accomplished by first class, registered or certified mail. The date of serving such notice shall be the date of mailing. Proof of mailing shall be certified by the party filing the notice and filed thereafter with the court to which the appeal is taken.”

If a respondent does not timely receive the service copy of a notice of appeal, the appellant must demonstrate its proper mailing to establish adequate service. Murrieta v. Brewster, 328 Or 434, 438, 981 P2d 330 (1999); Mullens v. L. Q. Development, 312 Or 599, 607, 825 P2d 1376 (1992). The court resolves any factual issues necessary to the legal determination whether the notice of appeal was timely served. Id. at 608.

With those principles in mind, we find the following facts. The trial court administrator entered a general judgment of dissolution on April 20, 2004; thus, wife had until May 20 to serve the notice of appeal. Wife mailed the original notice of appeal to the State Court Administrator and mailed husband’s service copy on the same day, May 19, 2004. The envelope containing the service copy of the notice of appeal was stamped “PARCEL POST.” The State Court Administrator received the original notice of appeal on May 20,2004.

Wife asserts, and husband does not dispute, that she mailed husband’s service copy of the notice of appeal at the same post office facility where husband’s post office box is located. Wife stated in an affidavit that “[t]he distance between the counter at which she purchased the postage and gave the letter to the clerk was less than twenty feet from the location of [husband’s] post office box.” However, the address on the envelope in which wife mailed the service copy contained the following two defects: (1) Husband’s post office box number is 687, but wife transposed the last two digits on the letter and wrote “PO Box 678” and (2) the zip code for post office boxes located in that facility is 97339, but wife wrote “97333.” In an affidavit in support of wife’s position, the United States Postal Service customer service department supervisor for the postal facility at which wife mailed the envelope explained the effect of those two errors:

[726]*726“Corvallis has three zip codes, 97330, 97333, and 97339. Post office boxes located at the post office are the only addresses with the 97339 zip code. It is common for people to use the incorrect zip code because of this situation. We routinely reroute mail addressed to the incorrect zip code for the post office boxes. It is reasonable for someone to expect that we would do this as part of our job delivering the mail.
“Each post office box in our branch has a number and the customer name is located at the opening of the box. This has been done to alleviate problems with delivering the mail. A clerk is assigned to each section of boxes and the clerk checks the name on the box against the name on the item of mail. Post office box 678 and 687 are in the same section. A transposed post office box number is the type of error that it would be reasonable to expect a clerk to catch and correct.”

Husband does not deny that the service copy of the notice of appeal was deposited in his post office box on either May 19 or 20. Instead, he states that he actually received the service copy “[Howards the end of May, 2004.” In light of the postal service representative’s statement and, because the postal service transmitted the original notice of appeal from Corvallis to Salem in one day’s time, it appears that, notwithstanding the errors in the address on the service envelope, the postal service deposited the service copy in husband’s post office box on either May 19 or May 20. However, there is no evidence that husband physically received possession of the service copy on or before May 20.

Husband asserts that wife’s appeal must be dismissed because parcel post, the manner in which she served the notice of appeal, was not reasonably calculated to apprise him of the pendency of the appeal. Husband relies on this court’s decision in Harris and Harris, 104 Or App 209, 799 P2d 699 (1990), rev den, 311 Or 166 (1991). In Harris, we construed former ORS 19.028(2) (1989), renumbered as ORS 19.260(2) (1997).1 There, the service copy of the notice of appeal was addressed and mailed, presumably by first class mail, to the post office box for the trial court administrator, rather than to the respondent’s attorney. After the time for [727]

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Cite This Page — Counsel Stack

Bluebook (online)
120 P.3d 921, 201 Or. App. 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinney-v-mckinney-orctapp-2005.