[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Suit by Cecil E. Nichols against Margaret Nichols for divorce. A default decree was entered for plaintiff. From orders modifying the decree by awarding custody of the parties' minor children to plaintiff, denying separate motions to vacate the order, and refusing to vacate the original decree, and to permit defendant to file answer and cross-complaint, defendant appeals, and plaintiff moves to dismiss the appeal.
MOTION ALLOWED IN PART. REVERSED.
This is a motion to dismiss an appeal.
On August 13, 1942, the court entered a default decree granting a divorce to the plaintiff-respondent Cecil E. Nichols from the defendant-appellant Margaret Nichols and awarding to the appellant, in accordance with the prayer of the complaint, the custody of the three minor children of the parties, with right of visitation to the respondent. On March 29, 1943, respondent filed a motion to modify the decree by awarding him the custody of the children, and on May 26, 1943, after a hearing at which oral testimony was taken, the court entered an order allowing the motion. On June 13, 1943, the appellant filed a motion "for an order vacating and setting aside the original decree herein and the order modifying said decree and permitting
the defendant to file her answer and cross-complaint in this cause." This motion recites that it is "based upon the affidavit of the defendant heretofore filed herein, all of the files and records herein, and upon oral testimony to be presented by the defendant at the hearing of this motion." On July 28, 1943, the appellant filed a motion "for an order to set aside the modified decree heretofore made and entered on the 26th day of May, 1943, for the reason that the modification so made is contrary to law as shown by the record and the memorandum of opinion made and filed in this cause by the court, and that the court committed an error of law in so modifying the original decree heretofore made and entered in this cause." On August 19, 1943, the court entered two orders, one denying the motion, filed June 13, 1943, to vacate the original decree and the order modifying said decree, and the other denying the motion, filed July 28, 1943, to vacate the modified decree on the ground that it was contrary to law. On August 19, 1943, the appellant caused to be served upon counsel for the respondent and filed with the clerk of the court a notice of appeal which reads as follows:
"YOU AND EACH OF YOU will please take notice that the defendant MARGARET NICHOLS does hereby appeal unto the Supreme Court of the State of Oregon, from that certain Order Modifying Decree and the whole thereof, and each and every part thereof, made and entered in the above entitled court and cause, on or about the 26th day of May, 1943, and also does hereby appeal unto the Supreme Court of the State of Oregon, from that certain order and the whole thereof, and each and every part thereof, made and entered in the above entitled court and cause, on or about the 19 day of August, 1943, denying defendant's Motion to Set
Aside the Modified Decree; and also does hereby appeal unto the Supreme Court of the State of Oregon from that certain order and the whole and each and every part thereof, made and entered in the above entitled court and cause on or about the 19 day of August, 1943, denying defendant's Motion to Set Aside and Vacate the Original Decree herein and the Order Modifying said Decree, and permitting the defendant to file her Answer and Cross-Complaint in this cause."
It thus appears that an appeal has been attempted to be taken from four different orders: an order modifying the decree of divorce by awarding custody of the minor children to the respondent; two orders denying separate motions to vacate that order; and an order refusing to vacate the original decree.
An order granting or refusing to grant a motion to modify a decree respecting the custody of children of divorced parents, is a final order, and, therefore, appealable. Sheedy v. Sheedy,122 Or. 221, 222, 258 P. 184; McKissick v. McKissick, 93 Or. 644,647, 174 P. 721, 184 P. 272.
An order modifying a decree for the custody of children is final and conclusive so long as the conditions then existing remain unchanged. Wells v. Wells-Crawford, 120 Or. 557, 563,251 P. 263, 251 P. 907; Merges v. Merges, 94 Or. 246, 253,186 P. 36; Bestel v. Bestel, 153 Or. 100, 107, 44 P.2d 1078,53 P.2d 525.
Hence, the order of May 26, 1943, granting the respondent's motion to award him the custody of the children was an appealable order, but, as the notice of appeal was not served or filed until August 19, 1943, more than sixty days after the entry of the order sought to be appealed from, this court is without jurisdiction to review that order.
The order of August 19, 1943, denying the appellant's motion filed July 28, 1943, to vacate the modifying order of May 26, 1943, is clearly not appealable, because that motion was on its face merely an effort to induce the court to change the May 26th order on the ground that it was erroneous. The motion did not purport to call for a new adjudication based on changed conditions, but it was in the nature of a petition for a rehearing.
There remains for consideration the order or orders of August 19, 1943, denying the appellant's motion filed June 13, 1943, to vacate the original decree as well as the modifying order of May 26, 1943, and to permit the appellant to file her answer and cross-complaint in this cause. This motion is said by counsel for the appellant to invoke the remedial provisions of § 1-1007, O.C.L.A., under which the court may "in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect." The motion does not, in terms, refer to any of the grounds for relief from a judgment enumerated in the statute. It is accompanied, however, by the tender of an answer and cross-complaint to the respondent's complaint for a divorce, and is supported by affidavits and the prior records and proceedings in the case, from some of which it may fairly be inferred that the basis of the motion is fraud of the respondent which induced the appellant to allow a default decree of divorce to be entered against her. There is a showing that while the divorce suit was pending the respondent agreed with the appellant that she should have the permanent custody of their
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Suit by Cecil E. Nichols against Margaret Nichols for divorce. A default decree was entered for plaintiff. From orders modifying the decree by awarding custody of the parties' minor children to plaintiff, denying separate motions to vacate the order, and refusing to vacate the original decree, and to permit defendant to file answer and cross-complaint, defendant appeals, and plaintiff moves to dismiss the appeal.
MOTION ALLOWED IN PART. REVERSED.
This is a motion to dismiss an appeal.
On August 13, 1942, the court entered a default decree granting a divorce to the plaintiff-respondent Cecil E. Nichols from the defendant-appellant Margaret Nichols and awarding to the appellant, in accordance with the prayer of the complaint, the custody of the three minor children of the parties, with right of visitation to the respondent. On March 29, 1943, respondent filed a motion to modify the decree by awarding him the custody of the children, and on May 26, 1943, after a hearing at which oral testimony was taken, the court entered an order allowing the motion. On June 13, 1943, the appellant filed a motion "for an order vacating and setting aside the original decree herein and the order modifying said decree and permitting
the defendant to file her answer and cross-complaint in this cause." This motion recites that it is "based upon the affidavit of the defendant heretofore filed herein, all of the files and records herein, and upon oral testimony to be presented by the defendant at the hearing of this motion." On July 28, 1943, the appellant filed a motion "for an order to set aside the modified decree heretofore made and entered on the 26th day of May, 1943, for the reason that the modification so made is contrary to law as shown by the record and the memorandum of opinion made and filed in this cause by the court, and that the court committed an error of law in so modifying the original decree heretofore made and entered in this cause." On August 19, 1943, the court entered two orders, one denying the motion, filed June 13, 1943, to vacate the original decree and the order modifying said decree, and the other denying the motion, filed July 28, 1943, to vacate the modified decree on the ground that it was contrary to law. On August 19, 1943, the appellant caused to be served upon counsel for the respondent and filed with the clerk of the court a notice of appeal which reads as follows:
"YOU AND EACH OF YOU will please take notice that the defendant MARGARET NICHOLS does hereby appeal unto the Supreme Court of the State of Oregon, from that certain Order Modifying Decree and the whole thereof, and each and every part thereof, made and entered in the above entitled court and cause, on or about the 26th day of May, 1943, and also does hereby appeal unto the Supreme Court of the State of Oregon, from that certain order and the whole thereof, and each and every part thereof, made and entered in the above entitled court and cause, on or about the 19 day of August, 1943, denying defendant's Motion to Set
Aside the Modified Decree; and also does hereby appeal unto the Supreme Court of the State of Oregon from that certain order and the whole and each and every part thereof, made and entered in the above entitled court and cause on or about the 19 day of August, 1943, denying defendant's Motion to Set Aside and Vacate the Original Decree herein and the Order Modifying said Decree, and permitting the defendant to file her Answer and Cross-Complaint in this cause."
It thus appears that an appeal has been attempted to be taken from four different orders: an order modifying the decree of divorce by awarding custody of the minor children to the respondent; two orders denying separate motions to vacate that order; and an order refusing to vacate the original decree.
An order granting or refusing to grant a motion to modify a decree respecting the custody of children of divorced parents, is a final order, and, therefore, appealable. Sheedy v. Sheedy,122 Or. 221, 222, 258 P. 184; McKissick v. McKissick, 93 Or. 644,647, 174 P. 721, 184 P. 272.
An order modifying a decree for the custody of children is final and conclusive so long as the conditions then existing remain unchanged. Wells v. Wells-Crawford, 120 Or. 557, 563,251 P. 263, 251 P. 907; Merges v. Merges, 94 Or. 246, 253,186 P. 36; Bestel v. Bestel, 153 Or. 100, 107, 44 P.2d 1078,53 P.2d 525.
Hence, the order of May 26, 1943, granting the respondent's motion to award him the custody of the children was an appealable order, but, as the notice of appeal was not served or filed until August 19, 1943, more than sixty days after the entry of the order sought to be appealed from, this court is without jurisdiction to review that order.
The order of August 19, 1943, denying the appellant's motion filed July 28, 1943, to vacate the modifying order of May 26, 1943, is clearly not appealable, because that motion was on its face merely an effort to induce the court to change the May 26th order on the ground that it was erroneous. The motion did not purport to call for a new adjudication based on changed conditions, but it was in the nature of a petition for a rehearing.
There remains for consideration the order or orders of August 19, 1943, denying the appellant's motion filed June 13, 1943, to vacate the original decree as well as the modifying order of May 26, 1943, and to permit the appellant to file her answer and cross-complaint in this cause. This motion is said by counsel for the appellant to invoke the remedial provisions of § 1-1007, O.C.L.A., under which the court may "in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect." The motion does not, in terms, refer to any of the grounds for relief from a judgment enumerated in the statute. It is accompanied, however, by the tender of an answer and cross-complaint to the respondent's complaint for a divorce, and is supported by affidavits and the prior records and proceedings in the case, from some of which it may fairly be inferred that the basis of the motion is fraud of the respondent which induced the appellant to allow a default decree of divorce to be entered against her. There is a showing that while the divorce suit was pending the respondent agreed with the appellant that she should have the permanent custody of their
minor children in the event that a decree of divorce should be granted; that the appellant, in reliance upon this agreement, refrained from contesting the divorce suit; and that at the very time the plaintiff made the agreement he intended, at the first favorable opportunity after the divorce decree should be entered, to apply to the court for a modification of the decree granting him the custody of the children. While fraud is not mentioned as one of the grounds for granting relief under § 1-1007, O.C.L.A., fraud practiced in obtaining a judgment, even though not especially enumerated in the statute "`would generally be available to the injured party on the ground that it had occasioned the rendition of a judgment against him by surprise or mistake, or under circumstances which as to him might well be deemed excusable neglect': 1 Freeman on Judgments, § 111a."Thompson v. Connell, 31 Or. 231, 236, 48 P. 467, 65 Am.St.Rep. 818. It is thus apparent that the appellant has invoked the remedy provided in § 1-1007, O.C.L.A., and, since the denial by the court of relief under that section is an appealable order(Peters v. Dietrich, 145 Or. 589, 27 P.2d 1015), and the notice of appeal from that order was served and filed within the statutory time, we have jurisdiction to determine the single question of whether the circuit court abused its discretion in determining that the decree of divorce was not entered against the appellant through "mistake, inadvertence, surprise, or excusable neglect", within the meaning of those words as used in the statute.
We are of the opinion, however, that the alleged fraud or surprise cannot be said to be the basis of the motion to vacate the modifying order of May 26, 1943, which was combined with the motion to vacate the
original decree. The defendant appeared and contested the plaintiff's motion for a modification of the original decree, and we think, therefore, that there is not even a colorable showing that the motion in question brings the appellant within the provisions of § 1-1007, O.C.L.A., but rather that it is a mere attempt to induce the court to vacate the modifying order without any showing of a change in conditions. The order denying the motion to vacate the modifying order, filed June 13, 1943, is, therefore, not an appealable order.
It results that the motion to dismiss the appeal from the order denying the motion to vacate the original decree is denied, but, with respect to the other orders described in the notice of appeal, the motion is granted.
KELLY, J., did not participate in the foregoing opinion.