Rowland v. Kingman

884 P.2d 561, 131 Or. App. 204, 1994 Ore. App. LEXIS 1590
CourtCourt of Appeals of Oregon
DecidedNovember 2, 1994
Docket9208-66808; CA A80770
StatusPublished

This text of 884 P.2d 561 (Rowland v. Kingman) 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
Rowland v. Kingman, 884 P.2d 561, 131 Or. App. 204, 1994 Ore. App. LEXIS 1590 (Or. Ct. App. 1994).

Opinion

LANDAU, J.

Mother appeals from a judgment on the pleadings, ORCP 2 IB, in favor of defendants, who are father and his Oregon attorneys, on mother’s motion for civil remedial sanctions for contempt. ORS 33.015 et seq. We affirm in part and reverse in part.

In reviewing the entry of judgment on the pleadings, we assume the truth of the allegations in the pleadings. Brown v. Insurance Company of North America, 93 Or App 355, 357, 762 P2d 330 (1988), rev den 307 Or 303 (1989). Mother and father were divorced by a dissolution judgment of the Maine Superior Court. The judgment awarded “shared parental rights and responsibilities” for the two children, with mother having primary physical custody. Following the divorce, mother lived in Yarmouth, Maine, and father lived approximately 50 miles away.

Mother married an Oregon resident. A dispute then arose as to the physical custody of the children, and father moved for a modification of the dissolution judgment concerning child custody and visitation. On August 17, 1992, after a three-day evidentiary hearing, the Maine court granted father’s motion to modify the judgment. The court’s order provides, in part:

“If [mother] relocates to the state of Oregon, it is in the best interests of [the children] that they primarily reside with [father] in Yarmouth, Maine.
“Therefore, it is ORDERED that the divorce judgment dated May 16,1991, shall be amended to change the primary physical residence of the children to [father] if [mother] relocates to Oregon, and on condition that [father] reside in Yarmouth, Maine. It is further ORDERED that primary physical residence for the children shall remain with [mother] if she does not relocate to Oregon, or if [father] does not move to Yarmouth as soon as is reasonably possible after mother’s relocation.
“Further matters, including rights of parental contact, will be addressed in a subsequent order. That order will include a requirement that changes be made in the transportation of the children on Wednesday nights and Thursday mornings if [mother] remains in Yarmouth, Maine.
[207]*207“Prior to the issuance of the subsequent order, the parties will he given the opportunity, among others, to submit further arguments, and proposed agreements, if any, concerning parental contact.” (Emphasis in original.)

One week later, without notice to father, mother flew with the children to her husband’s Oregon residence. On August 25,1992, mother’s husband informed father by telephone that the children now resided with mother in Oregon.

Father immediately moved to Yarmouth. On August 27,1992, at approximately 8:30 a.m., father appeared ex parte before the Maine court to request a temporary restraining order and initiate contempt proceedings against mother. The Maine court found mother in contempt for removing the children to Oregon, in violation of its August 17,1992 order; immediately changed physical custody of the children to father; and ordered mother to turn the children over to father for a return to Maine. The court issued a writ of habeas corpus and ordered mother to pay father’s travel expenses and legal fees. Father then flew to Oregon.

In Oregon, at approximately 1:30 p.m. on August 27, mother’s attorney filed certified copies of the original dissolution judgment and the Maine court’s August 17,1992, order with the Multnomah County Circuit Court. Mother’s attorney then appeared ex parte and obtained a ‘ ‘temporary protective order of restraint,” which provided:

“UNTIL CUSTODY OR VISITATION IS DETERMINED BY MEDIATION OR UNTIL FURTHER ORDER OF THE COURT, each parent is restrained and enjoined from interfering with the children’s usual place of residence, from interfering with the present placement and daily schedule of the children, from hiding or secreting the children from either parent, from interfering with each parent’s usual contact and visitation with the children, from leaving the State of Oregon with the children without written permission of the other parent or the permission of the Court, or from in any manner disturbing the current schedule and daily routine of the children.”

The order listed mother’s Oregon address as the children’s usual place of residence.

Later that afternoon, father and his Oregon attorney appeared ex parte in Clackamas County, Oregon, and moved [208]*208for a writ of assistance to obtain possession of the children. The writ issued, and father arranged for the police to serve the order at mother’s home. Mother, father and their attorneys advised each other of the conflicting orders. Father told the police to proceed to enforce his writ of assistance. They did, and father returned with the children to Maine.

Mother filed a motion for remedial sanctions for contempt of the Multnomah County Circuit Court’s temporary protective order of restraint. Father and his counsel moved for judgment on the pleadings. The trial court granted the motion, finding that the temporary protective order of restraint was void for lack of subject matter jurisdiction. According to the trial court, because mother’s motion for a temporary protective order of restraint was effectively a request to modify a custody determination of another state court, she was required to comply with a number of jurisdictional requirements of the Uniform Child Custody Jurisdiction Act (UCCJA). Because mother had failed to comply with those jurisdictional requirements, the court concluded that the temporary protective order of restraint was void and could not provide the basis for her contempt motions. The trial court then awarded father’s counsel costs and attorney fees.

Mother first assigns error to the trial court’s entry of judgment on the pleadings in favor of father and his attorneys. A judgment on the pleadings is proper when the allegations, taken together, affirmatively show that the plaintiff has no cause of action or that the defendant has a complete defense. Beason v. Harcleroad, 105 Or App 376, 379, 805 P2d 700 (1991).

The parties agree that if the court had jurisdiction over the subject matter, and its order was not complied with, then the court may hold the noncomplying party in contempt, even if the original order was in error. State ex rel Mix v. Newland, 277 Or 191, 200, 560 P2d 255 (1977). However, if the court lacked subject matter jurisdiction, then its order was void and could not support a subsequent motion for contempt against the noncomplying party. State v. Crenshaw, 307 Or 160, 165-66, 764 P2d 1372 (1988).

[209]*209Mother argues that the Multnomah County Circuit Court, which issued the temporary protective order of restraint, had subject matter jurisdiction to issue that order. According to mother, the court acted pursuant to. ORS 109.850, which she characterizes as authorizing Oregon courts to enforce a foreign custody decree merely upon the filing of that decree. In support of her argument, mother relies on language in ORS 109.850 that provides that a properly filed foreign custody decree

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

Related

State v. Langley
861 P.2d 1012 (Oregon Supreme Court, 1993)
State v. Crenshaw
764 P.2d 1372 (Oregon Supreme Court, 1988)
State v. Langley
839 P.2d 692 (Oregon Supreme Court, 1992)
State Ex Rel. Mix v. Newland
560 P.2d 255 (Oregon Supreme Court, 1977)
Portland General Electric Co. v. Bureau of Labor & Industries
859 P.2d 1143 (Oregon Supreme Court, 1993)
Brown v. Insurance Co. of North America
762 P.2d 330 (Court of Appeals of Oregon, 1988)
Beason v. Harcleroad
805 P.2d 700 (Court of Appeals of Oregon, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
884 P.2d 561, 131 Or. App. 204, 1994 Ore. App. LEXIS 1590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowland-v-kingman-orctapp-1994.