Marriage of O'Connor, Matter of

• Decision Date: 07 November 1984
• Citation: 690 P.2d 1095,70 Or.App. 658
• Parties: In the Matter of the MARRIAGE OF Estelle F. O'CONNOR, fka Estelle F. Lerner, Respondent, and Alan J. Lerner, Appellant. S83-1023; CA A30252.
• Court: Oregon Court of Appeals

Page 1095

690 P.2d 1095

70 Or.App. 658

In the Matter of the MARRIAGE OF Estelle F. O'CONNOR, fka

Estelle F. Lerner, Respondent,

and

Alan J. Lerner, Appellant.

S83-1023; CA A30252.

Court of Appeals of Oregon.

Argued and Submitted Sept. 10, 1984.

Decided Nov. 7, 1984.

Robert C. Moberg, Seaside, argued the cause for appellant. With him on the brief was Campbell, Moberg & Canessa, P.C., Seaside.

Robert E. Glasgow, Portland, argued the cause for respondent. With him on the brief was Glasgow & Kelly, P.C., Portland.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Wife initiated this proceeding against nonresident husband to modify a decree of dissolution insofar as it provided for the custody and support of their children. After the parties stipulated to an order modifying custody and visitation rights, the court entered a judgment allowing wife to recover the attorney fees she incurred in this proceeding. Husband appeals the award of attorney fees, claiming that the court lacked personal jurisdiction over him and accordingly could not enter a judgment imposing a monetary obligation. We find that husband appeared generally in this action and submitted himself to the personal jurisdiction of the court and therefore affirm the award of attorney fees.

The marriage was dissolved by a Montana decree which incorporated a separation agreement. One provision of the separation agreement stated:

"Should any action be commenced to enforce, modify or interpret any provision contained herein, the court, as a cost of suit, shall award a reasonable attorney's fee to the successful party."

The decree gave sole custody of the couple's two children to wife. That provision was later modified by a stipulation entered in the Montana court, which gave joint custody to the parties.

Subsequently, wife moved with the children to Oregon. She commenced this proceeding by registering the modified Montana decree in the Circuit Court of Washington County and moved to modify it with respect to custody, visitation, child support and medical bills and sought attorney fees incurred in this action. She also moved for and obtained a temporary restraining order enjoining husband from removing the children from her custody. Husband's Oregon attorney filed an acceptance of service. Husband then moved to dissolve the temporary restraining order on the ground that it did not comply with ORCP and for a writ of assistance to enforce his visitation rights under the decree. The court denied the motion to dissolve the restraining order but entered an order that granted husband visitation rights.

Husband then moved to dismiss wife's motion to modify the decree or, in the alternative, to strike that part of her motion seeking modification of the child support provision. The court denied the motion to dismiss, holding that it had jurisdiction to modify custody and visitation provisions under the Uniform Child Custody Jurisdiction Act (UCCJA), but it granted his motion to strike, holding that it did not have personal jurisdiction over husband to modify the child support provisions of the decree. ¹

After that order, the parties entered into a stipulation modifying the decree as to custody and visitation "without prejudice to [wife's] right to seek an award of attorney's fees from [husband, to] be determined by this Court." The court awarded wife $2,500 for attorney fees, finding that it had personal jurisdiction over husband for that purpose. It is that determination from which husband appeals. He contends that, because the trial court concluded that it had no personal jurisdiction to alter child support, it likewise lacked personal jurisdiction to award attorney fees. He also contends that an award of attorney fees was not authorized by ORS 109.770(7), 109.780 or 109.850. We do not decide that question, because we conclude that the trial court had personal jurisdiction over him and that the award of fees is sustainable under the provisions of the decree.

A court may dissolve a marriage in an ex parte proceeding against a nonresident spouse, and it may also determine a custody dispute against a nonresident spouse over whom it cannot exercise personal jurisdiction. Without some act by the nonresident spouse which confers personal jurisdiction over him, such as consent or a general appearance in the action, the court may not enter an order affecting that spouse's monetary obligations or rights. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948).

ORCP 21 provides that the defense of lack of personal jurisdiction may be asserted in a motion to dismiss and may be consolidated in a motion with other defenses assertable under rule 21. Objection to the court's exercise of personal jurisdiction is waived under ORCP 21G if not included in either a rule 21 motion or the responsive pleading. Before moving to dismiss wife's motion for lack of personal jurisdiction, husband moved separately to dissolve a temporary restraining order and for a writ of assistance. Because these motions were not made under ORCP 21, husband did not waive the objection to personal jurisdiction under that rule; however, after invoking the power of the court to assist him in enforcing his visitation rights, husband may not contend he has not submitted to the personal jurisdiction of the court.

ORCP 4L provides that a court may exercise jurisdiction over a party in any manner not inconsistent with the Constitutions of Oregon and the United States. The comment to this rule indicates that the legislature intended to permit an exercise of jurisdiction which goes to the limit of the Due...