Marriage of Gibbons, Matter of, DR-0852
Decision Date | 28 July 1997 |
Docket Number | DR-0852 |
Citation | 956 P.2d 1069,153 Or.App. 377 |
Parties | In the Matter of the MARRIAGE OF Wendy Maureen GIBBONS, Respondent, and Denis Lee Gibbons, Appellant. 95-; CA A98405. . On Respondent's Motion to Dismiss Appeal |
Court | Oregon Court of Appeals |
Frank C. Rote, III, Grants Pass, and Brown, Hughes, Bird, Lane & Rote for motion.
Clayton C. Patrick, Salem, contra.
Before LANDAU, P.J., and HASELTON and ARMSTRONG, JJ.
Husband appeals from a judgment of dissolution of marriage entered as a default judgment. We dismiss for lack of jurisdiction. ORS 19.245.
In August 1995, wife filed a petition for dissolution. Husband did not file an answer or any other equivalent responsive pleading to that petition. On July 22, 1996, husband appeared pro se at a show cause hearing; on the same day, he was served with wife's notice of intent to obtain an order of default within 10 days. ORCP 69 A(1). 1 Again, husband did not file an answer or responsive pleading. Accordingly, on August 1, 1996, wife moved for an order of default pursuant to ORCP 69 A(1). On August 5, 1996, the court entered the order of default. Thereafter, on August 8, 1996, and on April 30, 1997, husband twice unsuccessfully moved under ORCP 69 C 2 to set aside the order of default. On May 29, 1997, the court entered a judgment of dissolution of marriage, which was expressly predicated on the prior order of default and which comported with the relief requested. Husband appeals from that judgment. 3
Wife has moved to dismiss this appeal for lack of jurisdiction under ORS 19.245 (formerly ORS 19.020) 4 and for inadequate service of the notice of appeal. Because the first ground is dispositive, we do not reach the second.
ORS 19.245 reads:
(Emphasis added.)
Although the statute's antecedents date nearly to statehood, General Laws of Oregon, ch. 6, § 526, p. 280 (Deady 1845-1864), relatively few decisions have explored the meaning of the phrase "for want of an answer." See generally Henry and Henry, 301 Or. 185, 188-92, 721 P.2d 430 (1986) ( ). Nevertheless, the cases are clear that where, as here, a judgment is entered predicated on an order of default under ORCP 69 A, the judgment is a judgment "for want of an answer." See, e.g., Rajneesh Foundation v. McGreer, 303 Or. 139, 141-42 n. 2, 734 P.2d 871 (1987) (). 5
Husband attempts to avoid that result by asserting that: (1) He appeared in the trial court before entry of the order of default; and (2) His subsequent efforts to set aside the order of default are a sufficient appearance to constitute an "answer" for purposes of ORS 19.245. Neither argument is availing. Although husband did appear pro se at the show cause hearing on July 22, 1996, nothing in the trial court file establishes that husband filed any pleading, much less a responsive pleading, before entry of the order of default. 6 See generally ORCP 69 A. See also Colwell v. Chernabaeff, 258 Or. 373, 375, 482 P.2d 157 (1971) ( ). Accord Morrow Co. Sch. Dist. v. Oreg. Land and Water Co., 78 Or.App. 296, 301-302, 716 P.2d 766 (1986) ( ). Husband's mere personal appearance, without filing a responsive pleading, did not preclude the entry of the order of default. 7
Nor does the fact that husband later sought to set aside the order of default alter the fact that the default judgment was predicated on the order of default and, thus, was entered for want of an answer. See Rajneesh Foundation, 303 Or. at 141-42 n. 2, 734 P.2d 871. See also State ex rel. Shepherd v. Simpson, 69 Or. 93, 137 P. 750, on rehearing 69 Or. 93, 98, 138 P. 467 (1914) ( ); Morrow Co. Sch. Dist., 78 Or.App. at 301, 716 P.2d 766 ( ). 8
The judgment that is the object of this appeal was a judgment entered "for want of an answer." Accordingly, under ORS 19.245, we lack jurisdiction.
Appeal dismissed. Costs to wife.
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