Marriage of Weaver, Matter of
| Decision Date | 21 April 1993 |
| Parties | In the Matter of the MARRIAGE OF Donald A. WEAVER, Jr., Respondent, and April A. Weaver, Appellant. 15-90-07502, CA A68718. |
| Court | Oregon Court of Appeals |
Marjorie A. Schmechel, Eugene, argued the cause and filed the brief for appellant.
James J. Kolstoe, Eugene, argued the cause and filed the brief for respondent.
Before RICHARDSON, C.J., and DEITS and DURHAM, JJ.
Wife appeals from an order denying her motion to set aside the judgment of dissolution of her marriage, which was entered after her failure to appear for trial. We affirm.
The parties separated in July, 1990, when wife moved with their three children from Oregon to California. Husband filed a petition for dissolution in Lane County on August 23, 1990. Wife was served on September 17, 1990, at her mother's residence, where she was living in California. She did not file a response, and, on October 19, husband filed notice of his intent to apply for a judgment by default. That notice was also served on wife at her mother's address. On November 16, wife filed a motion to dismiss husband's petition pursuant to ORCP 21, arguing that California was the proper forum under the Uniform Child Custody Jurisdiction Act (UCCJA) to decide the child custody issue. A hearing was held on the motion on December 17. Both parties and their attorneys were present. The trial court held that Oregon was the proper forum for determining custody and denied wife's motion. It also granted wife temporary custody of the children subject to husband's visitation.
Wife filed an appearance on December 31, 1990, and moved back to Oregon. The trial court granted husband an order restraining wife from removing the children from Oregon. The restraining order was served on wife's attorney, and wife had actual knowledge of the order. In January, 1991, wife took the children back to California and rented an apartment near her mother's home. Wife's attorney moved to withdraw from the case on January 4, 1991, because wife had dismissed him. Although the motion failed to state wife's address, as required by UTCR 3.140(1), 1 the trial court granted it. Trial was set for January 30, 1991. On January 10, 1991, a trial notice was sent by certified mail to wife at her mother's address. It was returned as "no forwarding order on file, unable to forward." Wife acknowledged, however, that her mother had told her that a certified letter had come for her. On January 18, husband also mailed to wife, at her mother's address, a copy of a letter to the trial court, which gave the trial date.
A trial was held on January 30. Wife did not appear. The trial court took testimony and heard argument by husband's counsel. The court found that wife had violated the restraining order and granted the judgment of dissolution, which gave custody of the children to husband and prohibited wife from visiting them. The judgment was entered on February 4, 1991, and on February 11, wife was served with a copy of the judgment. On February 25, 1991, wife filed a motion to set aside the judgment, arguing that she was entitled to relief under ORCP 71 and ORCP 69, because she was not served with either notice of the trial date or notice of intent to seek an order of default. The trial court denied wife's motion.
Wife first assigns error to the trial court's determination that she was not entitled to relief under ORCP 71B(1)(a). She argues that her inadvertence or excusable neglect caused her not to receive notice of the trial date. We review the court's decision for abuse of discretion. Pacheco v. Blatchford, 91 Or.App. 390, 392, 754 P.2d 1219, rev. den. 306 Or. 660, 763 P.2d 151 (1988). The trial court found, and we agree, that wife knew or should have known that the dissolution proceeding was pending and that she was obligated to advise the court of her mailing address, but failed to do so. A copy of the letter stating the trial date was mailed to her mother's address, the last address that she had provided to the court. Wife was in close communication with her mother, knew of the attempted delivery of the certified letter and still failed to act. We conclude that the trial court did not abuse its discretion in deciding that wife was not entitled to relief under ORCP 71B(1)(a) for inadvertence or excusable neglect.
Wife also argues, relying on Van Dyke v. Varsity Club, Inc., 103 Or.App. 99, 103, 796 P.2d 382, rev. den. 310 Or. 476, 799 P.2d 647 (1990), and ORCP 69A, that we should set aside the judgment under ORCP 71B(1)(d), because she did not receive 10 days' notice of husband's intent to apply for an order of default. ORCP 69A provides:
Van Dyke held that, under an earlier version of ORCP 69A, 2 a judgment entered against a defendant who had appeared by filing numerous motions but failed to appear for trial was a judgment by default and was void because the party who sought it had failed to give 10 days' notice of intent to apply for a judgment. The court reached that result by construing the phrase "failed to * * * otherwise defend" in ORCP 69A to apply to a party's nonappearance for trial.
Before Van Dyke was decided, ORCP 69A was amended to require 10 days' notice of an intent to apply for an order of default, not for a judgment by default. This case concerns the amended rule. The issue is whether we should follow the rationale of Van Dyke and construe the amended rule to apply to a party's failure to appear for trial.
In construing the ORCP, we follow ordinary principles of statutory construction to discern the drafters' intent. We first analyze the text and context of ORCP 69A. See Boone v. Wright, 314 Or. 135, 138, 836 P.2d 727 (1992). In Columbia Steel Castings Co. v. City of Portland, 314 Or. 424, 430, 840 [119 Or.App. 483] P.2d 71 (1992), the court stated a rule of statutory construction that applies equally to the construction of ORCP:
The key phrase in ORCP 69A, "otherwise defend as provided in these rules," does not demonstrate that the drafters regarded a failure to appear for trial as a default. As we noted in Van Dyke:
"[T]he phrase 'otherwise defend' in ORCP 69 logically could be read not to include a situation when a litigant fails, after pleading, to appear and defend at trial * * *." 103 Or.App. at 103, 796 P.2d 382.
Except for matters involving compulsory attendance procedures that are not relevant here, see, e.g., ORCP 8 (process), nothing in ORCP requires a party to defend by appearing for trial.
We turn to the context of ORCP 69A. Other rules clarify the drafters' intention in using the term "defend" in that rule. ORCP 7C(2) provides:
(Emphasis supplied.)
ORCP 15A provides:
(Emphasis supplied.)
Those rules impose the obligation, which the summons describes, to file a pleading or motion. See also ORCP 19A; ORCP 21A. The rules uniformly employ the phrase "appear and defend" to refer to a party's assertion of factual or legal contentions in a pleading or motion, not to a party's appearance at trial. None of the rules regarding trials use the term "defend" to obligate a party to physically appear for a trial. See ORCP 50, 51, 56 and 58. Because the drafters of ORCP used the term "defend" consistently to describe the obligation to file a pleading or motion, we assume that that term was used in the same sense in ORCP 69A.
In Van Dyke v. Varsity Club, Inc., supra, 103 Or.App. at 103, 796 P.2d 382, we said:
"ORCP 69 was meant to be broader than the statute that it replaced, former ORS 18.080, which merely addressed default for failure to answer.
We adhere to that statement. Former ORS 18.080(1) applied only to a defendant's failure to file an answer. ORCP 69A applies to any party's failure to file a required...
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