State ex rel. Karr v. Shorey
| Decision Date | 18 July 1977 |
| Citation | 567 P.2d 118,30 Or.App. 137 |
| Parties | STATE of Oregon ex rel. Sheridean Deborah KARR, Respondent, v. Douglas W. SHOREY, Appellant. |
| Court | Oregon Court of Appeals |
Dean A. Heiling, Roseburg, argued the cause and filed the briefs for appellant.
John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C. J., and THORNTON and TANZER, JJ.
Defendant appeals from the denial of his special appearance motion to set aside a paternity decree which declared him to be the father of plaintiff's illegitimate child and ordered him to pay $50 per month child support. The basis of the motion was that the court lacked jurisdiction over defendant at the time the decree was entered.
On May 29, 1969, plaintiff filed a filiation petition pursuant to ORS 109.125 et seq. No citation to appear was issued to defendant 1 and there is no indication that he had any notice of the proceeding prior to the entry of the paternity order on June 4, 1969, except as indicated prospectively in his stipulation.
The paternity order was predicated upon an agreement signed by defendant on May 12, 1969 in which he acknowledged that he was the father of plaintiff's child and upon an undated document entitled "STIPULATION FOR ENTRY OF AN ORDER ESTABLISHING PATERNITY" also signed by defendant, apparently at the same time. Reproduction of both printed documents follows:
Plaintiff, No.
Plaintiff against Douglas W. Shorey, Defendant, for the purpose of
establishing paternity and requiring said Defendant to pay support for Scott
D. Karr, a child(ren) born out of wedlock; and
WHEREAS the parties desire to settle the matter without dispute;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED TO between Sheridean
Deborah Karr and Douglas W. Shorey that an order based upon an agreement
attached hereto and made a part hereof be entered in this matter establishing
paternity and allowing support for said child(ren).
PLaintiff, No.
WHEREAS Sheridean Deborah Karr alleges that she gave birth to a () (male)
child named Scott D. Karr on the 7th day of April, 1969, in the City of
Roseburg County of Douglas, State of Oregon; and ____________________________
_______________________________________________________________________________
_______________________________________________________________________________
WHEREAS the said Sheridean Deborah Karr names Douglas W. Shorey as the
father of said child; and
WHEREAS it is the desire of said Sheridean Deborah Karr and Douglas W.
Shorey to enter into an agreement providing for the support and
acknowledgment of the paternity of said child;
NOW THEREFORE, It Is Hereby Agreed by and between Sheridean Deborah Karr and
Douglas W. Shorey that the said Douglas W. Shorey is the father of said child
born to Sheridean Deborah Karr as above stated and that the said Douglas W.
Shorey hereby acknowledges that he is the father of said child and agrees to
pay the sum of $50.00 per month for the support of said child; the first
payment of $50.00 to be made on or before the 1st day of July, 1969, and like
payments of $50.00 to be made on or before the 1st day of each and every
month thereafter until said child reaches the age of majority, is
emancipated, or until further order of this Court.
DATED this 22nd day of May, 1969.
WITNESS:
s/ James R. Warren s/ Sheridean Deborah Karr
_______________ ______________________
_______________
Dated this 12th day of May, 1969.
WITNESS:
s/ James R. Warren s/ Douglas W. Shorey
_______________ ______________________
_______________ Defendant complied partially with the terms of the paternity judgment 2 until, in May of 1975, he filed his motion challenging the court's jurisdiction on grounds of lack of notice and service of process.
A court cannot adjudicate a personal claim unless it has jurisdiction over the person of the defendant. If that jurisdiction is lacking when an order is entered, then the judgment is void and it will forever so remain. Wiles v. Wiles, 211 Or. 163, 315 P.2d 131 (1957).
Under ORS 15.030, the only means by which a court may obtain personal jurisdiction are service of process or voluntary appearance. It provides:
Since, in this case, there was no service of a summons upon defendant, the court's jurisdiction if it exists, must be predicated upon a voluntary appearance in the proceeding by defendant. The only acts of defendant, prior to the entry of judgment which might arguably be construed as such an appearance are his execution of the paternity agreement and stipulation. The issue, therefore, is whether, by signing those documents, or either of them, defendant made a voluntary appearance.
Whether a party has made an appearance in an action sufficient to invest the court with jurisdiction is not a question susceptible to formulaic resolution. Although, on its face, ORS 16.140 appears to provide such a formula: "(a) defendant appears in an action or suit when he answers, demurs or files a motion therein * * *," the Supreme Court has held that this definition is not exclusive and that a person may voluntarily appear by means other than those enumerated in the statute. Thoenes v. Tatro, 270 Or. 775, 780, 529 P.2d 912 (1974); Belknap v. Charlton, 25 Or. 41, 34 P. 758 (1893). The test of whether an act done in connection with litigation other than a formal answer, demurrer or motion constitutes a voluntary appearance is whether the party has sought by that act to use the machinery of the court in some affirmative way to serve his ends. Thus, in Charette v. Eisenbraun, 274 Or. 491, 547 P.2d 612 (1976), the fact that defendant secured a medical examination of plaintiff after institution of a personal injury action, was held not to be a voluntary appearance because the examination was secured through a private agreement between the parties, not through judicial compulsion. Similarly, in Thoenes v. Tatro, 270 Or. 775, 529 P.2d 912 (1974), where defendant obtained an extension of time in which to plead through the private consent of plaintiff, no jurisdiction was thus obtained because no relief had been sought or obtained through the court.
In this case, it is unlikely that defendant's execution of the paternity agreement and stipulation was intended to serve his own ends. Apart from the theoretical and speculative advantages which accrue from parenthood, his acknowledgment of paternity was wholly contrary to his interests. We decline to base our holding on that basis, however, because an invocation of the court's jurisdiction is no less so because it is unwise or contrary to one's best interests.
Conversely, the fact that the papers which defendant signed were captioned in the manner of official court documents does not transform an extra-judicial agreement into a voluntary appearance before the court referred to in the captions. The effect of a document is determined by its content not by its form. See, Sugarman v. Olsen, 254 Or. 385, 388, 459 P.2d 545 (1969); Rogue River Management Co. v. Shaw, 243 Or. 54, 61, 411 P.2d 440 (1966).
The paternity agreement signed by defendant merely sets forth the terms of a private agreement between the parties. It states that it is "(a)greed by and between" the parties that defendant is the father of plaintiff's child and that he agrees to pay $50 per month child support. In substance, it resembles a property settlement agreement incident to a dissolution of marriage. Like such a property settlement, the paternity agreement herein has only contractual and evidentiary significance. It is not sanctioned by the court, and the court could not, by force of the agreement alone, enter judgment upon it or secure the parties' compliance through contempt proceedings. The agreement does not petition the court to take any action nor does it, in itself, initiate any court process. As the Supreme Court observed in Thoenes v. Tatro, 270 Or. at 783, 529 P.2d at 917, "* * * it would seem strange indeed to treat as an appearance conduct which does not invoke any action from the court or use the procedures of the court in any way."
We next consider whether defendant's execution of the stipulation set forth above constituted a voluntary appearance. That stipulation, like the paternity agreement, embodies a private contract between the parties. However, unlike the paternity agreement, the stipulation recites that "a court proceeding has been instituted." 3 By the terms of the stipulation, the parties agree that an order establishing paternity should be entered in that proceeding, based upon the paternity agreement. ORS 109.155 authorizes the court, in a filiation case, to approve any settlement agreement between the parties and to incorporate such an agreement into a decree. The fact that the parties have contractually bound...
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State ex rel. Karr v. Shorey
...appear and contest the paternity claim. 1 The trial court denied that motion. The Court of Appeals reversed the trial court. 30 Or.App. 137, 567 P.2d 118 (1977), with a dissenting opinion by Thornton, J. We granted review because of the public importance of this case as it reflects upon the......
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MATTER OF DUNCAN
...court may not enforce a personal obligation unless it has jurisdiction over the party sought to be bound. See State ex rel. Karr v. Shorey, 30 Or.App. 137, 142, 567 P.2d 118 (1977), rev'd on other grounds 281 Or. 453, 575 P.2d 981 (1978). Summons must be served on the defending party pursua......