State v. Ainsworth

• Decision Date: 23 July 2009
• Docket Number: SC S055558.,CC 90DM0110.,CA A130354.
• Citation: 213 P.3d 1225,346 Or. 524
• Parties: STATE of Oregon, Petitioner, v. William AINSWORTH, Respondent. State of Oregon, Respondent on Review, v. Jan M. Ainsworth, nka Jan M. Conners, Petitioner on Review.
• Court: Oregon Supreme Court

213 P.3d 1225

346 Or. 524

STATE of Oregon, Petitioner, v. William AINSWORTH, Respondent.

State of Oregon, Respondent on Review, v. Jan M. Ainsworth, nka Jan M. Conners, Petitioner on Review.

CC 90DM0110.

CA A130354.

SC S055558.

Supreme Court of Oregon, En Banc.

Argued and Submitted June 4, 2008.

Decided July 23, 2009.

On review from the Court of Appeals.^*

Steven H. Gorham, Salem, argued the cause and filed the brief for petitioner on review Jan M. Conners.

Erika L. Hadlock, Assistant Solicitor General, argued the cause for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

LINDER, J.

This case arises from an attempt by petitioner on review (mother) to appeal a trial court judgment finding her in contempt of court for failure to pay child support. Mother failed to timely appeal the original judgment finding her in contempt. Mother thereafter moved for entry of an amended judgment, relying on an affidavit from her attorney explaining why he did not discover that the original judgment had been entered until after the time to appeal had expired. The trial court granted the motion, and mother, within 30 days of the entry of the amended judgment, filed a notice of appeal. Citing Far West Landscaping v. Modern Merchandising, 287 Or. 653, 601 P.2d 1237 (1979), the Court of Appeals concluded that the trial court did not have authority to enter the amended judgment and issued an order dismissing mother's appeal for lack of jurisdiction.

We allowed mother's petition for review. On review, the parties renew the arguments they made to the Court of Appeals, which center on whether this court's holding in Far West remains correct in light of subsequent changes to the Oregon Rules of Civil Procedure (ORCPs). As we will explain, those legislative changes do not provide a basis for departing from the holding in Far West. However, as we also will explain, we further conclude, for an alternative reason, that the trial court had authority to amend its judgment under the circumstances presented to it. We therefore reverse the order of the Court of Appeals and remand to that court for further proceedings.

The pertinent facts are procedural. Between 2002 and 2004, a series of administrative orders required mother to pay varying amounts of child support to her former husband. When mother failed to make some of the required payments, the state filed a motion seeking remedial contempt sanctions for mother's nonpayment of support.¹ After an extended hearing on the motion, the trial court found mother in contempt, ordered mother to pay the monthly child support as scheduled, and further ordered mother to pay an additional 20 percent of the monthly support amount (specified as $51 per month) to repay the arrearage that mother owed. On August 25, 2005, the trial court signed a judgment memorializing that decision. The judgment was entered in the register on that same date.

Mother did not appeal that judgment within 30 days, as required by ORS 19.255(1). Nevertheless, a few days after the time to appeal expired, mother's counsel in the contempt proceeding filed a motion asking the trial court to appoint appellate counsel for her. In support of that motion, counsel attached his affidavit explaining why he did not know, until after the time to appeal had expired, that the contempt judgment had been prepared, signed, and entered. In substance, trial counsel averred that:

• after the court announced its decision on August 19, 2005, the state was directed to prepare the judgment for the trial court;

• counsel's office waited for its service copy of the judgment, knowing that mother wanted to appeal;

• counsel's office never received a service copy of the judgment that the state had prepared;

• mother called counsel on September 26, 2005, to ask about the status of the appeal, which caused counsel to consult the Oregon Judicial Information Network (OJIN) about the status of the case;

• OJIN indicated that the judgment had been entered on August 25, 2005;

• OJIN indicated that the clerk had sent copies of the judgment to father, to the state, and to an attorney who previously had represented mother in connection with her support obligation, but not to the attorney who represented mother in the contempt matter;

• OJIN did not reflect that mother's counsel was given a copy of the judgment at the hearing on August 19, 2005, and counsel in fact did not receive a copy of the judgment at that hearing.

The trial court granted the motion and appointed appellate counsel for mother. Appellate counsel then filed a further motion asking the trial court to enter an amended contempt judgment, based on "the notice irregularities that took place in this matter." In support of that motion, appellate counsel relied on the affidavit that mother's trial counsel previously had submitted to the trial court, with the averments described above. The state did not oppose mother's motion; rather, as the state now describes it, the state "acquiesced" in entry of an amended judgment. No hearing was held on the matter, and the trial court signed an amended judgment on October 12, 2005, nunc pro tunc August 25, 2005, which was identical in substance to the original judgment. The amended judgment was entered in the register on October 13, 2005, and mother filed a timely notice of appeal from that judgment.

After mother filed her opening brief, the state moved to dismiss the appeal for lack of jurisdiction. The state argued that the trial court had amended the judgment solely to give mother additional time to file her appeal, which the trial court had no authority to do under this court's decision in Far West. Mother, in response, urged that Far West was either wrongly decided or not controlling. As noted, the Court of Appeals agreed with the state and dismissed the appeal by order; this court then allowed mother's petition for review.

On review, the parties' arguments largely reprise those that they made to the Court of Appeals. Central to their positions are their competing views of the continuing validity of this court's decision in Far West, which addressed a trial court's authority to vacate and reenter a judgment to revive the party's right to appeal. We therefore begin our analysis by examining that decision.

In Far West, 287 Or. 653, 601 P.2d 1237, after the plaintiff prevailed in an action for the reasonable value of landscaping work, counsel for the defendant contacted the trial court judge to ask if the judgment had been signed. The trial judge told counsel that he had not signed the judgment and further agreed not to do so until a specified later date as an accommodation to the defendant's counsel, who was to be out of town for a while and who anticipated that her client would want to appeal. The trial judge, however, was mistaken about the status of the judgment. In fact, the trial judge already had signed it. In addition, the clerk had entered the judgment in the register. The court clerk, however, had not sent counsel a copy of the signed judgment and notice of the date of its entry. Relying on the trial judge's mistaken representation that he had not signed the judgment, defense counsel did not personally check the court register and therefore did not discover, until after the time to appeal had expired, that the judgment had been entered. On the defendant's motion, the trial court set aside the judgment and entered a second identical judgment, from which the defendant then attempted to appeal. The plaintiff moved to dismiss the appeal on the ground that the trial court had no authority to set aside the judgment and to enter a second identical one, and that the appeal was therefore untimely. The Court of Appeals agreed and, by order, dismissed the appeal. Id. at 655, 601 P.2d 1237.

On review, this court affirmed. In doing so, this court rejected three arguments that the defendant advanced in support of the trial court's authority to vacate the original judgment and to enter the subsequent identical one.

First, the court considered the trial court's authority under former ORS 18.160 (1979), the predecessor to ORCP 71 B, to relieve a party from a judgment based on the party's "mistake, inadvertence, surprise or excusable neglect."² The court cited a settled line of prior cases, tracing back to the late 1800s and early 1900s, interpreting the substantially identical predecessor statute that had been in place since statehood.³ In those prior cases, the losing party had failed to file a timely appeal after relying on a trial court's or clerk's incorrect advice that no judgment had been entered, rather than checking the record personally. Western Land & Irrigation Co. v. Humfeld, 118 Or. 416, 419, 247 P. 143 (1926); Haas v. Scott et al., 115 Or. 580, 585, 239 P. 202 (1925); Tongue v. Brewster, 35 Or. 228, 228-29, 58 P. 38 (1899). In each case, this court held that the statute did not authorize the trial court to vacate a judgment and to enter a subsequent identical judgment solely to give the party a new time period in which to bring an appeal. Far West, 287 Or. at 656-57, 601 P.2d 1237 (discussing Western Land & Irrigation Co., 118 Or. at 419-20, 247 P. 143; Haas, 115 Or. at 589, 239 P. 202; Tongue, 35 Or. at 229-30, 58 P. 38).

In Far West, id. at 656-60, 601 P.2d 1237, quoting and paraphrasing key passages from those prior cases, this court identified three independent, but related, rationales for that limitation on the trial court's authority under ORS 18.160. As the court had explained in Tongue, by providing authority to relieve a party from judgment, the statute was aimed at giving the moving party an opportunity to be "let in to defend upon the merits," not an opportunity to pursue an appeal of a properly entered judgment after the time for doing so had expired. Tongue, 35 Or. at 229-30, 58 P. 38; accord Haas, 115 Or. at 589, 239 P. 202. The court in Tongue also...