Mother files Petition for Dissolution of Marriage, seeking temporary and permanent custody of the two minor children with supervised visitation to Father, and an Application for Temporary Order. Father is personally served but did not file an Entry of Appearance or Answer; Father did appear at the hearing on the Application for Temporary Order.
A default hearing on final order, was set on the court docket without Mother filing a Motion or giving notice of the default hearing to Father. The District Court held a hearing on the Divorce Decree by default without Father’s attendance. The Court granted the divorce, awarded custody to Mother with supervised visitation to Father, and set child support.
Two years later, Father filed a Motion to Vacate the default divorce decree. The District Court denied Father’s Motion to Vacate, court of Civil Appeals affirmed. Supreme Court granted Petition for Certiorari and reversed.
Oklahoma Supreme Court found that a party must file a Motion for Default and give the adverse party notice. Appearance at the temporary order hearing is not sufficient to allow the Court to proceed with a default divorce without a Motion for Default and notice to father.
Facts: One year after the temporary order hearing, the order from the hearing was filed. The temporary order acknowledges that Father appeared in person “Pro Se” at the hearing. The record fails to show that the temporary order was ever sent to Father or that he had a chance to contest its contents before it was file.
Shortly before the memorialized temporary order was filed, Mother’s attorney tendered a “court minute” setting the matter “for default on” several weeks later. But again Father was given no notice of this hearing for default. The divorce decree was filed the same day as the hearing for default. The decree stated that Father “appears not and is in default after being served on June 15, 2010.” (This was the date of the service of Mother’s Petition or Dissolution of Marriage and Application for Temporary Order). Mother did not file a Motion for Default, and the record does not reflect any notice being served on Father or whether Father’s address was unknown.
Just under two years from the entry of the Default Decree of Divorce, Father files a Motion to Vacate. Subsequently, the Trial Court denied the Motion to Vacate because Father failed to file an Entry of Appearance or Answer, and that Mother was not required to give Father notice of the default hearing. Father appeals the Trial Court’s denial of the Motion to Vacate. Court of Civil Appeals affirmed the Trial Court. Oklahoma Supreme Court grants Certiorari and reversed and remanded to determine property issues.
The Supreme Court noted their prior decisions that consideration in review of an order refusing to vacate a default are (1) default judgments are disfavored, (2) the decision to vacate should be exercised so as to promote justice, and (3) refusal to vacate a default requires a stronger showing of abuse of discretion than an order vacating a default judgment.
A District Court’s judgment shall be vacated and a new trial granted for among other things “an irregularity in the proceedings” affecting the party’s substantive rights. Failure to file a Motion for Default and give notice is an irregularity in the proceedings.
A Motion for Default must be filed in all instances, when a party fails to file an Entry of Appearance, and even if the party appears at the Temporary Order hearing. The motion must recite what notice was given, and if none, the reason why.
Concurring opinion stated the Husband made a general appearance when as a named party he participated in legal proceeding by physical presence without preserving an objection to personal jurisdiction. Wife asserts hardship in that she has remarried and Husband’s delay in filing the Motion to Vacate was not reasonable. The concurring opinion raises this as an issue that should be addressed by the Trial Court upon remand.
The concurring opinion agrees that a Motion to Vacate should have been filed, but rejects the majority’s opinion that physical presence at the hearing did not constitute a pro se general entry of appearance.
David Echols is a senior attorney at Echols & Associates in Oklahoma City. Practicing matrimonial law in 1978, he is an expert in family law, divorce, and child custody issues. www.echolslawfirm.com