In Re the Marriage of Ross
246 P.3d 1179
Or. Ct. App.2011Background
- In 2004, father committed violent and sexual crimes against mother, including attempted aggravated murder, resulting in a near-40-year prison sentence and affecting two children aged about three and five months.
- A 2004 dissolution judgment awarded custody to mother and barred father from contact, permitting indirect communication through RW and limiting direct contact.
- In December 2008, father moved to modify the parenting contact provision, alleging mother violated the provision and proposing substantial changes to communications and visitation with the children.
- Mother moved to strike the modification proceeding under ORCP 21 E, arguing the motion was sham, frivolous, and irrelevant and would subvert the dissolution judgment’s purpose.
- The trial court granted mother’s ORCP 21 E motion to strike, effectively ending the modification proceeding, and father appealed.
- This court reverses and remands, holding that the motion to strike was not legally permissible because the allegations were not plainly sham/frivolous/irrelevant and could be legally sufficient to modify the provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORCP 21 E can be used to strike a motion to modify in a domestic relations case. | Ross contends ORCP 21 E applies to strike sham/frivolous matters and covers modification motions. | Ross argues the motion to modify is procedurally improper and should be struck as administrative housekeeping. | No; decision to strike must be lawful and not preclude potentially valid modification. |
| Whether the motion to modify was sham, frivolous, or irrelevant on its face. | Ross asserts the allegations and submissions could establish a legally adequate basis to modify. | Ross contends the motion and submissions are baseless and designed to harass. | The motion was not clearly sham, frivolous, or irrelevant; allegations could be legally sufficient for modification. |
| Whether striking the entire motion precluded further proceedings and was error. | Ross argues that striking denied due process and a full evidentiary consideration on the merits. | Mother argues that the court properly struck improper pleadings to protect the judgment’s purpose. | Reversed and remanded; striking was error and allowed further proceedings on the merits. |
Key Cases Cited
- Doyle v. Oregon Bank, 94 Or.App. 230 (Or. Ct. App. 1988) (standard for reviewing ORCP 21 A dismissals; accept true well-pleaded allegations)
- Erwin v. Oregon State Bar, 149 Or.App. 99 (Or. Ct. App. 1997) (application of Doyle to derive standard for striking under ORCP 21 E)
- Turczynski v. Grill, 134 Or.App. 351 (Or. Ct. App. 1995) (discusses abuse of discretion in context of ORCP 21 E)
- Greulich v. City of Lake Oswego, 12 Or.App. 235 (Or. Ct. App. 1973) (abuse of discretion interpretation related to striking pleadings)
- Andrysek v. Andrysek, 280 Or. 61 (Or. 1977) (sham pleadings are false in fact and not pleaded in good faith)
- Kashmir Corp. v. Nelson, 37 Or.App. 887 (Or. Ct. App. 1978) (frivolous pleading is one that is legally insufficient in substance)
- Lane v. Maass, 309 Or. 671 (Or. 1990) (distinguishes sham/frivolous; legally insufficient pleading treated as strikeable)
- Warm Springs Forest Products Ind. v. EBI Co., 300 Or. 617 (Or. 1986) (notes that sham and frivolous are distinct concepts in context)
- Doyle v. Oregon Bank, 94 Or.App. 230 (Or. Ct. App. 1988) (see above (listed for emphasis))