246 P.3d 1179
Or. Ct. App.2011Background
- In October 2004, dissolution awarded custody to wife with husband having no contact except indirect, via RW, and allowed quarterly letters to the children.
- Father later committed egregious violent and sexual crimes against mother during the marriage and was convicted and sentenced to nearly 40 years.
- By December 2008, father moved to modify the parenting contact provision, asserting mother violated the existing terms and proposing extensive new contact rights.
- Mother moved to strike the modification motion as sham, frivolous, and irrelevant, arguing the modification would subvert the dissolution judgment’s purpose.
- The trial court granted mother’s ORCP 21 E motion to strike, effectively precluding further proceedings on the modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly struck the modification motion under ORCP 21 E | Ross asserts the motion was legally sufficient and not sham/frivolous | Ross contends the motion was sham/frivolous/irrelevant | Trial court abused discretion; not all allegations were sham/frivolous |
| Whether ORCP 21 E may be used to strike a motion to modify in a domestic relations case | Modification issues could be legally addressed if not frivolous | Strike is appropriate for sham or irrelevant material | Court assumed applicability but erred in striking entire motion |
| Whether the trial court’s strike order precluded further modification proceedings | Modification merits evidentiary consideration | Strike ends the modification process | Strike prevented legally sufficient modification considerations; error |
Key Cases Cited
- Doyle v. Oregon Bank, 94 Or.App. 230 (1988) (accepts as true well-pleaded allegations for ORCP 21 A/E review)
- Erwin v. Oregon State Bar, 149 Or.App. 99 (1997) (applies Doyle standard to ORCP 21 E/21 A review)
- Lane v. Maass, 309 Or. 671 (1990) (frivolous/insufficient pleadings may be struck; cites minimal pleading requirements)
- Andrysek v. Andrysek, 280 Or. 61 (1977) (defines sham pleadings as false on face and not in good faith)
- Kashmir Corp. v. Nelson, 37 Or.App. 887 (1978) (frivolous pleading is one that is legally insufficient)
- Greulich v. The City of Lake Oswego, 12 Or.App. 235 (1973) (distinguishes between sham and frivolous pleadings; irrelevancy depends on legal germane-ness)
- Warm Springs Forest Products Ind. v. EBI Co., 300 Or. 617 (1986) (explanation that sham/frivolous are not interchangeable; strict standards apply)