348 P.3d 696
Okla.2015Background
- Mother filed for dissolution and temporary custody (June 2010); Father was personally served and attended the temporary custody hearing pro se but did not file an answer or an entry of appearance.
- A temporary order awarding Mother custody and supervised visitation for Father was filed; record does not show Father received a copy before filing.
- Mother later set the case for default (August 24, 2011), did not file a motion for default, and did not give Father notice of the default hearing; a final divorce decree entered the same day awarding divorce, custody, and child support.
- Father moved to vacate the divorce decree in 2018 alleging fraud and lack of due process because he had appeared in court and received no Rule 10 notice of the default hearing.
- The district court denied the motion to vacate; the Court of Civil Appeals affirmed; the Oklahoma Supreme Court granted certiorari.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether Rule 10 notice and a filed motion for default are required when a party physically appears at a hearing but does not file an entry of appearance | Mother: Not required because Father did not file an entry of appearance under 12 O.S. § 2005.2 and his address was (allegedly) unknown | Father: Physical presence and participation at a hearing constitutes an appearance under Rule 10, triggering the motion-and-notice requirement | Held: Yes — physical appearance constitutes "made an appearance" under Rule 10; Mother’s failure to file a motion for default and give notice was an irregularity; district court abused its discretion in denying vacatur; remanded |
| Whether the district court’s denial of vacatur should be reviewed de novo or for abuse of discretion | Mother: (argued hardships; not preserved below) | Father: District court erred as a matter of law in construing Rule 10’s phrase "made an appearance" | Held: Mixed review — factual discretion for vacatur but the construction/application of Rule 10 is a pure question of law reviewed de novo; court reversed denial of vacatur |
| Whether failure to mail/file-stamp or otherwise serve judgment affected timeliness of motion to vacate | Mother: (not properly preserved; record deficient) | Father: Record shows no mailing or notice; motion was timely under statutory exceptions | Held: Record fails to show service/mailing; Father’s motion was within statutory time limits; court need not reach void-judgment doctrine beyond that point |
| Whether other defenses (hardship, remarriage, equitable considerations) bar vacatur | Mother: Hardship and changed circumstances justify denial of vacatur | Father: Procedural due process violation cannot be excused by those claims on this record | Held: Court declined to resolve equitable hardship on appeal; directed remand for district court to consider such defenses in light of ruling on Rule 10 |
Key Cases Cited
- Ferguson Enters., Inc. v. H. Webb Enters., Inc., 13 P.3d 480 (Okla. 2000) (standards for reviewing denial/vacatur of default judgments)
- Barber v. Barber, 77 P.3d 576 (Okla. 2008) (parental custody implicates fundamental rights)
- Knell v. Burnes, 645 P.2d 471 (Okla. 1982) (premature or irregular judgments may be vacated)
- Porter v. Oklahoma Bacone College Trust, 346 P.2d 335 (Okla. 1959) (appearance in court may waive challenge to jurisdiction)
- Bovasso v. Sample, 649 P.2d 521 (Okla. 1982) (notice of taking default not required where no appearance or pleadings filed)
- Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 46 P.3d 698 (Okla. 2002) (legal questions in vacatur reviewed de novo)