SCHWEIGERT v. SCHWEIGERT
2015 OK 20
| Okla. | 2015Background
- Denise (Mother) filed for dissolution and temporary custody (June 2010); Tony (Father) was personally served and appeared at the temporary-order hearing pro se but did not file an answer or an entry of appearance.
- A temporary order granting Mother custody and supervised visitation for Father was later filed; record does not show Father received a copy.
- Mother set a default hearing and obtained a final divorce decree on August 24, 2011, describing Father as "in default"; Mother did not file a motion for default nor give Father notice of the default hearing.
- Father moved to vacate the divorce decree (July 2013; amended August 2013) asserting fraud and lack of due process for failure to provide Rule 10 notice after Father had appeared.
- The district court denied the motion, concluding mere physical appearance did not constitute an "appearance" triggering Rule 10; the Court of Civil Appeals affirmed.
- The Oklahoma Supreme Court granted certiorari and reversed: Rule 10 requires a motion for default and notice when an adverse party has "made an appearance," which includes physical participation in a hearing.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether Rule 10's phrase "made an appearance" requires filing an entry of appearance (12 O.S. §2005.2) before Rule 10 notice and a motion for default are mandatory | Mother: "Made an appearance" means a filed entry of appearance under §2005.2; absent that, no Rule 10 notice required | Father: Physical participation in court (even pro se) constitutes an "appearance" under Rule 10, so mother had to file a motion for default and give notice | Held: "Made an appearance" includes physical participation in a hearing; Mother was required to file a motion for default and give notice under Rule 10; failure was an irregularity requiring vacation/remand |
| Whether the default divorce decree should have been left intact because of alleged hardship/remarriage and timeliness of motion | Mother: Hardship/remarriage and delay justify denying vacatur | Father: Due process violated; timely motion to vacate for irregularity | Held: Court declined to decide hardship on appeal because not preserved or supported in record; remand for district court to reconsider motion to vacate in light of Rule 10 error |
Key Cases Cited
- Ferguson Enters., Inc. v. H. Webb Enters., Inc., 13 P.3d 480 (Okla. 2000) (standards for vacating default judgments and abuse-of-discretion review)
- Bovasso v. Sample, 649 P.2d 521 (Okla. 1982) (notice of taking default not required where defendant has not entered an appearance)
- Barber v. Barber, 77 P.3d 576 (Okla. 2003) (parental rights to custody are fundamental interests)
- Porter v. Oklahoma Bacone College Trust, 346 P.2d 335 (Okla. 1959) (voluntary appearance subjects party to court jurisdiction and may waive defects in notice)
- Hines v. Winters, 320 P.2d 1114 (Okla. 1957) (plain meaning rule for construing court rules/statutes)