279 Or. App. 61 | Marion Cty. Cir. Ct., O.R. | 2016
Respondent appeals, challenging the trial court’s denial of his motion to set aside a stalking protective order (SPO). He asserts that the court erred in denying his motion when, prior to the entry of the final SPO, respondent had never been served with the petition and temporary SPO, nor been given notice of the hearing on the final SPO. We agree that the trial court so erred and, accordingly, reverse and remand.
The background facts are procedural and undisputed.
Neither petitioner nor respondent appeared for the February 10 hearing and, on that date, the court entered a final SPO and judgment. Thereafter, respondent filed a motion to set aside the final SPO because the petition and temporary SPO had not been served on respondent. See ORCP 71 B(l)(d) (a court may relieve a party from a void judgment); see also ORCP 4 (relating to personal jurisdiction over parties served in an action pursuant to ORCP 7); ORCP 7 (providing for service on parties). He asserted that service of the petition and temporary SPO was required under ORS 30.866(2)
On appeal, respondent asserts that the trial court erred in denying his motion to set aside the final SPO. He asserts, among other things, that “there was no service on [respondent] and thus no jurisdiction” and that, given the absence of notice to respondent of the proceedings, “it was fundamentally unfair to enter [a final SPO] without [respondent] being allowed to oppose it.”
We agree with respondent that the trial court erred when it denied respondent’s motion to set aside the final SPO. In the absence of service of the petition and temporary SPO on respondent as required by ORS 30.866(2), and given the lack of notice to respondent of the February 10, 2015, hearing, the entry of the final SPO was improper. See Nelson v. American Home Mortgage Servicing, Inc., 249 Or App 555, 558, 278 P3d 89 (2012) (judgment void for lack of personal jurisdiction where the plaintiff failed to serve the defendant). Accordingly, respondent’s motion should have been granted and the final SPO set aside.
Reversed and remanded.
Petitioner does not appear on appeal.
Pursuant to ORS 30.866(2), the “petition and temporary order shall be served upon the respondent with an order requiring the respondent to personally appear before the court to show cause why the temporary order should not be continued for an indefinite period.”