In re the Marriage of Lorenz , 104 Or. App. 438 ( 1990 )

PER CURIAM

The parties stipulated in open court to the amount of child support owed by wife to husband. Husband filed a motion for relief from the stipulation, which the trial court denied after a hearing. Husband appeals, arguing that the trial court erred in refusing to allow him to present evidence.

A stipulation agreed to in open court cannot be set aside at the behest of a party except on a showing of fraud, mutual mistake or the actual absence of consent. Murray v. Johnson, 86 Or App 295, 297, 738 P2d 1005 (1987). Before presenting evidence as to any error in the agreed support amount, husband had to establish a ground to set aside the stipulation. He contends that there was a mutual mistake, because the parties used the wrong figures. The record does not support that. The “mistake” was, instead, a dispute as to whether the figures should have included support for a daughter that wife contended was emancipated.

That dispute does not reflect a mutual mistake. Both parties were aware of the number of their children. Instead of litigating daughter’s emancipation, husband presented a support amount proposal to wife, and she agreed. There was no error in the trial court’s refusal to hear evidence regarding the correct support amount.

Affirmed. No costs to either party.