Coumarbatch and Onubogu ( 2024 )

No. 295 May 1, 2024 459
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Marriage of
Michelle Nickole COUMARBATCH,
Petitioner-Appellant,
and
Michael Oluchukwu ONUBOGU,
Respondent-Respondent.
Washington County Circuit Court
21DR16621; A178809
D. Charles Bailey, Jr., Judge.
Submitted March 28, 2024.
Kimberly S. Brown filed the brief for appellant.
Andrew W. Newsom filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and DeVore,
Senior Judge.
PER CURIAM
Reversed and remanded.
460 Coumarbatch and Onubogu
PER CURIAM
In this dissolution case, wife appeals from an order
and a judgment denying her motion under ORCP 71 B(1)(a)
to set aside an order and judgment of default. Wife notes
that husband failed to provide the 10-day notice of default
required by ORCP 69 A (which amounts to good cause for
relief from a judgment under ORCP 69 F) and, further, con-
tends that she has established mistake, inadvertence, or
excusable neglect under ORCP 71 B(1)(a), as a ground for set-
ting aside the default judgment. She also contends that the
default judgment exceeded the terms alleged in husband’s
response to the petition for dissolution filed by wife, insofar
as the judgment gave specific relief to husband that was not
alleged in the response. We review the trial court’s denial of
wife’s motion to set aside the default judgment for an abuse
of discretion. Dennison v. Doreen, 281 Or 89, 98, 573 P2d
1242 (1978). We agree with wife that the order of default
was premature and without notice, it having been based on
wife’s failure to appear at a hearing on a motion to compel
production, rather than a hearing on breach of an order to
compel. And we also agree that the default judgment, ren-
dered without a further hearing or evidence, exceeded the
terms alleged by husband in his response to the petition for
dissolution. Therefore, we conclude that the trial court did
abuse its discretion in denying wife’s motion to set aside the
default judgment, and we reverse and remand the judgment.
Reversed and remanded.