DocketNumber: No. 71 3526
Citation Numbers: 16 Or. App. 173, 517 P.2d 1206, 1974 Ore. App. LEXIS 1156
Judges: Foley, Schwab, Thornton
Filed Date: 1/21/1974
Status: Precedential
Modified Date: 11/13/2024
This appeal involves the nature of service required to give the domestic relations court jurisdiction
In 1971, prior to the effective date of the present “dissolution” statutes, the plaintiff, hereinafter called the mother, filed a suit for divorce, seeking a divorce and custody of the minor children, including custody of a four-year-old child who is the subject of the controversy at bar.
In 1972, the defendant, hereinafter called the father, moved the domestic relations court for an order transferring custody of the child to him. He attempted to serve the motion upon the mother by mailing a copy to the attorney who had represented her in the divorce case.
In any event, no appearance on the motion was
ORS 107.135, adopted by the 1971 legislature as part of the dissolution-of-marriage law, modified the former statutory provision relating to the power of the court to modify custody decrees by adding the italicized language:
“(1) The court has the power at any time after a decree is given, upon the motion of either party and after service of notice on the other party in the manner provided by law for service of a summons, to:
“(a) * * * modify so much of the decree as may provide for the * * * custody * * * of the minor children * * *.
ÍÍ-M # * # # 3?
Why the father, when he could not find the mother within the state, did not obtain service by publication,
“* * * [A]n order quashing service of summons, regardless of the trial court’s reasons, is not appealable. If the plaintiff cannot by any means proceed any further, or prefers not to do so, he must secure a judgment of dismissal in order to obtain review * * *" Ter Har v. Backus, 256 Or 288, 290, 473 P2d 143 (1970).
By the same token, we find it difficult to' understand why the mother merely moved to quash service rather than moving to set aside the order transferring custody on the ground that it was void for want of jurisdiction. See, Salitan et al v. Dashney et al, 219 Or 553, 347 P2d 974, 81 ALR2d 532 (1959).
Hopefully, if everyone involved concerns himself primarily with the welfare of the child, any further proceedings deemed' desirable in the interest of the child’s welfare will take place before he is again moved. See, R. v. R., 15 Or App 464, 516 P2d 476 (1973).
Appeal dismissed.
We are here dealing only with the power of a domestic relations court and not with the power of a juvenile court to affect the status of children.
Under some circumstances such service would have been sufficient prior to the 1971 amendment to ORS 107.135. See, Scarth v. Scarth, 211 Or 121, 315 P2d 141 (1957).
The record indicates that some time alter he had filed his motion for modification the father learned that the mother and child were in Walla Walla, Washington, and that after the ex parte order transferring custody was entered he went to Walla Walla and got the child.
After notice of appeal was filed by the father, the mother moved to dismiss on the basis of no appealable order. We erred in not granting the motion.