In re the Custody of Duncan
In re the Custody of Duncan
Opinion of the Court
In this child custody case, mother appeals from a contempt judgment imposing remedial sanctions for her violation of an ex parte status quo order that prohibited her from removing the parties’ minor child from father’s home.
The parties are the unmarried parents of a child bom in September 1997. From early 1998 until September 18,1998, the parties and their child lived together at father’s parents’ home. On August 17, 1998, while the parties were still living together, father filed a petition in the trial court seeking custody of child. He also filed an ex parte motion for immediate temporary custody of child and sought an order requiring mother to show cause why the temporary order should not remain in effect during the pendency of the action. The trial court did not award temporary custody to father but, instead, entered an order “Establishing Status Quo and * * * to Show Cause.” That order directed that child remain in residence at father’s parents’ house and that the parties not “interfere with [child’s] current routine.” The trial court also ordered mother to appear and show cause why the status quo order should not remain in effect throughout the pen-dency of the case. Mother was personally served on the same day with copies of the custody petition, the motion for temporary custody and supporting affidavit, and the status quo and show cause order. Mother was not, however, served at that time with summons in accordance with ORCP 7 D.
On September 18, mother moved out of father’s parents’ home and took child with her. On the same day, mother filed a motion to dismiss the custody proceeding and to quash service of all orders therein. Among other arguments, mother
On November 13, the trial court denied mother’s motion to dismiss but granted her motion to quash service of the custody petition because she had not been served with summons. However, the court denied mother’s motion to quash service of the status quo and show cause order, reasoning that it was authorized to enter the order despite the lack of summons. On November 30, father filed a motion and the court entered an order directing mother to show cause why she should not be held in contempt for her removal of child on September 18.
On December 21, mother moved to quash the order allowing alternate service. She also moved to quash the contempt show cause order because it had not been personally
As noted, mother argues that the contempt judgment is invalid because the trial court lacked personal jurisdiction to enforce the status quo order on which the judgment was based. Mother argues that no personal jurisdiction existed because she had not, when she removed child, been served with summons in the custody proceeding. The trial court concluded that, despite father’s failure to have mother served with summons, it had personal jurisdiction over mother because it had subject matter jurisdiction in the custody proceeding and because mother was personally served with the status quo order.
The trial court correctly noted that this action was commenced when father filed his petition for custody. See ORCP 3 (action is commenced on filing of complaint). It is also correct, as the trial court observed, that the court’s authority to issue a temporary ex parte order arose on commencement of the action. ORS 109.103; Forte v. Page, 172 Or 645, 651-52, 143 P2d 669 (1943); Breese v. Bramwell, 102 Or 76, 78, 201 P2d 729 (1921). That authority did not depend on service of summons. Id.
However, the decisive question in this case is not whether the trial court had authority to enter the status quo order but is, instead, whether the court had the power to enforce that order. A court may not enforce a personal obligation unless it has jurisdiction over the party sought to be bound. See State ex rel Karr v. Shorey, 30 Or App 137, 142, 567 P2d 118 (1977), rev’d on other grounds 281 Or 453, 575
Assuming without deciding that the alternate service order was valid,
Reversed.
Father makes no appearance on appeal.
The trial court had previously, on father’s motion, ordered mother to appear and show cause why she should not be held in contempt. However, the November 30 order purports to “supercede and replace” the earlier order. Therefore, the earlier order is irrelevant to this appeal, and we do not discuss it.
ORCP 7 D(6)(a) provides, in part:
“On motion upon a showing by affidavit that service cannot be made by any method otherwise specified in these rules or other rule or statute, the court, at its discretion, may order service by any method or combination of methods which under the circumstances is most reasonably calculated to apprise the defendant of the existence and pendency of the action * *
The court did not find mother in contempt on any other ground.
Mother also challenges the validity of the alternate service order. She argues that father’s affidavits in support of the motion for alternate service did not comply with ORCP 7 D(6). In view of the basis for our disposition of mother’s appeal, we need not decide that issue.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.