Overturf v. Lauzon

PER CURIAM In this child custody proceeding, mother appeals from the trial court’s refusal to vacate an order finding her in default. The parties, who were never married, had a child in September, 1977. Father petitioned for custody of the child in August, 1981. When mother did not appear, an order was issued on October 29, 1981, entering default against mother and awarding custody to father. Mother sought to have the default set aside pursuant to ORCP 71(B) (1). That motion was denied and is not appealed. She also sought to have the order vacated, contending the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction Act because father’s petition failed to allege the jurisdictional facts required by ORS 109.790. The court acknowledged that it lacked jurisdiction to award custody and ordered that portion of its order vacated. It refused, however, to vacate the default.1 In State ex rel Pennsylvania v. Stork, 56 Or App 335, 641 P2d 660 (1982), we held that the failure of the petitioner to establish jurisdiction under ORS ch 109 deprived the court of jurisdiction over the custody matter. We conclude that because the trial court here lacked jurisdiction to award custody, the only issue involved in this proceeding, it also lacked jurisdiction to enter an order of default. Reversed and remanded with instructions to vacate the order of default. No costs to either party. Footnotes [1] The trial court ordered: “1. The Temporary Custody Order of August 13,1981 and the final Order of Custody of October 29,1981 are vacated and declared void ab initio. “2. The default Order of October 29,1981, is not vacated nor declared void.”