Summary: Denise Schweigert (hereafter referred to as "Mother") filed for divorce from Tony Schweigert (hereafter referred to as "Father") in July, 2010. Father was served with the Summons as well as Mother's Petition and Application for Temporary Orders. A hearing on Mother's application for Temporary Orders was held on August 9, 2010. Father appeared in person and without an attorney at the hearing, but filed no papers in the case. One year passed. On August 2, 2011, Mother's attorney got a 'minute order' from the court setting the matter for a hearing on the default judgment docket. No notice was attempted or given to Father of the case being placed on the default judgment docket. On August 24, 2011 the matter came up on the default judgment docket and Mother was granted custody of the parties' minor children. Two years later, in 2013, Father filed a motion to vacate the default judgment alleging fraud and lack of due process.
Legal Issue: A district court's judgment is vacated and a new trial granted only when an aggrieved party's can show, among other things, an irregularity in the proceedings or court's order affecting the party's substantial rights. Father alleged that Mother's placing the matter on the default judgment docket without providing him notice of the same was an irregularity in the proceedings that affected his substantial rights.
The Oklahoma Supreme Court noted that it has previously held that a parent has a fundamental right to the companionship, care, custody, and management of his or her child. Although the court grants deference to the district court in its decision denying to vacate and grant a new trial, the Court will reverse the district court when it has made an error of law.
The central question was whether Father's appearance at the temporary order hearing amounted to a general appearance, and if so, what was the result of this pro se appearance.
The Court ruled that by making a physical appearance, even though he filed no documents nor had an attorney, Father had made a general entry of appearance in the case. As such, Father had all of the rights and obligations of a party in litigation. One such right is the requirement to keep the court and other party aware of contact information such that future documents can be readily served. Father did not do this. If a party fails to remain active in the case, then the other party may seek default judgment. The means of obtaining the default judgment are outlined in relevant part in Rule 10 of the District Courts which reads in relevant part:
If the addresses of both the party and his attorney are unknown, the motion for default judgment may be heard and a default judgment rendered after the motion has been regularly set on the motion and demurrer docket. It shall be noted on the motion whether notice was given to the attorney of the party in default, to the party in default or because their addresses are unknown to neither. (Emphasis added.)
Mother caused the matter to be placed on the default judgment docket without first filing a motion to do so. Because of this irregularity, Father's motion to vacate should be upheld. The matter was remanded to the district court for further action consistent with the opinion.
Discussion: Mother raised the issue of hardship in her appellate brief. Both parties have subsequently remarried. If the divorce is vacated, then in the eyes of the law Mother and Father remain married and the subsequent marriages would be rendered void. The Court noted that because this issue was first raised at the appellate level (i.e. the district court never had a chance to rule on this) that the Court would not rule on this. Justice Edmondson, joined by Justices Combs and Watt, wrote a concurring opinion that noted the issue of hardship should be raised again before the district court when the matter is remanded for further action.
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