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MURIE v. HARTING2014 OK CIV APP 49324 P.3d 1269Case Number: 111380Decided: 04/11/2014Mandate Issued: 05/08/2014DIVISION IIITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IIICite as: 2014 OK CIV APP 49, 324 P.3d 1269
KIM ELLEN MURIE, Plaintiff/Appellee,v.PHILLIP WADE 
HARTING, Defendant/Appellant,andLILLIAN HARTING, Defendant.

APPEAL FROM THE DISTRICT COURT OFPAYNE COUNTY, OKLAHOMA
HONORABLE PHILLIP C. CORLEY, TRIAL JUDGE

REVERSED AND REMANDED

Gaylon C. Hayes, HAYES LEGAL GROUP, P.C., Oklahoma City, Oklahoma, for 
Plaintiff/Appellee,Kenneth H. Robertson, Tulsa, Oklahoma, for 
Defendant/Appellant.


BRIAN JACK GOREE, Judge:
¶1 The sole issue on appeal is whether the trial court committed reversible 
error when it denied Defendant's motion to vacate a default judgment based on 
irregularity in obtaining a judgment pursuant to 12 O.S. 2011 §1031(3). We hold that 
it did and reverse the judgment.
I.
¶2 Kim Murie, Plaintiff/Appellee, filed a petition for negligence and 
intentional infliction of emotional distress against her ex-husband, Phillip 
Harting, Defendant/Appellant. The cause of the action was a physical altercation 
between Plaintiff and Defendant concerning the custody of their minor daughter 
and the incident occurred in 1998 at the residence of Defendant's mother in 
Stillwater, Oklahoma. The petition was filed in June of 2000 and Plaintiff 
mailed the suit papers to the Stillwater address. Defendant's brother lived 
there at the time, and he gave the summons and petition to Defendant. Defendant 
timely filed his answer on July 17, 2000, a handwritten pro se general denial. 
Two weeks later Defendant was taken into custody and incarcerated for more than 
six years.
¶3 On April 5, 2001, the trial court entered a default judgment against 
Defendant even though Plaintiff did not file a motion for default judgment. The 
judgment contains a finding that Defendant received notice of a disposition 
docket more than five days before the hearing and yet failed to appear. 
Defendant claims he never received notice of the hearing. Plaintiff does not 
dispute this, and neither the record nor the docket sheet shows a notice was 
served as indicated in the judgment.
¶4 Plaintiff requested a hearing on damages on June 7, 2001. Plaintiff's 
counsel certified that on June 8, 2001, he mailed a Notice of Amount of Damages 
Sought and Notice of Hearing to Defendant at three addresses including (1) a 
post office box in Stillwater, (2) a street address in Stillwater, and (3) the 
Lincoln County Jail in Chandler. The record contains photocopies of six 
envelopes which were returned to the sender with various markings suggesting 
non-delivery including, "not at this address" and "attempted - not known."
¶5 On July 13, 2001, Defendant did not appear for the damages hearing and the 
court entered a judgment against Defendant and Lillian Harting for 
$200,085.40.1 
Defendant argues that after he filed his general denial he had no notice of any 
further proceedings until June 26, 2012 when he received in the mail a copy of a 
post-judgment wage garnishment summons served on his employer.
¶6 Defendant retained counsel and filed a motion to vacate on grounds the 
judgment was obtained by irregularity. "The district court shall have power to 
vacate or modify its own judgments or orders within the times prescribed 
hereafter: ... (3) For mistake, neglect, or omission of the clerk or 
irregularity in obtaining a judgment or order .. ." 12 O.S. 2011 § 1031(3). The trial 
court denied the motion by a Journal Entry filed December 7, 2012 and Defendant 
appealed.
II.
¶7 The standard of review of a trial court's ruling either vacating or 
refusing to vacate a judgment is abuse of discretion. Ferguson Enterprises v. 
H. Webb Enterprises, 2000 OK 78, 
¶5, 13 P.3d 480, 482. Defendant 
asserts five reasons why the judgment was obtained by irregularity: (1) a motion 
for default judgment was never filed, (2) he did not receive notice of the 
hearing finding him in default, (3) he did not receive notice of the hearing on 
damages, (4) no evidence was presented to support the damages award, and (5) the 
damages awarded were excessive.
¶8 "The term 'irregularity in obtaining a judgment' has no fixed legal 
meaning. In every instance the question is one of fact, dependent upon the 
circumstances of each case. It logically follows that the application of this 
provision of the statute is addressed to the sound legal discretion of the 
court, to be exercised in furtherance of justice, on the particular facts of the 
case." Woods v. Computer Sciences Corp., 2011 OK CIV APP 17, ¶16, 247 P.3d 1201, 1205.
¶9 When a party has entered an appearance or filed a pleading, a default 
shall not be taken unless a motion has been filed in the case and five days 
notice of the date of the hearing is given. Rule 10, Rules For District Courts 
of Oklahoma, 12 O.S.1991, Ch. 2, App. Parties who make an appearance cannot be 
adjudged in default without advance notice. Enochs v. Martin Properties, 
Inc., 1997 OK 132, ¶13, 954 P.2d 124, 129. In this case, 
Defendant filed an answer but Plaintiff did not file a motion for default 
judgment. Although the judgment states Defendant received notice of the 
disposition docket more than five days before the hearing, it is undisputed that 
Defendant did not receive any such notice.
¶10 Plaintiff argues there has been no irregularity. According to Plaintiff, 
when Defendant entered his appearance and filed his answer, he thereby 
communicated the specific address where he could be served and it was thereafter 
his duty to inform the parties of a change in his service address. Plaintiff 
contends Defendant was not relieved of this duty when he was incarcerated 
because prisoners have access to the court system. In support of her argument, 
Plaintiff cites Coulsen v. Owens, 2005 OK CIV APP 93, 125 P.3d 1233.
¶11 In Coulsen, a motion for default judgment was not required by Rule 
10 because the defendant had not filed an answer. The issue in Coulsen 
was whether an attorney's failure to timely file an answer could constitute an 
unavoidable casualty pursuant to 12 
O.S. § 1031(7). In the instant case, Defendant does not claim he was 
unavoidably prevented from defending himself - he filed an answer. He 
claims there was an irregularity in the manner that judgment was obtained 
against him pursuant to § 1031(3). Coulsen does not support 
Plaintiff's position.
¶12 There is, however, authority for Plaintiff's argument that Defendant was 
required to provide notice of his change of address. Any attorney or 
unrepresented party has the duty of maintaining a current address with the 
court. 12 O.S. 2011 § 2005.2(D). 
Service of notice to the address of record of counsel or an unrepresented party 
shall be considered valid service for all purposes. Id. Here, there is no 
evidence that Plaintiff even attempted to serve Defendant with notice of 
the hearing for a default judgment, at any address. We hold that a defendant's 
failure to file a change of address with the court does not excuse a plaintiff 
from the obligation to file a motion for default judgment when required to do so 
by Rule 10. See Genoff Farms, Inc. v. Seven Oaks South, LLC, 2011 OK CIV APP 29, ¶26, 249 P.3d 526, 532 (defendant's 
failure to provide the Secretary of State with a change of address did not 
relieve plaintiff of its duty to provide valid service of process). We conclude 
the trial court's entry of a default judgment in absence of the motion required 
by Rule 10 is an irregularity within the meaning of § 1031(3). It is therefore 
unnecessary for us to review Defendant's other arguments addressed to the 
irregularity of the judgment.
III.
¶13 Plaintiff argues that Defendant is not entitled to relief because he 
erroneously challenged the judgment by motion rather than by petition. On the 
contrary, 12 O.S. 2011 § 1032 
provides, "the proceedings to correct mistakes or omissions of the clerk, or 
irregularity in obtaining a judgment or order, shall be by motion, upon 
reasonable notice to the adverse party or his attorney in the action." Section 
1033 enumerates the grounds for vacating a judgment which must be raised by 
petition, and paragraph 3 of Section 1031 is not among them. A party may seek to 
vacate a default judgment based on § 1031(3) by motion. Genoff Farms, 2011 OK CIV APP 29, ¶13, 249 P.3d 526, 530.
IV.
¶14 Plaintiff contends Defendant's motion to vacate was time-barred. The 
limitation periods for proceedings to vacate judgments are set forth in 12 O.S. 2011 § 1038:


Proceedings to vacate or modify a judgment, decree or order, for the 
    causes mentioned in paragraphs 4, 5 and 7 of Section 1031 of this title must 
    be commenced within two (2) years after the filing of the judgment, decree 
    or order, unless the party entitled thereto be an infant, or a person of 
    unsound mind and then within two (2) years after removal of such disability. 
    Proceedings for the causes mentioned in paragraphs 3 and 6 of Section 1031 
    of this title, shall be within three (3) years, and in paragraph 9 of 
    Section 1031 of this title, within one (1) year after the defendant has 
    notice of the judgment, decree or order. A void judgment, decree or order 
    may be vacated at any time, on motion of a party, or any person affected 
    thereby.
Plaintiff asserts that the three-year statute of limitations only applies to 
death of a party before judgment or the omission or mistake in obtaining the 
judgment. Section 1038 expressly applies the three-year limitation period to the 
causes in § 1031(3) as well.
¶15 Section 1038 provides that a motion to vacate based on § 1031(3) must be 
filed within three (3) years of the date the applicant attained notice of the 
judgment. 12 O.S. § 1038; 
Woods v. Computer Sciences Corp., 2011 OK CIV APP 17, ¶13, n.2, 247 P.3d 1201, 1205. Defendant 
filed an affidavit stating he first received notice of the judgment on or about 
June 26, 2012 when a copy of the garnishment was delivered to him in the mail. 
Plaintiff does not contradict this, and the record does not indicate the 
judgment was ever served as required by 12 O.S. 2011 § 696.2(B). Defendant's 
§ 1031(3) motion to vacate was filed October 10, 2012. Because this was within 
three years of the date Defendant had notice of the judgment, the motion was not 
time-barred.
V.
¶16 Default judgments are disfavored and courts may consider whether 
substantial hardship would result from granting or refusing to grant a motion to 
vacate. Ferguson, 2000 OK 78, 
¶5, 13 P.3d 480, 482. Despite 
procedural requirements designed to provide notice, Defendant was not served 
with a motion for default judgment or the judgment rendered against him. An 
abuse of discretion occurs when discretion is exercised to an end or purpose not 
justified by, and clearly against, reason and evidence. Patel v. OMH Medical 
Center, Inc., 1999 OK 33, 
¶20, 987 P.2d 1185, 1194. The 
trial court abused its discretion when it denied Defendant's motion to vacate 
the default judgment.
¶17 The December 7, 2012 journal entry is REVERSED. The trial court is 
instructed to vacate the April 4, 2001 default judgment and the July 13, 2001 
judgment awarding damages. The case is REMANDED for further proceedings.

BELL, P.J., and MITCHELL, J., concur.

FOOTNOTES

1 The 
July 13, 2001 judgment was against Defendant and Lillian Harting. Although 
Defendant argued Lillian Harting died before the petition was filed, the record 
indicates service of process was made at Lillian's residence by certified mail, 
there is no suggestion of death on the record with proof of death pursuant to 12 O.S. 2011 § 2025(A)(1), and no 
representative of the estate moved for substitution or dismissal. This Court has 
appellate jurisdiction.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2005 OK CIV APP 93, 125 P.3d 1233, COULSEN v. OWENSDiscussed 2011 OK CIV APP 17, 247 P.3d 1201, WOODS v. COMPUTER SCIENCES CORP.Discussed at Length 2011 OK CIV APP 29, 249 P.3d 526, GENOFF FARMS, INC. v. SEVEN OAKS SOUTH, LLCDiscussed at LengthOklahoma Supreme Court Cases CiteNameLevel 2000 OK 78, 13 P.3d 480, 71 OBJ        2590, FERGUSON ENTERPRISES, INC. v. H. WEBB ENTERPRISES, INC.Discussed at Length 1997 OK 132, 954 P.2d 124, 68 OBJ        3523, ENOCHS v. MARTIN PROPERTIES, INCDiscussed 1999 OK 33, 987 P.2d 1185, 70 OBJ        1353, Patel v. OMH Medical Center, Inc.DiscussedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 2005.2, Entry of Appearance, Out-of-State Counsel, Address of Record and WithdrawalCited 12 O.S. 696.2, Judgment, Decree or Appealable Order to be Written - Preparation of Written Documents - Filing - Mailing - EffectCited 12 O.S. 1031, District Court, Power to Vacate or Modify its Judgments, WhenDiscussed at Length 12 O.S. 1032, Proceedings to be by Motion, When - Time for MotionCited 12 O.S. 1038, Proceedings to Vacate or Modify a Judgment, Decree or OrderDiscussed 12 O.S. 2025, Substitution of PartiesCited










