Opinion
D8911-69045; CA A72726
Argued and submitted January 25, 1993
Reversed; original stipulated judgment reinstated May 12, 1993
Appeal from Circuit Court, Multnomah County.
Elizabeth Welch, Judge.
Jeanette Bello, Portland, argued the cause for appellant. With her on the brief was Dobbins McCurdy, Portland.
Doreen Stamm Margolin and Margolin Margolin, Portland, filed the brief for respondent.
Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.
LEESON, J.
Reversed; original stipulated judgment reinstated. No costs to either party.
Husband appeals a dissolution judgment that was entered after the trial court granted wife's motion to set aside the original stipulated dissolution judgment. We reverse, and reinstate the original stipulated judgment.
The stipulated judgment was entered May 22, 1991. It dissolved the 21-year marriage and awarded husband the parties' home and custody of the younger of their two sons. At that time, the older son was attending college in another state. Shortly thereafter, the older child returned to Oregon to live with husband. The two children got into fights that injured the younger child, who then went to live with wife. On June 24, 1991, wife moved under ORCP 71B to set aside the dissolution judgment, because she had agreed to give up her interest in the parties' home in the belief that husband would be the sole support for the younger child. The trial court granted the motion. Following trial, the court entered a new dissolution judgment ordering the home sold and the liquidated assets divided equally between husband and wife.
Husband assigns error to the order granting wife's motion to set aside the stipulated dissolution judgment. We review that ruling for abuse of discretion. Kachaturian and Kachaturian, 58 Or. App. 497, 648 P.2d 1313 (1982).
Although a property division may not be modified under ORS 107.135(1)(a), Rousseau and Rousseau, 76 Or. App. 528, 709 P.2d 764 (1985), a dissolution judgment, including the property division, may be set aside under ORCP 71. Renninger and Renninger, 82 Or. App. 706, 711, 730 P.2d 37 (1986); Eltzroth and Eltzroth, 67 Or. App. 520, 679 P.2d 1369 (1984). Wife argues that the ruling granting her motion was within the trial court's discretion either on the ground of mistake, ORCP 71B(1)(a), or that it was no longer equitable that the judgment have prospective application. ORCP 71B(1)(e).
In general, ORCP 71B(1)(a) and (e) provide grounds to set aside a judgment. However,
"[a] stipulated judgment * * * is a contract that has been approved by a court. It can only be set aside on grounds adequate to rescind a contract. It follows that wife[, as the moving party,] has to show by clear and convincing proof that husband committed fraud or misconduct, that there was a mutual mistake or that there was no agreement." Erwin and Erwin, 100 Or. App. 64, 67, 784 P.2d 1109 (1990). (Citations omitted.)
Wife's sole argument for rescission here is that the contract was based on mutual mistake of fact, because the parties incorrectly assumed that the younger child would be living with husband.
Mutual mistake is a ground for rescission where the parties are mistaken as to the facts existing at the time of the contract, if the mistake is so fundamental that it frustrates the purpose of the contract. Shop. Centers v. Stand. Growth Prop., 265 Or. 405, 411, 498 P.2d 781, 509 P.2d 1189 (1973). Wife does not argue that the parties were mistaken as to the facts existing at the time they entered into the contract. She argues that circumstances changed, and an unanticipated fact arose after the parties entered into the contract. That does not establish grounds for rescission based on mutual mistake of fact.
Reversed; original stipulated judgment reinstated. No costs to either party.