Opinion
146825; CA A81354
Argued and submitted July 5, 1994
Appeal dismissed October 12, 1994
Appeal from Circuit Court, Marion County.
Duane R. Ertsgaard, Judge.
Darrell E. Bewley argued the cause for appellant. With him on the brief was Estell and Bewley.
Rolf C. Moan, Assistant Attorney General, argued the cause for respondent Department of Human Resources. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
No appearance by obligee — respondent Lori D. Kuschnick.
Before Warren, Presiding Judge, and Edmonds and Landau, Judges.
WARREN, P.J.
Appeal dismissed.
Father appeals from an order denying his motion to vacate an ex parte order obtained by the Department of Human Resources (DHR) to withhold workers' compensation benefits. We dismiss the appeal.
Father was injured at work and entered into a settlement of that claim with the insurer. The terms of the agreement provided that father would release his right to temporary and permanent disability, vocational rehabilitation and survivor's benefits in exchange for a lump sum payment. DHR filed a motion ex parte, seeking an order directing the insurer to withhold 25 percent of the settlement, because father owed past-due child support payments. The trial court granted the motion and father did not appeal. More than seven months later, father moved to vacate the ex parte order, contending that "the order rendered is not supported by statute or finding of fact, and therefore is invalid and voidable and should be set aside." The trial court denied the motion.
The threshold issue is whether we have jurisdiction. ORS 19.010(2) provides, in part:
"For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:
"* * * * *
"(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree."
Although the trial court's order denying father's motion fits within the literal terms of that statute, it is well established that an order denying a motion to vacate an appealable order or judgment is not appealable. Columbia Auto Works v. Yates, 176 Or. 295, 156 P.2d 561 (1945); Fehrenbacher v. Fehrenbacher, 76 Or. App. 244, 246, 708 P.2d 1197 (1985). Father could have raised the issues raised in his motion on direct appeal, but he did not.
There are two exceptions to the general rule. Neither applies in this case.
Appeal dismissed.