A husband and wife were divorced after five and one-half years of marriage.  The judgment of dissolution provided that the husband have sole custody of his four children and granted the wife lengthy “visitation” time with the children.  The judgment also prohibited both parties from smoking cigarettes around the children. One month after the dissolution judgment was entered, the husband filed a motion for contempt against his ex-wife for, inter alia, smoking around the children.  The Trial Court found her in contempt for “her failure to abide by provision 2.5 of the Judgment of Dissolution as she has subjected the parties’ children to secondhand cigarette smoke.”  The Court of Appeals of Oregon concluded that the trial court’s amended judgment granted relief materially varying from that sought in the pleading that was served on the wife and, thus, the judgment was the product of impermissible “surprise.”  The case was reversed and remanded for further proceedings.

144 Ore. App. 237, 925 P.2d 162 (1996).