Articles Posted in Family Law

by
In consolidated juvenile dependency cases, father appealed judgments changing the permanent plans for one of his children from reunification with a parent to guardianship and for another child from reunification to another planned permanent living arrangement. Father argued that his trial counsel was inadequate for failing to appear on his behalf at the hearing in which the juvenile court decided to change the permanent plans. The issue this case presented for the Supreme Court's review centered on whether a parent could raise a claim of inadequate assistance of counsel for the first time on direct appeal from judgments changing the permanent plans for his children from reunification with a parent to permanent plans of guardianship and APPLA. After review, the Supreme Court answered that question in the affirmative. The Court concluded: (1) the unchallenged rationale of "Oregon ex rel Juv. Dept. v. Geist" (796 P2d 1193 (1990)), was applicable to a direct appeal from judgments that make such changes in the permanent plans for children who were wards of the court in dependency cases; and (2) the legislature’s enactment, following the Supreme Court's decision in "Geist," of a statute that provided a juvenile court procedure for modifying or setting aside a dependency judgment while an appeal from the judgment was pending, did not obviate the need for a direct appeal remedy for father’s claim of inadequate assistance of counsel. View "Dept. of Human Services v. T. L." on Justia Law

by
The issue this case presented for the Oregon Supreme Court's review was whether discovery of the parties’ assets had to be provided in a marital dissolution action after the parties entered into a settlement agreement, but before the trial court has ruled on a contested motion to enforce the agreement. Upon review of the trial court record, the Supreme Court concluded that the trial court in this case did not satisfy its duty under ORS 107.105(1)(f)(F) to ensure that the parties had fully disclosed their assets before it decided the husband’s motion to enforce a mediated agreement and entered a judgment of dissolution based on that decision. Accordingly, the Court reversed that portion of the decision of the Court of Appeals that upheld the trial court’s discovery ruling, vacated the remainder of the Court of Appeals’ decision, and reversed the judgment of dissolution. The case was remanded to the circuit court for further proceedings. View "Pollock v. Pollock" on Justia Law

Posted in: Family Law

by
The issue this case presented for the Oregon Supreme Court's review centered on two issues: whether the legal presumption described in "Troxel v. Granville," (530 US 57 (2000) (plurality opinion)), that a fit parent acts in the best interests of her child, applied to a modification proceeding in which petitioner-mother sought to modify a stipulated dissolution judgment that granted legal custody to respondent-grandmother; and (2) whether mother had to demonstrate a substantial change in circumstances to modify the dissolution judgment. Daughter, who was approximately seven years old at the time of the hearing on mother's motion, lived with her paternal grandmother for her entire life. Mother and father lived with grandmother in Oregon when daughter was born in 2003. When daughter was approximately six months old, mother and father separated, father left Oregon, and mother and daughter continued to live with grandmother. Three months after the separation, mother moved out of grandmother's residence and left daughter in grandmother's sole care. In the months that followed, mother struggled with depression, started drinking alcohol heavily, and was unable to maintain steady employment. Mother then decided to move to Virginia. Before mother moved, father and grandmother engaged legal counsel, who prepared the marital settlement agreement. Mother first filed a motion to modify custody in 2006 but voluntarily dismissed that motion. Two years later, in 2008, she filed a second motion to modify custody and, in the alternative, to modify parenting time and child support. That 2008 motion is the filing at issue in this case. The trial court denied mother's motion to modify the judgment and grant custody to her based on the change-in-circumstances rule and the best interest of the child, and the Court of Appeals affirmed. Upon review, the Oregon Supreme Court affirmed the Court of Appeals, but based on different reasoning. The Court concluded that: (1) mother was not entitled to the Troxel presumption that her custody preference was in the child's best interest; and (2) mother was not prejudiced when she was held to the substantial change-in-circumstances rule. Ultimately, the Court affirmed the trial court's determination that a modification of the custody provisions of the judgment was not in the best interest of the child. View "Epler v. Epler" on Justia Law

Posted in: Family Law

by
In this case, the trial court granted wife’s petition for a restraining order against husband and entered that order in the trial court register on May 9, 2013. On June 10 2013, husband’s attorney filed a notice of appeal and served a copy of that notice by mailing it to wife. Husband’s attorney did not serve a copy of the notice on wife’s attorney, even though ORCP 9 B required him to do so. Eight days later, the Court of Appeals sent a "deficiency notice" to husband stating that the case caption in the notice of appeal was incorrect. The Court of Appeals sent a copy of the deficiency notice to wife, who emailed a picture of it to her attorney. Shortly after wife’s attorney learned that husband had filed a notice of appeal, wife moved to dismiss husband’s appeal because the Court of Appeals lacked jurisdiction. The Appellate Commissioner agreed and dismissed husband’s appeal. The Chief Judge of the Court of Appeals denied husband’s motion for reconsideration, and the Supreme Court allowed husband’s petition for review to consider whether his failure to comply with ORCP 9 B was a jurisdictional defect. On review, husband noted that the plain text of the jurisdictional statutes required that an appellant serve a copy of the notice of appeal on the other "parties" to the case. In husband’s view, those statutes define what a party must do to confer jurisdiction on the Court of Appeals, and he complied with them. He timely served the only other "party" to the action (his wife) with a copy of the notice of appeal. In its analysis of the controlling case law pertinent to this case, the Supreme Court ultimately agreed with the Court of Appeals and affirmed its dismissal of husband's appeal. View "J. A. H. v. Heikkila" on Justia Law

by
Mother and father are the parents of eight children, who ranged in age from one to ten years old when this case began. After a neighbor notified DHS about the conditions in parents' home, a DHS caseworker checked on those conditions, spoke with parents, and also spoke with the children. DHS filed a petition with the juvenile court, alleging that the children were within the court's jurisdiction because the "condition or circumstances [of the children were] such as to endanger [the children's] welfare or others[' welfare]." The juvenile court took jurisdiction over parents' children and appointed DHS as the children's legal custodian and guardian while the children were wards of the court. The question before the Supreme Court in this case was whether the legislature gave DHS, in its capacity as either the children's custodian or their guardian, authority to have the children immunized against common childhood diseases. Both the trial court and the Court of Appeals held that the legislature gave DHS that authority. The Court allowed parents' petition for review and affirmed the Court of Appeals' and trial court's judgments. View "Dept. of Human Services v. S. M." on Justia Law

by
The parties were married for 21 years. At the time of trial, husband was 51 and wife was 53. Husband was a practicing attorney with the Army Corps of Engineers. Wife worked at the Bonneville Power Administration. Both parties were beneficiaries of federal retirement benefits. Because wife was eligible for Civil Service Retirement System (CSRS) benefits, she was not eligible for Social Security benefits based on her own employment. Husband's civilian federal employment was under the Federal Employees Retirement System (FERS) and subject to Social Security taxes. The question presented in this case was whether federal law forbid a division of property by which the value of retirement benefits belonging to the nonparticipating spouse is reduced by the present value of hypothetical Social Security benefits to which that spouse would have been entitled if she had been a Social Security participant. Because the Supreme Court concluded that the trial court did not violate federal law by "considering" Social Security benefits in that way, it affirmed that court's decision. View "Herald v. Steadman" on Justia Law

by
Father sought review of a judgment for unpaid past child support. In the judgment document, the circuit court imposed judgment for the unpaid installments and accrued interest on each installment, and postjudgment interest on both the amount of the unpaid installments and the accrued interest. The Court of Appeals affirmed. The Supreme Court surmised the outcome of this case hinged on the application of two paragraphs of ORS 82.010(2). The trial court relied on the language in paragraph (2)(c). The Supreme Court concluded, however, that the interest at issue in this case was not interest to which ORS 82.010(2)(c) referred. After an initial judgment is entered requiring payment of child support in future recurring installments, interest on unpaid installments is postjudgment, not prejudgment interest, and is not governed by paragraph (2)(c) of ORS 18 82.010. View "Chase v. Chase" on Justia Law

Posted in: Family Law

by
In February 2005, the parties stipulated to a judgment dissolving their marriage. At that time, the parties had been married for seven years and had two minor children, then ages four and six. The judgment provided that the parties would have joint legal custody of their children, with mother having primary physical custody and father having reasonable parenting time. It also required that father pay child support of $1,750 per month, which exceeded by $8 the presumptively correct amount indicated by application of the Oregon Child Support Guidelines Formula (Child Support Formula). The judgment provided that neither party would seek modification of that support obligation. The issue before the Supreme Court was whether that stipulation could be enforced. And after review, the Court concluded that the trial court did not err in enforcing the parties' nonmodification agreement in accordance with Oregon law. View "Matar v. Harake" on Justia Law

by
In this juvenile dependency proceeding, a father was found by the court to have subjected one of his children to sexual abuse. Although the child was unavailable to testify at the proceedings, the juvenile court admitted into evidence child's out-of-court statements. Father contended that the juvenile court's theory for admitting the statements - that they were the statements of a party-opponent and, therefore, not hearsay -was a fundamental misunderstanding of the evidence rule pertaining to statements of party-opponents. Furthermore, Father argued that the court's admission of child's out-of-court statements under OEC 801(4)(b)(A) violated his (father's) right to due process and to a proceeding that was fundamentally fair. Upon review, the Supreme Court agreed with father that the juvenile court erred in admitting the child's statements under OEC 801(4)(b)(A), and concluded that the error was not harmless. Accordingly, the Court reversed the juvenile court's judgments and remanded the case for further proceedings. View "Dept. of Human Services v. G. D. W." on Justia Law

by
At issue in this dependency case was the lawfulness of a juvenile court order that required a father not to interfere with the ability of a child who is a ward of the court to visit other children who live with the father but are not wards of the court. The Court of Appeals concluded that the juvenile court possessed the authority to enter the order under ORS 419B.337(3). "J.R.F," the Father in this case, contended that the Court of Appeals erred in its holding, because the order at issue did not involve visitation "by the parents or the siblings." The Department of Human Services (DHS) contended that the Court of Appeals was correct, because, although ORS 419B.337(3) did not explicitly authorize the order at issue, the dependency statutes, taken as a whole, authorized the court to "make any order designed to further the best interest of a ward and advance the reunification of the family." Upon review of the matter, the Supreme Court concluded that even if the state was correct about the scope of the authority that the statutes conferred on the juvenile court, the record in this case was inadequate to support the order at issue. The Court therefore reversed the opinion of the Court of Appeals and vacated the order of the juvenile court. View "Dept. of Human Services v. J. R. F." on Justia Law