LAW MARKS: Mark Johnson's occasional--and occasionally irreverent--review of recent developments in family law and civil procedure. For January 2003, topics include "commingling" property and assessing child support against a non-relative parent.
In Triperinas and Triperinas, decided on December 11, the Court of Appeals implicitly reminded us once again not to file marginal family law appeals. Neither party was of substantial means. The trial court declined on equitable grounds to award the husband a $12,000 property equalization judgment. He appealed. The court of appeals, accepting that he was entitled to a property judgment of $43,500, also declined on equitable grounds to award one.
The Triperinas decision also reiterated that a family court has full equitable powers, ORS 107.405, and consequently may award any relief authorized by statute, whether or not a party has specifically pleaded for a particular form of relief. The court affirmed the award of spousal support over the husband's objection that the wife did not request spousal support in her pleading.
The Supreme Court has accepted review in Kunze and Kunze, decided by the Court of Appeals in May and reported in Law Marks in July. In Kunze, the wife owned certain property before the marriage that she later transferred to joint ownership, and she inherited other property during the marriage, some of which she invested in joint assets and other of which she kept separate. The marriage itself extended for 20 years. The Supreme Court's press release describes the issue on review as "commingling": what is it and why does it matter?
The press release also refers to Massee and Massee, the court's magnum opus on the presumption of equal contribution. In Van Horn and Van Horn, decided in November, the Court of Appeals puzzled openly over the interaction between the statutory presumption and the "commingling" case law originating from the Supreme Court's 1982 decision in Jenks and Jenks.
The Superior Court of Pennsylvania has affirmed an equitable award of child support against a lesbian co-parent who is not the children's legal mother. The co-parent brought suit for custodial rights over the parties' five children, and obtained an award of joint custody and parenting time on a theory of in loco parentis. The appellate court noted that "the rights and liabilities arising out of [the in loco parentis] relationship are the same as between parent and child." It held that the co-parent was estopped to deny liability for child support based on her joint parenting commitment with the mother and her action in bringing suit for custodial rights. The case is L.S.K. v. H.A.N, decided on December 17.
Mark Johnson is an appeals attorney practicing in Portland, Oregon. He also provides attorney coaching, consulting, and collaboration on a wide range of family law issues. Mark is available to act as a reference judge in Oregon family law cases.
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