Johnson & Lechman-Su: Family Law

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JRL-S LEGAL UPDATE is an occasional newsletter reviewing recent developments in family law and civil procedure. For February 2008, topics include elective circumcision, violation of the bankruptcy stay, Oregon’s revision of the law of judgments, and enforcement of a surrogacy agreement in Minnesota.

The Supreme Court has held that a 12-year-old child’s own views must be considered in a dispute between his parents over whether he should be circumcised in an elective procedure dictated by the custodial father’s religious beliefs. In Boldt and Boldt, the court remanded for the trial court to hold a hearing on the question of whether the child agreed or objected to the circumcision. That fact, the court held, was relevant to determine whether a change in circumstances had occurred that would justify revisiting the issue of the child’s legal custody.

The court avoided any examination of the merits of the circumcision issue itself, going so far as to hold that “the decision to circumcise a male child is one that generally falls within a custodial parent’s authority, unfettered by a noncustodial parent’s concerns or beliefs—medical, religious, or otherwise.” The case is interesting in light of the Oregon courts’ recent willingness to insert themselves into parental disputes over where a child will live—also a decision historically made by custodial parents. Just as interesting, the Court of Appeals affirmed without opinion in Boldt, despite the undeniable relative magnitude of the decisions the custodial parents proposed to make in the two situations. It remains to be seen whether calling a residential move a change of circumstances, and elective genital modification not a change of circumstances, represents a stable doctrinal position for Oregon courts.

In Cam and Cam, the Court of Appeals raised on its own initiative the question of whether a dissolution property division was void when it was entered in violation of the “automatic stay” provision of the federal Bankruptcy Code, 11 USC § 362(a). Concluding that the property division was void, the court affirmed a trial court order that set the judgment aside for a different reason. The court reasoned that the entire judgment should be set aside so that all the issues in the dissolution, including support questions, could be decided together.

The court decided another case examining the various procedural repercussions from the legislature’s revision of the law of judgments in 2003 and 2005 In Interstate Roofing, Inc., v. Springville Corp., the court first held that a “limited judgment” was appealable when entered, because it finally disposed of “at least” one claim in the case. The court found it unnecessary for the judgment to use the specific word “adjudged” in disposing of the claim, and noted that such partial judgments no longer needed—as they did under prior law—to recite that there was “no just reason for delay.”

The court held that consolidating cases for trial did not make a final judgment in one of them inconclusive and therefore unappealable. The court observed that a general judgment dismissed with prejudice all claims not previously adjudicated, but that a general judgment of dismissal, unlike other general judgments, dismissed such claims without prejudice to re-filing. Finally, the court held that a supplemental judgment must follow a general judgment in time. The effect of this is that parties or claims adjudicated in a limited judgment are not ripe for entry of attorney fee or costs judgments until after the general judgment as to the other parties or claims.

Analyzing a gestational surrogacy agreement under Illinois law, the Minnesota Court of Appeals in P.G.M. v. J.M.A. upheld the agreement and found that the genetic father was the child’s legal parent and that the gestational carrier was not. The court’s unpublished opinion found that the genetic father had rebutted the statutory presumption of the carrier’s maternity, which arose from the facts of the child’s birth, by introducing evidence that the child was conceived in vitro from an anonymous egg donor and that the carrier was genetically unrelated to him.

JRL-S LEGAL UPDATE is authored by Mark Johnson, a shareholder and appeals attorney at Johnson & Lechman-Su PC in Portland, Oregon. Mark provides attorneys with legal ethics advice as well as coaching, consulting, and collaboration on a wide range of family law issues. He is available to act as a reference judge in Oregon family law cases.

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