LAW MARKS: Mark Johnson's occasional--and occasionally irreverent--review of recent developments in family law and civil procedure. For April 2003, topics include spousal support modification, attorney liens, a variety of judgment set-asides and interstate issues, and a child marriage in Nevada.
The Supreme Court allowed review on February 11 in Weber and Weber. In that October decision, reported in the November Law Marks, the Court of Appeals affirmed an increase in spousal support where the only change of circumstances was an improvement in the payer's financial position. The Supreme Court held in Strickland v. Strickland (1948) that a spousal support modification should maintain the supported spouse in a lifestyle similar to the one that would have been enjoyed but for the divorce. In Feves v. Feves (1953), the court held precisely the opposite. Weber provides an opportunity to clear up the conflict.
In Potter v. Schlesser Co., Inc., decided on February 21, the Supreme Court confirmed that an attorney may enforce a lien for fees against the opposing party when that party settles privately with the attorney's client and without the attorney's knowledge. Although that holding might not seem surprising in light of the plain wording of ORS 87.475, in fact, Potter cleans up a messy line of case law that holds to the contrary.
The Court of Appeals held in Kneefel v. McLaughlin, decided on March 20, that the US Supreme Court's decision in Troxel v. Granville was not an "extraordinary circumstance" sufficient to justify setting aside a stipulated judgment for third-party visitation. This is the first case in which the Court of Appeals has upheld a third-party visitation order against a constitutional challenge, although it was decided on a procedural issue and not on the merits of the constitutional argument.
Where personal jurisdiction is raised and litigated in a sister state's courts, the issue is res judicata in Oregon. The Court of Appeals ruled that a foreign judgment could not be collaterally attacked in Oregon for lack of personal jurisdiction in the foreign state, where the other state had already ruled that it did have jurisdiction. The case was D.K. Realtek, Inc. v. Warren, decided on April 3.
The Supreme Court of Montana ruled February 18 in Stoneman v. Drollinger that a state trial court ought to have declined child custody jurisdiction where the father had repeatedly abused the mother and the mother had sought refuge, along with the children, in Washington. The court's opinion contains a nice analysis of the history and inter-relationship between the Uniform Child Custody Jurisdiction Act, the Parental Kidnapping Prevention Act, and the Uniform Child Custody Jurisdiction and Enforcement Act.
The Nevada Supreme Court has approved the marriage of a 15-year-old child to her 48-year-old guitar teacher upon the consent of one of the parents. The mother, the child, and the guitar teacher traveled to Nevada for the wedding because the marriage would be illegal in their home state. In Kirkpatrick v. Dist. Ct., decided on March 14, the court held that the Nevada statute permitting such a marriage upon the court's approval did not violate any constitutional right of the father as the joint custodial parent.
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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