LAW MARKS: Mark Johnson's occasional--and occasionally irreverent--review of recent developments in family law and civil procedure. For May 2004, topics include post-marital agreements, waiver of support modification rights, the tort of interfering with child custody, and a court's disposition of an attorney's retainer upon his withdrawal from the case.
The Supreme Court has given us at least a broad hint about the status of post-marital agreements in Oregon. In Grossman and Grossman, the court declined to enforce a "post-nuptial property agreement" executed some 11 years before the wife filed for divorce. The court based its decision on the trial court's factual findings, but also responded to the husband's argument that pre-nuptial and post-nuptial agreements should be treated the same under the law.
The court pointed out simply that the legislature had adopted the Uniform Premarital Agreement Act, "while [adopting] no similar statute regarding agreements made between persons who are already married." The enforceability of post-marital or property settlement agreements is determined by reference to the dissolution court's responsibility to divide the parties' property in a manner that is "just and proper in all the circumstances."
The Court of Appeals has made a most interesting decision in the support modification case of McInnis and McInnis. The court held that the enactment of ORS 107.104 in 2001 made a marital settlement agreement enforceable using contract remedies, even where it had been merged into a dissolution judgment. It then applied contractual waiver principles to determine that both parties, at the time of the divorce, had waived their statutory rights to seek a future modification of spousal support. The court distinguished similar Supreme Court precedent and reversed the trial court's judgment granting modification of the obligation.
The Supreme Court of Iowa has affirmed an award of money damages against a mother and in favor of the father for tortuous interference with child custody. The judgment in Wolf v. Wolf was for one dollar in compensatory damages (the maximum amount requested) and $25,000 in punitive damages. Our Supreme Court recognized a similar cause of action in McBride v. Magnuson, decided in 1978, although it appears that no Oregon appellate decision has applied the principle to a dispute between a child's parents.
In Fischer v. Fischer , the Appellate Division of the New Jersey Superior Court upheld a family court judge's order that a withdrawing attorney be required to return his retainer to the wife. The appellate court relied on the family court's equitable jurisdiction over all of the marital property, as well as what it found was as the trial court's authority to set conditions on the attorney's withdrawal. The court took care to note that it was not deciding any fee dispute that might arise between the lawyer and client, but simply making the funds available to the client for retaining a new attorney.
Mark Johnson is an appeals attorney practicing in Portland, Oregon. He also provides attorneys with legal ethics advice as well as 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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