LAW MARKS: Mark Johnson's occasional--and occasionally irreverent--review of recent developments in family law and civil procedure. For September 2002, topics include third-party visitation rights, the use of life insurance to secure spousal support, and modification of spousal support following the obligor's bankruptcy.
Enact in haste, repent at leisure... In the 2000 case of Troxel v. Granville, the United States Supreme Court held unconstitutional Washington's grandparent visitation statute. The decision called into question the constitutionality of non-parent visitation statutes adopted in some version in all 50 states. The Court's plurality cited the Oregon statute--now repealed--as one that accorded appropriate deference to the rights of natural parents.
On August 14, the Oregon Court of Appeals held in Williamson v. Hunt that the former grandparent visitation statute and, by implication, the version of the "psychological parent" that was in effect at the time of the Troxel decision, were both constitutional. One is left only to hope that Oregon's statutes are still constitutional after the so-called "Troxel fix" that was rushed through in the closing days of the 2000 legislative session.
The Court of Appeals of Iowa, in an unpublished decision in Warner v. AIG Life Ins. Co., held
that a divorce judgment, by making the wife the "owner and sole beneficiary" of the husband's life insurance policy in order to "secure" her spousal support obligation, entitled her to only so much of the proceeds as would pay the obligation remaining at the time of the husband's death. Our own Court of Appeals made a similar decision in Hayter v. Hayter in 1973. Also still floating around in Oregon case law is the 1984 decision in Tannler and Tannler, in which the Court of Appeals holds that a divorcing spouse is not entitled to any life insurance to secure spousal support, because spousal support is not payable after death.
In Lynn v. Shirey, the Court of Appeal of California ruled that the wife's spousal support could be increased after the husband discharged her property division judgment in bankruptcy. The appellate court reversed the trial court's award of the entire principal amount of the judgment in the form of spousal support, holding that the modified support award must consider the husband's ability to pay as well as the wife's increased need.
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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