LAW MARKS: Mark Johnson's occasional--and occasionally irreverent--review of recent developments in family law and civil procedure. For October 2004, topics include child support liability for a lesbian co-parent, preservation of error for appeal, and the courts' jurisdiction for deciding cases that have become moot.
Anyone still unsure whether to vote "no" on Constitutional Amendment 36 on the November ballot should look no further than the decision of the Supreme Judicial Court of Massachusetts in T.F. v. B.L. In that case, the Massachusetts high court held that one former lesbian domestic partner had no obligation to the other partner for support of the parties' child. The court found that the other partner had agreed to become a parent in exchange for the mother's agreement to conceive and bear the child, but then held that the agreement was unenforceable and against public policy.
The case provides a graphic illustration of the price of excluding same-sex couples from marriage. We regard it as unthinkable that one married partner should be able to leave the parties' children without a source of support. But this Massachusetts high court case shows us how easy it is for a partner to do exactly that when the couple is not married.
One of the grounds for a new trial listed in ORCP 64 is "accident or surprise that ordinary prudence could not have guarded against." In Mitchell v. Mt Hood Meadows, the Court of Appeals observed that the proper response to a "surprise" during the trial is a motion for a continuance. "A party that is aware of a ground for a new trial during trial may not speculate on the result by failing to bring the issue to the court's attention, intending to use the issue to seek a new trial if the outcome is not favorable."
The Supreme Court overruled a line of its own cases extending back over fifty years and held in Yancy v. Shatzer that Oregon courts have no power to decide moot cases that are "capable of repetition, yet evading review." The court's conclusion is at odds with the law in all 49 other states and in the federal courts.
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.
Please share this newsletter with your colleagues. If you want to receive your own e-mailed copy of the newsletter in the future, please contact me and we'll add your name to the distribution list.
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.
Please share this newsletter with your colleagues. If you want to receive your own e-mailed copy of the newsletter in the future, please contact me and we will add your name to the distribution list.
Johnson & Lechman-Su PC, 1200 Weatherly Building, 516 SE Morrison Street, Portland, Oregon 97214
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