LAW MARKS: Mark Johnson's occasional--and occasionally irreverent--review of recent developments in family law and civil procedure. For November 2003, topics include the homestead exemption and a grab-bag of evidentiary and procedural issues.
The Court of Appeals ruled in Maresh and Maresh that the husband could not claim a homestead exemption in the former marital home against the wife's enforcement of the property judgment she obtained in the dissolution. Marital dissolution in Oregon is analogous to a partition of jointly owned property, and giving one party a judgment clouded by a homestead exemption would not result in a "just and proper" property division between the parties.
The Supreme Court elucidated Oregon's constitutional "harmless error" doctrine in State v. Davis. The Constitution states that no judgment may be reversed if the appellate court determines that the judgment "was such as should have been rendered in the case." The court interpreted this language to mean that a judgment must be affirmed, despite legal error, if there was "little likelihood that the particular error affected the verdict." In making that determination, the court should consider the nature and the context of the error as well as its impact on the appellant's ability to present its theory of the case.
The Supreme Court has accepted review in Yancy v. Shatzer, which the Court of Appeals dismissed in January on grounds of mootness. "On review, the issue is whether Oregon courts can decide moot cases that are 'capable of repetition, yet evading review,' or that raise an issue of public concern."
The Court of Appeals decided an interesting civil procedure issue in Palmquist v. Flir. In that case, the trial judge filed an order granting the defendant's motion for summary judgment, but, before the order could be entered, the plaintiff filed a voluntary dismissal. If successful, the dismissal would allow the plaintiff to refile the case, perhaps in a more favorable forum. The court looked to the legislative history of ORCP 54 to find that the rule permitted a voluntary dismissal in these circumstances, and noted that, under the rule, the plaintiff could take a voluntary dismissal only once without prejudice to refilling.
The American Bar Association has published a second edition of Balancing Competing Interests in Family Law. This little handbook is a goldmine of information about conflicts between domestic relationships and third-party interests. The topics covered include discovery, evidentiary privileges, third-party interests in marital property, the rights of children, and the rights of stepparents and other third parties in custody and visitation.
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
Home | About Us | Family Law | News | Contact Us | Directions/Parking | Site Map