LAW MARKS: Mark Johnson's occasional--and occasionally irreverent--review of recent developments in family law and civil procedure. For December 2002, topics include appellate procedure issues, the status of stock options for child support purposes, and the statute of limitations for an injury inflicted between husband and wife.
The Court of Appeals wrote two interesting appellate procedure opinions in November. The first was Cessna v. Chu-R & T, Inc., decided on November 13. In that case, the court held that a trial court order allowing an appeal from an arbitration award could not be immediately appealed to the Court of Appeals. Even though the order prevented entry of judgment on the arbitration award, at least temporarily, it was not an order "preventing a judgment" in the underlying action as contemplated by ORS 19.205(2)(a).
On November 20, in State v. Jury, the court extended the "plain error" doctrine to encompass an evidentiary ruling that appeared to be correct when it was made, but later turned out to be incorrect in light of subsequent case law development. The state collected evidence using an informant wearing a body wire and without court authorization. The defendant objected to admission of the evidence, but not on that basis. The evidence was admitted. The Court of Appeals agreed to hear the defendant's claim of error, even though it was not properly preserved at trial, because the Supreme Court held in a different case in the meantime that a court order was required before using a body wire to intercept communications.
The Pennsylvania Superior Court held in Mackinley v. Messerschmidt that unvested stock options represented a form of "compensation for services" under the Pennsylvania definition of "gross income" and must be included in income when calculating child support. One judge dissented, arguing that the value of the options was speculative until they were exercised. Oregon's definition of "gross income" contained in OAR 137-050-0340 does not contain the "compensation for services" language but arguably is broader than the Pennsylvania statute. The Pennsylvania court did not address whether a rebuttal of the presumed support amount might be appropriate in these circumstances.
In Beller v. Easterbrook, the Georgia Supreme Court held that the husband's denial that he infected the wife with genital herpes tolled the statute of limitations for personal injury until the husband's fraud was revealed. The confidential relationship existing between husband and wife, the court held, entitled the wife to rely on the husband's representations during the marriage that he did not have the disease and could not have infected her.
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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