Johnson & Lechman-Su: Legal Update

JRL-S LEGAL UPDATE is an occasional newsletter reviewing recent developments in family law and civil procedure. For April 2008, topics include division of separately acquired property upon divorce, status reports on same-sex marriage and Oregon’s new domestic partnership statute, and some interesting bits of civil procedure trivia.

In Olsen and Olsen, the Court of Appeals applied the Supreme Court’s Kunze property division methodology to determine that the husband had rebutted the presumption of equal contribution with regard to his inheritance of a parcel of land, but not with regard to the subsequent appreciation of the same parcel. The court divided the appreciation equally and then gave the wife 25 percent of the value of the original inheritance as a matter of equity. One wag has already called me to ask if this may represent a new “Tsukamaki rule” of equitable division: If 50 percent is too much, and zero is too little, is 25 percent just right? “Splitting the baby,” of course, is a tradition passed down in our profession from the time of King Solomon. Does the “Tsukamaki rule” have legs? Only time will tell.

In Lemons v. Bradbury, the plaintiffs brought a constitutional challenge to the method by which Oregon’s Secretary of State reviewed the signatures on a referendum petition directed at the Oregon Family Fairness Act, Oregon’s new registered domestic partnership law. US District Court Judge Michael Mosman found no constitutional violation and lifted a temporary restraining order, allowing the law to go into effect on February 1, 2008, one month later than the legislature had planned. Rumor has it that there will be an appeal to the Ninth Circuit Court of Appeals, although there has been no indication of a further stay.

In a somewhat remarkable decision, the Appellate Division of the New York Supreme Court held in two sentences that a marriage between two people of the same sex did not violate “natural law.” Consequently, the court held in Martinez v. County of Monroe that New York would accord recognition to the plaintiffs’ marriage, which they legally contracted in Canada. A trial court judge in a different case has subsequently denied a motion to dismiss a petition for dissolution of a Canadian same-sex marriage, based in part on the Martinez precedent.

Proving, if it had to be shown, that it’s never too late to learn the little niceties of civil procedure, the Court of Appeals reversed one judgment for lack of a certificate of compliance under UTCR 5.010, and a second judgment because the trial court did not follow the service-by-mail rule of ORCP 10 C.

UTCR 5.010 requires attorneys filing certain motions to confer with their adversaries beforehand and try to resolve the dispute without court intervention. If conferring would be futile, the certificate of compliance with the rule must so demonstrate. The sole remedy for failure to submit a certificate of compliance is denial of the motion. In Thomas Anderson v. State Farm Mut. Auto Ins. Co., the court rejected the futility defense where there was no proper certificate of compliance to show the facts supporting the claim of futility.

ORCP 10 C provides that, when a document is served by mail, the time for responding to the document is extended by three days. In McIntyre v. Feeman, the court held that the 14-day period allowed for an objection to an attorney fee statement was extended to 17 days because the statement was served by mail. The court determined that the trial court must hold a hearing on attorney fees after receiving a timely objection.

JRL-S LEGAL UPDATE is authored by Mark Johnson, a shareholder and appeals attorney at Johnson & Lechman-Su PC in Portland, Oregon. Mark provides attorneys with legal ethics advice as well as coaching, consulting, and collaboration on a wide range of family law issues. He is available to act as a reference judge in Oregon family law cases.

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