Clarkston v. Bridge

• Court: Oregon Supreme Court
• Writing for the Court: HOWELL
• Citation: Clarkston v. Bridge, 273 Or. 68, 539 P.2d 1094 (Or. 1975)
• Decision Date: 05 September 1975
• Parties: , 81 A.L.R.3d 1166 Chiquita CLARKSTON, Petitioner, v. Michael BRIDGE, Respondent.

Page 1094

539 P.2d 1094

273 Or. 68, 81 A.L.R.3d 1166

Chiquita CLARKSTON, Petitioner, v. Michael BRIDGE, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 7, 1975.

Decided Sept. 5, 1975.

John Burgess, Asst. Atty. Gen., Salem, argued the cause for petitioner. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Solicitor Gen., Salem.

E. Jay Perry, of Luvaas, Cobb, Richards & Fraser, Eugene, argued the cause and submitted the brief for respondent.

HOWELL, Justice.

This is a proceeding under the Uniform Reciprocal Enforcement of Support Act (URESA), ORS ch. 110, in which plaintiff, a Washington resident, seeks support for her minor daughter from defendant, an Oregon resident. The trial court found defendant to be the father of the child and awarded plaintiff $75 per month support. The Court of Appeals reversed, Or.App., 75 Adv.Sh. 181, 530 P.2d 884, supplemental opinion Or.App., 75 Adv.Sh. 1279, 533 P.2d 815 (1975). We granted review to consider important questions concerning the interpretation of the URESA.

Plaintiff, an unwed mother in Kitsap County, Washington, sought support for her minor daughter from defendant, a resident of Lane County, Oregon. Pursuant to URESA, plaintiff filed her complaint in Kitsap County Superior Court, alleging that defendant was the father of her daughter and that he had failed to provide support for the child. The Superior Court, after examining the complaint, ordered it and the testimony of the plaintiff forwarded to the Lane County Circuit Court. ¹

Defendant was served in Lane County with an order to appear and show cause why he should not be ordered to provide support. He filed a motion to quash service of the order and a demurrer to the complaint, each alleging that there had been no prior adjudication of paternity and contending that the circuit court, in a URESA proceeding, lacked jurisdiction to establish paternity. The motion and demurrer were overruled.

At trial the defendant moved to have the entire case transferred to the jury docket to proceed as a filiation proceeding or, alternatively, for a jury determination of the paternity issue in the URESA proceeding. The motion was denied and, following a finding of paternity, the court awarded $75 per month for child support. ² On appeal, the Court of Appeals reversed the trial court and held that the circuit court lacked jurisdiction to determine paternity in a URESA proceeding. The court found that the URESA was limited to the enforcement of existing duties of support and, since there had been no prior determination of paternity in the instant case, there could be no existing duty of support to be enforced.

We disagree with the Court of Appeals' interpretation of the statute. The URESA is designed to provide an inexpensive, simplified and effective means whereby an obligee in one state can enforce the duties of support owed by an obligor in another state. Lefler v. Lefler, 218 Or. 231, 234--36, 344 P.2d 754 (1969). See also M_ _ v. W_ _, 352 Mass. 704, 706--07, 227 N.E.2d 469 (1967), and cases cited therein. Under the URESA the function of the trial court of the responding state (Oregon in this case) is to determine whether the respondent owes a duty of support and to provide for the enforcement of any duty so found. ORS 110.201 provides:

'If the court of the responding state finds a duty of support, it may order the respondent to furnish support or reimbursement therefore and subject the property of the respondent to such order.'

ORS 110.021(2) defines 'duty of support':

"Duty of support' includes any duty of support imposed or Imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance or otherwise.' (Emphasis added.) ³

Clearly then, the URESA authorizes both the finding and the enforcement of duties of support which have not been previously established in another proceeding. ⁴

Moreover, in determining whether the respondent owes a duty of support to an illegitimate child, the court must necessarily first decide whether the respondent is the child's father. Therefore, since ORS 110.201 authorizes the circuit courts to find, as well as to enforce, a duty of support in a URESA proceeding, the statutory authority to establish paternity in that proceeding seems clearly implied.

This construction of the URESA conforms to the interpretation which has been expressed by the drafters of the uniform statute. Professor Brockelbank, chairman of the committee which prepared the URESA, has stated that courts which have jurisdiction to adjudicate paternity cases, such as our circuit courts, should not hesitate to exercise that jurisdiction in a URESA proceeding.

'* * * Suppose the defendant enters as his defense that he is not the father of the children for whom support is sought. If the court having jurisdiction of the support case in the responding state is forbidden to decide paternity cases, that would seem to settle the matter. The Act gives the court no such jurisdiction. However, the court having jurisdiction of the support case usually has a wider jurisdiction which includes adjudication of paternity. If it does, there is nothing in the Act which prevents its deciding the issue in the support case. It would be dangerous to decide that the paternity issue could never be decided in the reciprocal case. If it were so decided, defendants would begin interposing such a defense as a subterfuge merely to avoid their obligations.' W. Brockelbank & F. Infausto, Interstate Enforcement of Family Support, 62 (2d ed 1971). (Emphasis added.) ⁵

Our interpretation of our statute is also in accord with the decisions of other states whose URESA is similar to Oregon's (See Sardonis v. Sardonis, 106 R.I. 469, 261 A.2d 22 (1970); Yetter v. Commeau, 84 Wash.2d 155, 524 P.2d 901 (1974); Brown v. Thomas, supra; and M_ _ v. W_ _, supra) as well as with the law of those states which have recently adopted the revised version of the URESA which explicitly authorizes the adjudication of paternity. ⁶ We also note that subsequent to the decisions of their courts in Nye v. District Court for County of Adams, 168 Colo. 272, 450 P.2d 669 (1969), Aguilar v. Holcomb, 155 Colo. 530, 395 P.2d 998 (1964), and Smith v. Smith, 11 Ohio Misc. 25, 224 N.E.2d 925 (1965), the cases relied upon by the Court of Appeals for the proposition that paternity may not be established in a URESA proceeding, the legislatures of both Colorado and Ohio enacted the revised version of the URESA to allow for a determination of paternity in their URESA proceedings. ⁷ Correspondingly, our decision also conforms to the legislative directive that the URESA is to be construed so as to maintain its uniformity from state to state:

'This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact the Uniform Reciprocal Enforcement of Support Act.' ORS 110.006.

Finally, our conclusion is supported by ORS 109.070, which enumerates the methods for establishing paternity in Oregon, and by our recent decision in Thom v. Bailey, 257 Or. 572, 481 P.2d 355 (1971), interpreting that statute. ORS 109.070 provides, in part:

'The paternity of a person may be established as follows:

'* * *.

'(3) By the marriage of the parents of a child after his birth.

'(4) By filiation proceedings.

'(5) By paternity being established or declared by other provision of law.' (Emphasis added.)

In Thom v. Bailey, supra, plaintiff brought both a declaratory judgment proceeding and a proceeding to determine heirship in which she alleged that she was the illegitimate daughter of the deceased and was entitled to inherit his entire estate. There had been no prior adjudication of paternity. The court noted that a filiation proceeding was not the only method for determining the paternity of illegitimate children under ORS 109.070. The court also noted that the legislature had declared that the paternity statute was to be liberally construed. ⁸ The court then held that declaratory judgment proceedings and proceedings to determine heirship were 'other provision(s) of law' which could be utilized in a proper case to establish paternity. Thom v. Bailey, supra at 596, 600, 481 P.2d 355.

We feel that the URESA is also an 'other provision of law' which is available to establish paternity. Thus, we conclude that the circuit courts have the necessary authority to determine paternity in URESA proceedings. ⁹

Defendant's second contention is that the trial court erred in denying his motion for a jury trial on the issue of paternity. Since the Court of Appeals found that the circuit court lacked jurisdiction to establish paternity in a URESA proceeding, it did not decide the issues raised by the denial of defendant's motion for a jury trial on that issue. ¹⁰ However, because of our holding that the circuit courts do have jurisdiction to establish paternity in URESA proceedings, we must now consider the propriety of the trial court's denial of defendant's motion.

Preliminarily, plaintiff contends that the defendant is not entitled to a jury trial in this case since his motion was not timely made pursuant to Rule 5.010 of the circuit court for Lane County. ¹¹ However, it does not appear from the record that this objection was raised in the trial court, or that it played any part in the trial court's decision to deny defendant's motion. Moreover, the timeliness of the motion is a defect which could have been excused at the discretion of the trial court and, in the absence of an exercise of that discretion, we are not inclined to affirm the denial of defendant's motion on that basis alone. In any event, it is not clear to us that defendant's motion for a jury determination of paternity was actually untimely under the local rule, and we would be reluctant to so hold without a previous...