Fox v. Hohenshelt

• Decision Date: 09 December 1974
• Citation: 19 Or.App. 617,528 P.2d 1376
• Parties: Mary Anne FOX, Appellant, v. Terry Wayne HOHENSHELT, Respondent.
• Court: Oregon Court of Appeals

Page 1376

528 P.2d 1376

19 Or.App. 617

Mary Anne FOX, Appellant, v. Terry Wayne HOHENSHELT, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Oct. 21, 1974.

Decided Dec. 9, 1974.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Francis F. Yunker, Portland, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

This is a filiation proceeding under ORS 109.125. ¹ Plaintiff filed a complaint in equity alleging that defendant was the father of plaintiff's child born out of wedlock and seeking a decree adjudging defendant to be the father and requiring him to pay child support and certain expenses. Defendant filed a general denial and an affirmative defense, stating:

'That on the 20th day of September, 1969, this plaintiff, then Mary A. Craig, executed and delivered to this defendant a release of claim, a copy of the said release being attached hereto marked Exhibit 'A' and made a part hereof; that in consideration thereof this defendant paid to this plaintiff the sum of $200.00.'

Exhibit A to the affirmative defense read:

'I, MARY CRAIG, being first duly sworn, depose and say:

'That in approximately three months I shall give birth to a child out of wedlock. I have decided this baby should be placed for adoption at birth. That for the sum of $200.00 and other valuable consideration I release and forever discharge one TERRY HOHENSHELT from any and all claims that may be brought against him to establish him as the putative father of this unborn child.

'DATED this 20th day of September, 1969.'

Plaintiff's demurrer to the affirmative defense was overruled. Thereafter plaintiff filed a reply to which a demurrer was also sustained. For reasons which we need not consider here, plaintiff refused to plead further after the demurrer to her affirmative reply was sustained, and appeals from an order of the trial court dismissing the proceeding.

On appeal plaintiff contends that the release she executed was not a bar because ORS 109.220 makes such an argeement subject to court approval. Defendant contends that the release is binding under ORS 109.230.

ORS 109.220 states:

'The judge of the juvenile court of the county in which the female referred to in ORS 109.125 resides may make such compromise or arrangement with the putative father of any child born out of wedlock relative to the support of the child as the judge deems equitable and just, and thereupon may discharge the putative father from all liability for the support of the child.'

ORS 109.230 states:

'Any contract between the mother and father of a child born out of wedlock is a legal contract, and the admission by the father of his fatherhood of the child is sufficient consideration to support the contract.'

Neither brief attempts to reconcile the two statutes.

Originally in Oregon there was no duty on the part of a father to support his illegitimate child. It was the obligation of the mother to provide for and support the child. As a consequence, any contract in which the putative father assumed all or part of the duty to support his illegitimate child was unenforceable, due to a lack of consideration. Nine v. Starr, 8 Or. 49 (1879).

In 1917 the legislature enacted Oregon Laws 1917, ch. 48, which, with some modifications not important to the case before us, remain presently in force under the general heading, 'Filiation Proceedings,' ORS 109.125 through ORS 109.230. Oregon Laws 1917, ch. 48, p. 67, provided that if a man was found to be the father of an illegitimate child, he was

'* * * chargeable with its future maintenance in such sum and in such manner as the court shall direct, and also for all expenses incurred by such county or by the mother of such child for the lying-in and attendance of the mother during her sickness, and also for the care and support of such child since its birth, and for the costs of such prosecution * * *.' Oregon Laws 1917, ch. 48, § 5, p. 67, codified in ORS 109.150, repealed Oregon Laws 1969, ch. 619, § 15, p. 1528.

The 1917 Act also provided a procedure whereby a public officer could institute filiation a public officer could institute or cooperation of the mother, if the child was or was likely to become a public charge. Oregon Laws 1917, ch. 48, § 10, p. 69, codified in ORS 109.200, repealed Oregon Laws 1969, ch. 619, § 15, p. 1528. This authorized the state to protect its interest even if the mother was unwilling to initiate proceedings.

Several methods were provided in the statute whereby the putative father could be discharged from further liability for support of the child: Oregon Laws 1917, ch. 48, § 12, p. 69, codified in ORS 109.220, provided that the judge of the juvenile court could compromise with the putative father of the child 'as the said judge shall deem equitable and just'; Section 3 of the same Act provided that:

'If the accused person shall pay or secure to be paid to the female complaining, such sum of money, or other property, as she may agree to receive in full satisfaction, And as shall be approved by the judge of the juvenile court of the county wherein such action is pending, of which agreement and approval the justice shall make a memorandum on his docket, and shall also give bonds with sufficient sureties to be approved by the justice to the county, conditional to secure and indemnify such county from all charges for the maintenance of such child, and shall also pay all expenses, if any, incurred by such county for the lying-in and support and attendance upon the mother during her sickness, and the costs of prosecution, the justice shall discharge such accused person.' (Emphasis supplied.) Oregon Laws 1917, ch. 48, § 3, p. 67, codified in ORS 109.130, repealed Oregon Laws 1969, ch. 619, § 15, p. 1528.

The above statutes evidence an intent by the legislature, at the time the original filiation statute was enacted, to protect several distinct interests. By providing that public officials can, on their own initiative, institute a filiation proceeding if it appears that the child will become a public charge, and by requiring the putative father to post a bond to indemnify the county from all expenses for maintenance of the child as a precondition to being discharged from further liability under ORS 109.130 (repealed), the legislature declared that the state had an interest in filiation proceedings. By providing that in addition to the requirement of posting bond a judge must approved the agreement between the mother and father in order to discharge the father, the legislature decided that an impartial review of the agreement was necessary to protect the interests of the child.

As part of the 1917 Act the legislature included the following section:

'Any contract between the mother and father of a child born out of wedlock is a legal contract, and the admission by the father of his fatherhood of the child is sufficient consideration to support the contract.' ORS 109.230. (Present version.) Oregon Laws 1017, ch. 48, § 13, p. 69. Amended Oregon Laws 1961, ch. 338, § 6, p. 475, but only to change the wording slightly and remove the word 'illegitimate' which appeared in the original statute.

There is no language to the effect that such an agreement between parents can discharge the putative father from all further liability for the support of his child.

We need not interpret ORS 109.230 as depriving a child of the protection given by ORS 109.220, and the other sections of the filiation statute. We interpret it as extending, not minimizing, the rights of the child. For example, it prevents the putative father from making promises to support the child or provide for the child in his will, and then after other remedies are barred by statutes of limitation, repudiating the contract.

The Oregon Attorney General has expressed the opinion that:

'If the contract is made with the mother without instituting the proceedings provided in sections 16--901, et seq., Oregon Code 1930 (ORS 109.110 et seq.), it would not appear to release the father from liability under section 19--910 (ORS 109.200 (repealed) authorizing suit by public officials) if the child is or becomes a public charge.' 18 Op.Att'y. Gen. 190 (1936--1938).

The opinion says that a contract under ORS 109.230 cannot completely discharge the father but implies that if the child is not a public charge, the agreement may be binding on the mother.

In Dannells v. U.S. National Bank, 172 Or. 213, 138 P.2d 220 (1943), the Supreme Court interpreted the intent of the filiation statute:

'* * * Since then (1917) it has been and is the policy of this state not only to permit but to require any man who is responsible for any unmarried female becoming pregnant with a child, which, if born alive, may be an illegitimate child or child born out of wedlock, to pay or secure to be paid to her such sum of money or other property as she may agree to receive in full satisfaction And shall be approved by the judge of the juvenile court of the county where such action is pending * * *.' 172 Or. at 241--242, 138 P.2d at 231. (Emphasis supplied.)

Another opinion of the Attorney General expresses the view that the juvenile court can consider and approve a contract between an unwed mother and the putative father, discharging the father from further liability, without a 'public proceeding' being filed. 31 Op.Att'y.Gen. 106 (1962--1964). As in Dannells, no mention of ORS 109.230 is made, but a right of access to the courts is presumed.

In 1969 the Oregon legislature revised the filiation statutes. The revision affected only procedure--the basic policy remained the same. As part of this revision ORS 109.130 was repealed, Oregon Laws 1969, ch. 619, § 15, p. 1528. In its place ORS 109.155 (Oregon Laws 1969, ch. 619, § 5, p. 1525) wasd enacted, setting forth the role of...