In re Marriage of Crocker

• Decision Date: 26 April 2001
• Citation: 22 P.3d 759,332 Or. 42
• Parties: In the Matter of the MARRIAGE OF Dennis James CROCKER, Petitioner on Review, and Marianne Ellen Crocker, nka Marianne Ellen Groom, Respondent on Review.
• Court: Oregon Supreme Court

22 P.3d 759

332 Or. 42

In the Matter of the MARRIAGE OF Dennis James CROCKER, Petitioner on Review,

and

Marianne Ellen Crocker, nka Marianne Ellen Groom, Respondent on Review.

(CC 8706-64201; CA A99888; SC S46166)

Supreme Court of Oregon.

Argued and Submitted November 8, 1999.

Reassigned December 19, 2000.

Decided April 26, 2001.

Lawrence D. Gorin, Portland, argued the cause and filed the briefs for petitioner on review.

Dawn M. Lagrone, Certified Law Clerk, Portland, argued the cause for respondent on review. Gregory B. Soriano, Portland, filed the response. Gregory B. Soriano and Dawn M. Lagrone, filed the brief on the merits for respondent on review.

Philip F. Schuster, II, and Roger F. Dierking, of Dierking & Schuster, Portland, filed a brief on behalf of amicus curiae Dierking & Schuster.

Charles F. Hinkle, of Stoel Rives LLP, Portland, filed a brief on behalf of amicus curiae Daniel Case McGinley.

David Schuman, Deputy Attorney General, and Hardy Myers, Attorney General, Salem, filed a brief on behalf of amicus curiae State of Oregon.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, KULONGOSKI, LEESON, and RIGGS, Justices.²

GILLETTE, J.

The issue in this domestic relations case is whether a court may order a divorced parent to provide support for his or her child between 18 and 21 years of age attending school. Father maintains that ORS 107.108(1),³ the statute that permits such an order, is unconstitutional under Article I, section 20, of the Oregon Constitution, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.⁴ The trial court held that the statute is unconstitutional on both grounds. The Court of Appeals reversed. Crocker and Crocker, 157 Or.App. 651, 971 P.2d 469 (1998). For the reasons that follow, we affirm the decision of the Court of Appeals.

The relevant facts are as follows. Father and mother were divorced in 1987. At that time, the parties' three children were ages eleven, eight, and five. The dissolution judgment awarded mother custody of the children and ordered father to pay $200 monthly child support for each child. In 1995, at mother's request, the court modified father's support obligation, ordering him to pay $942 in support for all three children, including the oldest child, who at that time was attending college.

In 1997, when the parties' second child had turned 18 and was planning to attend college, mother again moved to modify father's child-support obligation. Father opposed mother's motion, arguing that ORS 107.108(1) was unconstitutional.

The trial court granted father's motion, stating:

"ORS 107.108 permits a child support obligation to be imposed upon one class of citizens — divorced or separated parents of qualifying children between ages 18 and 21, as specified in ORS 107.108(4) — while no provision exists permitting such an obligation to be imposed in like circumstances upon married parents[.]"

Concluding that there was no rational basis for the distinction made by ORS 107.108, the trial court held that the statute violated both Article I, section 20, of the Oregon Constitution, and the Equal Protection Clause of the Fourteenth Amendment. Accordingly, the court dismissed mother's motion. Mother appealed.

On appeal, the Court of Appeals reversed the decision of trial court, holding that, under Article I, section 20, and the Equal Protection Clause, there was a rational basis for a distinction between divorced parents and cohabiting married parents. Crocker, 157 Or.App. at 660-64, 971 P.2d 469. We allowed father's petition for review.

Although the parties have presented and argued this case solely on constitutional grounds, this court ordinarily will not decide constitutional questions when an adequate subconstitutional basis for decision exists. See, e.g., Leo v. Keisling, 327 Or. 556, 560, 964 P.2d 1023 (1998)

(constitutional issues should not be decided when there is adequate statutory basis for decision); City of Portland v. Tidyman, 306 Or. 174, 180, 759 P.2d 242 (1988) (when state statute resolves issue in case, court will not reach constitutional claim). Of course, the task of deciding a case on a subconstitutional basis is complicated significantly when the parties offer no help concerning any possible statutory or other basis on which the case can be decided. We nonetheless ordinarily will attempt to identify such a basis, if possible.

In the present case, one such possibility is mentioned, if only in passing, in the brief amicus curiae that was filed by the State of Oregon. That brief states:

"The logical predicate to Father's constitutional attack is the assumption that, under Oregon law, some parents (those in intact marriages) receive treatment that is unjustifiably better tha[n] the treatment received by others (those in broken marriages): the latter but not the former may be legally compelled to support their 18 to 21 year old children attending school. In fact, the constitutional issue of equal treatment may not arise at all in this case because the predicate assumption may not be true. If Oregon laws provide that a married parent or parents may also be subjected to a judicial decree mandating support of 18- to 21-year old children attending school, then the two classes — parents in intact marriages and parents in broken marriages — are treated equally under the law. That issue has not been definitively addressed by this court. For example, ORS 108.110 provides: `(1) Any married person * * * may apply to the circuit court * * * for the support of minor children and children attending school. * * * (2) As used in this section, "child attending school" has the meaning given that term in ORS 107.108.' * * * Neither the statute nor the case law interpreting it specify that the `married person' referred to must be non-cohabiting."

The Court of Appeals, responding to a similar footnote in the state's amicus brief in that court, examined the statutory issue in detail. Crocker, 157 Or.App. at 657-59, 971 P.2d 469. The court's research took it back to the predecessor statute to ORS 108.110, first enacted in 1889, and followed it through to the present day. Id. Pivotal to that court's analysis was the fact that this court, in construing the predecessor statute, had stated that the statute did not apply to married women who live with their husbands. Id. at 658, 971 P.2d 469 (citing Noble v. Noble, 164 Or. 538, 550, 103 P.2d 293 (1940)). The Court of Appeals then searched for any legislative change to that interpretation. Finding none, it concluded that ORS 108.110 applies to only married persons who are not cohabiting. Id. at 658-59, 971 P.2d 469. It followed, the court reasoned, that the logical predicate to father's argument could not be refuted on statutory grounds. Id. at 659, 971 P.2d 469. That is, father correctly asserted that cohabiting married parents have a privilege that father does not have, viz., that one cohabiting parent cannot be ordered, on the petition of the other cohabiting parent, to support a child attending school. As we shall explain, we agree with the Court of Appeals that ORS 108.110 does not solve this problem, but our analysis differs slightly.

We begin by noting that several Oregon statutes contain rules respecting parental duties of support for children attending school. For example, ORS 107.108 gives courts authority to order divorced or legally separated parents, or parents whose marriage has been annulled, to support their children attending school. ORS 109.155(4) authorizes courts to order parents who never married to support their children attending school. And, as noted, ORS 108.110 gives courts authority to order married parents to support their children attending school. As to the last statute, however, the question arises — all married parents, or only those who live separately? We turn to that question.

As is true in any other case of statutory interpretation, we begin with the text and context of the statute. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993)

(setting out methodology).

ORS 108.110 provides, in part:

"(1) Any married person * * * may apply to the circuit court of the county in which the married person resides or in which the spouse may be found for an order upon the spouse to provide for support of the married person or for the support of minor children and children attending school, or both * * *. * * *

"(2) As used in this section, `child attending school' has the meaning given that term in ORS 107.108."⁵

(Emphasis added.) The emphasized phrase, "[a]ny married person," standing alone, sweeps with the widest possible net. The right to which it speaks is not limited by such qualifying clauses as, "not cohabiting with the married person's spouse," or the like. The phrase does not stand alone, however. Under the PGE paradigm, we consider earlier versions of a statute, as well as case law concerning that statute and the earlier versions of it, as part of our first level of analysis. See State v. Toevs, 327 Or. 525, 532, 964 P.2d 1007 (1998)

(first level of analysis includes case law); Krieger v. Just, 319 Or. 328, 336, 876 P.2d 754 (1994) (context includes earlier versions of same statute). We turn to the evolutionary history of ORS 108.110.

The statute that has evolved into the present version of ORS 108.110 first was adopted in 1889. That statute provided:

"[I]t shall be lawful for any married woman to apply to the circuit court of the county in which she resides for an order upon her husband to provide for her support and the support of her minor children, if any, by said husband living with her."

Oregon Laws 1889, p 92.

We begin our examination of the statute by addressing a linguistic puzzle that is inherent in its wording. The statute refers to "the support of [any married woman's] minor children, if any, by said husband living with her." (Emphasis added.) What word does the emphasized phrase modify?...