State ex rel. Adult and Family Services Division v. Gilliland, 335

• Citation: 634 P.2d 820,54 Or.App. 283
• Decision Date: 12 October 1981
• Docket Number: No. 335,335
• Parties: STATE of Oregon, ex rel. ADULT AND FAMILY SERVICES DIVISION, Respondent, v. Barbara A. GILLILAND, now Milligan, Respondent, and Robert Neal, Appellant. ; CA 19509.
• Court: Court of Appeals of Oregon

Page 820

634 P.2d 820

54 Or.App. 283

STATE of Oregon, ex rel. ADULT AND FAMILY SERVICES DIVISION, Respondent, v. Barbara A. GILLILAND, now Milligan, Respondent, and Robert Neal, Appellant.

No. 335; CA 19509.

Court of Appeals of Oregon.

Argued and Submitted April 17, 1981.

Decided Oct. 12, 1981.

Kevin J. Freeman, Lebanon, for appellant. With him on the brief was Morley, Thomas, Kingsley & Reuter, Lebanon.

Al J. Laue, Asst. Atty. Gen., Salem, for respondent Adult and Family Services Division. With him on the brief were Dave Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

No appearance made by respondent Barbara A. Gilliland.

Before BUTTLER, P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

In this filiation proceeding defendant was found to be the father of the child in question. He appeals the denial of his motion for a directed verdict, contending that the state failed to prove it had authority to initiate the proceedings. ORS 109.125 is the controlling statute and provides in part:

"(1) Any of the following may initiate proceedings under this section:

" * * *

"(b) Any state agency, if furnishing support to the mother for the benefit of the child or if furnishing services or assistance of any kind because of the birth, or impending birth, of the child;

" * * *

"(2) Proceedings shall be initiated by the filing of a duly verified petition of the initiating party. The petition shall contain:

"(a) If the initiating party is one of those specified in paragraphs (a) to (d) of subsection (1) of this section:

" * * *

"(B) Facts showing the petitioner's status to initiate proceedings; * * *

The only question presented by this appeal is whether the state, having adequately alleged its standing to commence this proceeding, was required to prove at the filiation trial that it is furnishing support to the mother for the benefit of the child or assistance of any kind because of the birth or impending birth of a child. In the present case, the state presented no such proof. Defendant argues that because the state failed to prove it was entitled to initiate the proceedings, the trial court had no authority to submit the paternity issue to the jury. The trial court denied defendant's motion on the ground that "it would be prejudicial to the determination of the paternity issue to have the matter of 'welfare payments' injected into the case." We reverse.

As noted by the state, filiation proceedings under ORS 109.155 are divided into two parts. That statute provides:

" * * *

"(2) If the court or jury finds, from a preponderance of the evidence, that the petitioner or the defendant is the father of the child who has been, or who may be born out of wedlock, the court shall then proceed to a determination of the appropriate relief to be granted. * * *

" * * *

"(4) The court shall have the power to order the father to pay such sum as it deems appropriate for the past and future support and maintenance of the child during its minority and while the child is attending school and the reasonable and necessary expenses incurred or to be incurred in connection with prenatal care, expenses attendant with the birth and postnatal care. The court may grant the prevailing party reasonable costs of suit, including reasonable attorney fees." (Emphasis added.)

The state contends that because of the bifurcated nature of the paternity trial, it was unnecessary to establish its standing to proceed in the filiation hearing. This contention is, however, directly contrary to the statutory requirement that the party commencing filiation proceeding...