State ex rel. Fulton v. Fulton

• Decision Date: 15 November 1977
• Citation: 571 P.2d 179,31 Or.App. 669
• Parties: STATE of Oregon ex rel. Joann G. FULTON, and the State of Utah, County of Salt Lake, by and through Director, Department of Social Services, Respondent, v. Gilbert A. FULTON, Appellant.
• Court: Oregon Court of Appeals

Page 179

571 P.2d 179

31 Or.App. 669

STATE of Oregon ex rel. Joann G. FULTON, and the State of Utah, County of Salt Lake, by and through Director, Department of Social Services Respondent, v. Gilbert A. FULTON, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Sept. 23, 1977.

Decided Nov. 15, 1977.

Richard E. Fowlks, Portland, argued the cause and filed the brief for appellant.

Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C. J., and RICHARDSON and JOSEPH, JJ.

RICHARDSON, Judge.

Father appeals an order of the circuit court requiring him to pay $50 per month for the support of each of his six children residing in Utah. The proceeding was initiated by the mother in Utah pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), ORS ch. 110.

Father claims, inter alia, he was denied the statutory and constitutional right to produce redirect testimony, to present further witnesses and oral argument.

In the URESA proceeding the respondent, the father in this case, has the burden to show cause why the relief sought from the initiating state should not be granted. ORS 110.171. During cross-examination of the father, who was the first witness, the following occurred:

"THE COURT: I have heard enough. Be the order of the Court the defendant will pay through the Clerk of the Court, for each one of the minor children named in the petition, the sum of $50 a month, commencing forthwith."

The court then concluded the proceedings and took up other, unrelated court business. Later that day the attorney for the father asked that the proceedings be reopened in order for him to finish his presentation of evidence. He explained his reasons as follows:

"Well, your Honor, we were trying to get to the reason for his situation and the reason why at this point he has been unable to pay and the reason why he is questioning the state of Utah's order in this matter. The family situation I don't think was fully able to be brought out."

The court denied his request.

The effect of the court's ruling was to deny the father the right to redirect examination, to present further witness or evidence and to present argument.

The court, in the exercise of sound discretion, may control the presentation of evidence, the examination of witnesses and the progress of the trial. The bounds of this discretion are in some measure set out by statute. ORS 45.530 provides:

"The court may exercise a reasonable control over the mode of interrogation, so as to make it as rapid, as distinct, as little annoying to the witness and as effective for the extraction of the truth as may be; but subject to this rule, the parties may put such legal and pertinent questions as they see fit. The court, however, may stop the production of further evidence, upon any particular point, when the evidence upon it is already so full as to preclude reasonable doubt."

ORS 45.550 provides:

"A witness once examined shall not be reexamined as to the same matter without leave of the court; but he may be reexamined as to any new matter upon which he has been examined by the adverse party. After the examinations on both sides are concluded, the witness shall not be recalled without leave of the court. Leave is granted or withheld in the exercise of a sound discretion."

It does not appear the ruling of the court was based upon a conclusion the evidence was already so full as to preclude reasonable doubt, ORS 45.530, or that redirect examination was not warranted, ORS 45.550. The import of the ruling was that the court had made up its mind and was not willing to hear further evidence or argument.

The right to produce material evidence, confront adverse evidence and have counsel present legitimate argument relating the facts and the law, is basic to a fair hearing for a litigant. He may choose, of course, not to avail himself of the right but the opportunity must be extended. In this case to...