State ex rel. Yancy v. Wilke

• Decision Date: 03 November 1993
• Citation: 124 Or.App. 428,861 P.2d 406
• Parties: STATE of Oregon ex rel. Terry Lee YANCY, Appellant, v. Ronald Lee WILKE, Respondent. 83-11-8530-E; CA A76503.
• Court: Oregon Court of Appeals

Page 406

861 P.2d 406

124 Or.App. 428

STATE of Oregon ex rel. Terry Lee YANCY, Appellant, v. Ronald Lee WILKE, Respondent.

83-11-8530-E; CA A76503.

Court of Appeals of Oregon.

Argued and Submitted Oct. 13, 1993.

Decided Nov. 3, 1993.

Appeal from Circuit Court, Harney County; F.J. Yraguen, Judge.

Jas. Adams, Asst. Atty. Gen., argued the cause for appellant. On the brief were Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Diane S. Lefkow, Asst. Atty. Gen.

Gordon Mallon argued the cause and filed the brief for respondent.

Before DEITS, P.J., and RIGGS and DURHAM, JJ.

PER CURIAM.

The state seeks reversal of the trial court's pretrial order allowing defendant's demurrer to a show cause order. Defendant was ordered to show cause why he was not in contempt of court for failing to obey a child support order. The trial court, relying on our decision in State ex rel. Mikkelsen v. Hill, 108 Or.App. 135, 813 P.2d 1130 (1991), allowed defendant's demurrer on the ground that ORS 33.065(7), which makes inability to pay child support an affirmative defense, violates the Fourteenth Amendment to the United States Constitution. However, the Supreme Court reversed our decision and held that it is constitutionally permissible to make inability to pay a child support order an affirmative defense in a contempt proceeding. State ex rel. Mikkelsen v. Hill, 315 Or. 452, 847 P.2d 402 (1993). Accordingly, the trial court erred in allowing defendant's demurrer to the show cause order.

Reversed and remanded.