Isn’t There a Case About That? 25 Critical Family Law Cases to … · 2015-12-25 · Kimberly A....

Friday, February 24, 2012 9 a.m.–4:15 p.m.

DoubleTree Hotel Portland, Oregon

6.25 General CLE credits

Isn’t There a Case About That? 25 Critical Family Law Cases to Know

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Isn’T THErE A CAsE AbOuT THAT? 25 CrITICAL FAmILy LAw CAsEs TO KnOw

PrOGrAm PLAnnErs

brittany A. berkey, St. Andrew Legal Clinic, PortlandKimberly A. Quach, Lechman-Su & Quach PC, Portland

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

Copyright © 2012

OREGON STATE BAR16037 SW Upper Boones Ferry Road

P.O. Box 231935Tigard, OR 97281-1935

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TAbLE OF COnTEnTs

schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii

1. Past, Present, and Future: Developments in the Law of Domestic Partnership . . . . . . . . 1–i— mark Johnson roberts, Gevurtz Menashe Larson & Howe PC, Portland, Oregon

2. Oregon spousal support bucket List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–i— Daniel s. margolin, Stephens Margolin PC, Portland, Oregon

3. Equitable Distribution/Property Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–i— Helen C. Tompkins, Law Office of Helen Tompkins PC, Lake Oswego, Oregon

4. Tips, Cases, rules, and statutes: Avoiding malpractice and Ethical mistakes in Family Law Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–i— Gilbert b. Feibleman, Feibleman & Case, Salem, Oregon

5. rebutting the Presumption of Equal Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–i— John L. barlow, Barnhisel Willis Barlow & Stephens PC, Corvallis, Oregon

6A. understanding Oregon Child Custody Laws: Three best Interests Cases to bring with you on a Desert Island—Presentation slides . . . . . . . . . . . . . . . . . . . . . . . . . . 6A–i— Kimberly A. Quach, Lechman-Su & Quach PC, Portland, Oregon

6b. understanding Oregon Child Custody Laws—Presentation slides . . . . . . . . . . . . . . . . . 6B–i— mark Kramer, Kramer & Associates, Portland, Oregon

6C. understanding Oregon relocation Law: Three relocation Cases to bring with you on a Desert Island (Provided you Get Permission to move There) . . . . . . . . . . . . . 6C–i— Patricia L. mcGuire, Bobzien McGuire LLP, Portland, Oregon

6D. Child Custody Hypotheticals—Presentation slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6D–i— Kimberly A. Quach, Lechman-Su & Quach PC, Portland, Oregon— The Honorable Jack L. Landau, Oregon Supreme Court, Salem, Oregon— mark Kramer, Kramer & Associates, Portland, Oregon— Patricia L. mcGuire, Bobzien McGuire LLP, Portland, Oregon

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8:00 registration

9:00 Past, Present, and Future: Developments in the Law of Domestic Partnership

F Common law domestic partnershipsF Legal and equitable considerationsF Registered domestic partnerships

mark Johnson roberts, Gevurtz Menashe Larson & Howe PC, Portland

9:45 Oregon spousal support bucket List

F Spousal support in generalF Types of spousal supportF Modification

Daniel s. margolin, Stephens Margolin PC, Portland

10:45 break

11:00 Equitable Distribution/Property Division

F Analytical steps from Kunze and KunzeF Marital property versus marital assetsF Applying the presumption of equal contribution

Helen C. Tompkins, Law Office of Helen Tompkins PC, Lake Oswego

12:00 Lunch

1:00 Avoiding malpractice and Ethical mistakes in Family Law Cases

F Avoiding the most common FAPA mistakesF Making a proper offer of proofF The ethics of communications between represented partiesF Can I really be sued for that?F New case and OAR pitfallsF Judge McKnight’s “Top 20 Family Law Mistakes”

Gilbert b. Feibleman, Feibleman & Case, Salem

1:45 Together but (not) Equal: rebutting the Presumption of Equal Contribution

F Effect of separationF Homemaker contributionsF Contributions to asset growthF The “Olesberg Fix”

John L. barlow, Barnhisel Willis Barlow & Stephens PC, Corvallis

2:30 break

sCHEDuLE

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2:45 understanding Oregon Child Custody Laws: Eight Cases to bring with you on a Desert IslandF ORS 107.137 factorsF Modifying custody and/or parenting time provisionsF Granting third-party custody and visitation entitlementsF Evaluating a custodian’s entitlement to relocatemoderator: Kimberly A. Quach, Lechman-Su & Quach PC, PortlandThe Honorable Jack L. Landau, Oregon Supreme Court, Salemmark Kramer, Kramer & Associates, PortlandPatricia L. mcGuire, Bobzien McGuire LLP, Portland

4:15 Adjourn

sCHEDuLE (Continued)

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John L. barlow, Barnhisel Willis Barlow & Stephens PC, Corvallis. Mr. Barlow serves on the Disciplinary Board Trial Panel. He is a past member of the State Professional Responsibility Board and past chair of the Oregon State Bar Board of Bar Examiners.

Gilbert b. Feibleman, Feibleman & Case, Salem. Mr. Feibleman practices family law with an empha-sis on complex assets and child custody. He serves as a reference judge, pro tem judge, arbitrator, and mediator. He is a Fellow of the American Academy of Matrimonial Lawyers and International Academy of Matrimonial Lawyers, a founding member and director of the Oregon Academy of Family Law Practitioners, and a member of the Oregon State Bar Family Law and Litigation sec-tions, the Marion, Multnomah, Benton, and Linn county bars, the American Bar Association Family Law Section, the American Trial Lawyers Association, the Oregon State Bar Fee Arbitration Panel, and the Oregon State Bar Disciplinary Board. He is admitted to practice before the United States Supreme Court. Mr. Feibleman is a frequent author and lecturer throughout the country, and he has taught Family Law Practice and other courses at the Willamette Law School.

mark Johnson roberts, Gevurtz Menashe Larson & Howe PC, Portland. Mr. Johnson Roberts practices family law. He is a Fellow of the American Academy of Matrimonial Lawyers, past president of the Oregon State Bar, past president of the National LGBT Bar Association, past chair of Oregon’s State Professional Responsibility Board, and Oregon’s elected State Delegate to the American Bar Association. He is a frequent writer and lecturer on topics of interest to appellate and family law practitioners. Mr. Johnson Roberts holds an LL.M. in Transnational Law from the Willamette University College of Law.

mark Kramer, Kramer & Associates, Portland. Mr. Kramer’s practice concentrates on family law and civil rights, with cases ranging from representation of children endangered by their public custodi-ans to contested custody matters and grandparent and psychological parent rights. He is a member of the Oregon State Bar Family Law Section, the Oregon Trial Lawyers Association, and the Oregon Academy of Family Law Practitioners and is a cofounder of the Multnomah County Family Law Group. He has served as a pro-tem judge in the Multnomah County Circuit Court. Mr. Kramer has regularly contributed to the ongoing modification of laws regarding grandparent and psychologi-cal parent rights. In 2001, he was a member of the work group that crafted legislation, (HB 2427, Chapter 873, Oregon Laws 2001) the “Troxel fix” that substantially revised ORS 109.119. Mr. Kramer is a frequent speaker on grandparent and psychological parent rights and has written a number of published articles in the area.

The Honorable Jack L. Landau, Oregon Supreme Court, Salem. In December 1992, Governor Barbara Roberts appointed Judge Landau to the Oregon Court of Appeals, and he served on that court for the next 18 years. In May 2010, Judge Landau was elected to the Oregon Supreme Court, where he has been serving since January 2011. Prior to taking the bench, Judge Landau was the Attorney-in-Charge of the Oregon Department of Justice trial Division’s Special Litigation Unit and later Oregon’s Chief Deputy Attorney General, where he represented state agencies in state and federal court at trial and on appeal, including before the United States Supreme Court. Judge Landau has been a member of the adjunct faculty at Willamette University College of Law for 19 years, where he teaches legislation. He is a member of the Oregon State Bar Professionalism Commission and the Oregon State Bar Constitutional Law Section Executive Committee, and he was the Editor-in-Chief of Interpreting Oregon Law (OSB Legal Pubs 2009). He is a frequent speaker at local, state, and national continuing education programs and is the author of a number of law review articles on statutory and constitutional interpretation. Judge Landau holds an LL.M. from the University of Virginia School of Law.

FACuLTy

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Daniel s. margolin, Stephens Margolin PC, Portland. Mr. Margolin’s practice focuses on all aspects of family law litigation, including family law appeals and collaborative divorce matters. He is a member of the Oregon State Bar Family Law Section, the American Bar Association Family Law Section, and the Oregon Trial Lawyers Association Family Law Section. Mr. Margolin presents fre-quently at local and national continuing legal education seminars. He has also authored CLE chap-ters for the Oregon State Bar and has been featured as an expert on family law in The Oregonian newspaper.

Patricia L. mcGuire, Bobzien McGuire LLP, Portland. Ms. McGuire’s family law practice encom-passes adoption, alimony and spousal support, child support, custody and visitation, divorce, pa-ternity, and prenuptial agreements. She is the author of “Asserting the Fifth Amendment Privilege in Civil Litigation,” Oregon State Bar Litigation Journal, June 2001, and she has presented at several professional education seminars.

Kimberly A. Quach, Lechman-Su & Quach PC, Portland. Ms. Quach has practiced family law in Oregon and Washington since the early 1990s. In 2010, Ms. Quach and Bradley Lechman-Su started their own firm, where Ms. Quach dedicates her practice to complex domestic and international family law trial and appellate matters. Ms. Quach has served on several committees of the American Bar Association Family Law Section and has spoken at a number of national and local continuing legal education conferences.

Helen C. Tompkins, Law Office of Helen Tompkins PC, Lake Oswego. Ms. Tompkins (formerly Dziuba) focuses her practice on civil appeals in the courts of Oregon, Washington, and the federal system. She has been handling civil appeals since 1987 and previously clerked with the Oregon Supreme Court. Ms. Tompkins prepares and presents civil appeals in the state and federal courts and also serves as a consultant in complex civil appeals. She is often retained to assist as co-counsel with complex motion practice, especially in federal court.

FACuLTy (Continued)

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Chapter 1

PAsT, PrEsEnT, AnD FuTurE: DEvELOPmEnTs In THE LAw OF

DOmEsTIC PArTnErsHIPMark Johnson roberts

Gevurtz Menashe Larson & Howe PCPortland, Oregon

Table of Contents

I. Common-Law Domestic Partnerships. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1

II. Registered Domestic Partnerships (Civil Unions) . . . . . . . . . . . . . . . . . . . . . . . 1–2

III. Childbearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2

IV. Polyamory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3

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Chapter 1—Past, Present, and Future: Developments in the Law of Domestic Partnership

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I. COmmOn-LAw DOmEsTIC PArTnErsHIPs

A. Wilkinson v. Higgins, 117 Or App 436, 844 P2d 266 (1993)

Plaintiff lived in a domestic relationship with defendant’s husband following his separation from defendant and until the husband’s death. The court did not apply Beal v. Beal but instead divided the subject real estate based upon principles applicable to the dissolution of a business partnership.

b. Beal v. Beal, 282 Or 115, 577 P2d 507 (1978)

Plaintiff and defendant purchased property together following their divorce and continued to cohabit for another two years. The court rejected the historic “meretricious relationship” doctrine, which would simply have left the parties without a legal remedy for dissolution of their relationship. Instead, the court adopted a theory of domestic partnership dissolution based upon the express or implied intent of the parties and distributed the property according to their intent.

C. Ireland v. Flanagan, 51 Or App 837, 627 P2d 496 (1981)

Plaintiff and defendant acquired a house held in defendant’s sole name and lived in it together during the term of their relationship. The court found a domestic partnership based on conflicting testimony and divided the property equally between the parties. The court held the Beal principles equally applicable to this case, where the parties were both women.

D. Brazell v. Meyer, 42 Or App 179, 600 P2d 460 (1979)

Appellant and respondent had no agreement to share all of their property, so the court looked to individual items of property to determine whether an intent to share could be shown. The court held that, if the parties took title to their house jointly, then it should be equally divided between them. The court observed in a footnote that it had no authority to award spousal support or attorney fees in a domestic partnership dissolution.

E. Shuraleff v. Donnelly, 108 Or App 707, 817 P2d 764 (1991)

Plaintiff and defendant lived in an intimate domestic relationship for 14 years. The court rejected plaintiff’s attempt to characterize the relationship as a business partnership and to include only jointly titled assets in the distribution. The court looked to the principles underlying the Beal holding in determining that the property distribution should recognize the parties’ joint efforts over the many years of their cohabitation to build a future together. That, the court held, could be accomplished only by looking to separately held assets as well as joint ones and by making a distribution that was equitable in all the circumstances.

F. Himler and Katter, 220 Or App 411, 186 P3d 287 (2008)

Petitioner and respondent cohabited for 16 years and had four children together. The real properties were titled in petitioner’s name

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alone. The court held that the parties’ real and personal property existing at the date of separation was subject to equal division. The property values, under the rules of cotenancy, were to be determined as of the date of trial.

II. rEGIsTErED DOmEsTIC PArTnErsHIPs (CIvIL unIOns)

Note: The RDP statute is codified at ORS 106.300 et seq.

A. Dickerson v. Thompson, 928 nys2d 97 (ny App Div 2011)

Plaintiff and defendant, residents of New York, traveled to the State of Vermont and entered into a civil union there. Unable to obtain a dissolution in Vermont because of that state’s residence requirements, plaintiff filed this action in New York state court. The trial court denied relief, but the Appellate Division reversed, holding that the trial court had jurisdiction to dissolve the union and to grant complete relief in accordance with the equities of the case.

b. Lind and Lind, 207 Or App 56, 139 P3d 1032 (2006)

The parties moved in together in 1994, married in 1998, and divorced in 2004. The court held that it was proper to consider the entire length of the parties’ relationship, and not just the length of the marriage itself, in setting the terms of spousal support.

III. CHILDbEArInG

Note: The donor (“artificial”) insemination statute is codi-fied at ORS 109.239 et seq.

A. McIntyre v. Crouch, 98 Or App 462, 780 P2d 239, rev den, 308 Or 593 (1989), cert den, 495 u.s. 905 (1990)

Respondent bore a child by donor insemination, using semen provided by petitioner, subject to, he claimed, an agreement that he would have certain parental rights in the resulting child. The court found that the artificial insemination statute applied to bar petitioner’s subsequent paternity claim but that such prohibition of parental rights, in the circumstances alleged, would be unconstitutional. The court remanded for a trial on the existence of the agreement. (The case settled on remand.)

b. Leckie and Voorhies, 128 Or App 289, 875 P2d 521 (1994)

Petitioner provided semen to respondent for use in an artificial insemination, subject to an express written waiver of his parental rights in the resulting child. The court held that the waiver was enforceable and affirmed a summary judgment for respondent on petitioner’s paternity claim.

C. Shineovich and Kemp, 229 Or App 670, 214 P3d 29, rev den, 347 Or 365 (2009)

Respondent bore two children by donor inseminations performed during her domestic partnership with petitioner. The trial court dismissed

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petitioner’s declaratory judgment action for a finding of maternity. The Court of Appeals reversed. The donor insemination statute, if petitioner were male and married to respondent, would have made petitioner a parent by operation of law, as long as she had consented to the inseminations. The court held the statute unconstitutional and ordered its application on similar terms to this lesbian couple. (On remand, the trial court found consent and ordered that petitioner was a legal parent to both children. The case subsequently settled.)

Iv. POLyAmOry

Bauder and Bauder, 44 Or App 443, 605 P2d 1374 (1980)

Husband and wife cohabited with a third party, Hart. Upon dissolution of the Bauder marriage, wife testified that the parties had agreed to give Hart a one-third interest in the family home, and the trial court so ordered. The Court of Appeals reversed. Declining to extend the Beal holding to this situation, the court observed that a constructive trust might arise in some circumstances but was not shown on the facts presented.

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Chapter 2

OrEGOn sPOusAL suPPOrT buCKET LIsTDaniel s. Margolin

Stephens Margolin PCPortland, Oregon

Table of Contents

I. Spousal Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1

II. Statutory Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1

III. Important Case Law to Know . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1A. Basis for Awarding Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1B. Awards of Transitional Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2C. Awards of Compensatory Support. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2D. Awards of Maintenance Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2E. Support Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2

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Chapter 2—Oregon spousal support bucket List

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I. sPOusAL suPPOrT

Awards of spousal support are authorized by ORS 107.105(1)(d). Awards of spousal support fall into three categories: (1) transitional sup-port, (2) compensatory support, and (3) maintenance support.

II. sTATuTOry FrAmEwOrK

Under ORS 107.105(1)(d)(A), the purpose of transitional support is to assist a party to “attain education and training necessary to allow the party to prepare for reentry into the job market or for advancement therein.” That statute lays out a number of factors to be considered by the courts when awarding transitional support, including the duration of the marriage, a party’s training and employment skills, a party’s work experience, the financial needs and resources of each party, and others. Under ORS 107.105(1)(d)(B), the purpose of compensatory sup-port is to provide support for a party when “there has been a significant financial or other contribution by one party to the education, training, vocational skills, career or earning capacity of the other party. . . .” That statute lays out a number of factors to be considered by the courts when awarding compensatory support, including the amount, duration, and nature of the contribution, the duration of the marriage, the relative earning capacity of the parties, the extent to which the marital estate has already been benefited from the contribution, and others. Under ORS 107.105(1)(d)(C), the purpose of maintenance sup-port is “a contribution by one spouse to the support of the other. . . .” That statute lays out a number of factors to be considered by the courts when awarding compensatory support, including the duration of the marriage, the health of the parties, including their physical, mental, and emotional condition, the standard of living established during the mar-riage, the relative income and earning capacity of the parties, a party’s training and employment skills, a party’s work experience, the financial needs and resources of each party, and others. Under ORS 107.135(1)(a), the court has the power to mod-ify awards of spousal support. ORS 107.135(3)(a) states that, in order to modify a spousal support award, a party must show a substantial change in circumstances, and in order to modify an award of compensa-tory support, a party must show an involuntary, extraordinary, and un-anticipated change in circumstances that reduces the earning capacity of the paying spouse.

III. ImPOrTAnT CAsE LAw TO KnOw

A. basis for Awarding support

Grove and Grove, 280 Or 341, 571 P2d 477 (1977). In this case, the Supreme Court stated that the purpose of support was to make sure the parties “separate on as equal a basis as possible.” The Court discussed whether indefinite support was warranted in cases where the wife was young and had the opportunity to retrain and reenter the workforce. The Court stated, “the most significant factor is usually whether the

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wife’s property and potential income, including what she can earn or can become capable of earning, will provide her with a standard of liv-ing which is not overly disproportionate to the one she enjoyed during the marriage.” Id. at page 348.

b. Awards of Transitional support

Branscomb and Branscomb, 201 Or App 188 (2005). In this case, the Court of Appeals and the trial court found that wife met the statu-tory standard for an award of transitional support. The trial court had awarded wife $750 per month for three years and $500 per month for five years. The Court of Appeals found that, although the wife was edu-cated, the 14-year marriage and her primary work as a homemaker had substantially affected her ability to work and be self-sufficient. It further found that her work outside the home had been limited over the past 13 years. The Court found that it was just and equitable to award wife transitional support in the amount of $1,000 per month for five years and $750 per month for three years to allow her to grow her business and become economically self-sufficient.

C. Awards of Compensatory support

Harris and Harris, 349 Or 393 (2010). In this case, the trial court had denied compensatory support and the Court of Appeals had af-firmed. The Supreme Court laid out the factors relevant to awarding compensatory support under ORS 107.105(1)(d)(B) and discussed the importance of considering those factors and making findings specific to those factors when making compensatory support decisions.

D. Awards of maintenance support

Potts and Potts, 217 Or App 581 (2008). In this case, the Court of Appeals reduced the trial court’s award of indefinite maintenance sup-port from $7,000 per month to $5,000 per month. In doing so, the court considered the statutory factors supporting an award of maintenance support but also took into account other equitable considerations, such as the types of resources that each party would have as a result of the division of property and the fact that husband had to finance the equal-izing judgment of almost $1 million to wife. The court concluded that, based on the statutory factors such as the length of marriage, the marital standard of living, the parties’ relative earning capacities, the property division, and the parties’ expenses, it was appropriate to award sub-stantial, indefinite maintenance support. However, based on the other considerations listed above, the Court found that wife could live at a standard of living not overly disproportionate to that enjoyed during the marriage with an award of $5,000 per month.

E. support modification

1. Dornbush and Dornbush, 195 Or App 61 (2004). Wife was awarded spousal support and awarded payments of the second and third mortgages on her home under the property division. When hus-band failed to make the mortgage payments, wife went back to court and argued that the spousal support award should be increased by the

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amount of the mortgage payments, because the intent of the property division award was really to provide her with additional income. The Court of Appeals found that husband’s failure to pay the mortgages was not an unanticipated change of circumstances sufficient to justify modi-fying the spousal support award.

2. Grove and Grove, 280 Or 341, 571 P2d 477 (1977). This cases states that remarriage alone is not a significant change of circumstances sufficient to justify modifying or terminating the spousal support award.

3. Fouts and Fouts, 98 Or App 483 (1989). In this case, wife was awarded spousal support in the amount of $300 per month. Husband remarried and his income increased, and wife also remarried and was benefited by her new husband’s income. Husband filed a motion to ter-minate spousal support, which was denied by the trial court. The Court of Appeals affirmed. The Court found that remarriage did not shift the burden of proof to the obligee to prove that she was still entitled to sup-port under the judgment of dissolution. The burden of proof remained with the obligor to prove a substantial change of circumstances. The Court found no substantial change of circumstances in this case.

4. McInnis and McInnis, 199 Or App 223 (2005). In this case, husband and wife signed a marital settlement agreement stating that wife would not seek modification of spousal support. This provision was included in four different sections of the agreement. When wife subsequently sought modification to extend husband’s spousal support obligation indefinitely, the Court of Appeals held that the agreement not to modify spousal support was enforceable and reversed the trial court’s modification. The Court of Appeals stated that, since the parties’ agreement waived their individual rights to go to court to seek modi-fication, the agreement did not divest the court of its power to modify support but rather was a voluntary waiver of the parties’ individual rights, which the parties were free to make.

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Chapter 3

EQuITAbLE DIsTrIbuTIOn/PrOPErTy DIvIsIOn

helen C. toMpkins

Law Office of Helen Tompkins PCLake Oswego, Oregon

Table of Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1

I. Analytical Steps from Kunze and Kunze . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1

II. Miscellaneous Property Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1A. Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1B. Cohabitation Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2C. Evidence of Intent to Share Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2D. Best Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2E. Commingling of Separate Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2F. Treatment of Inheritances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3

III. Final Filter—“Just and Proper” Under All of the Circumstances . . . . . . . . . . . . . . . 3–3

Appendix—ORS 107.105(1)(f) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–5

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Chapter 3—Equitable Distribution/Property Division

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InTrODuCTIOn

The following materials focus on property distributions in dissolution and the proper analysis under ORS 107.105(1)(f) as clarified by Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004). This presentation stops where the afternoon presentation by John Barlow, Rebutting the Presumption of Equal Contribution, picks up.

I. AnALyTICAL sTEPs FrOm Kunze anD Kunze

In approaching any property distribution scenario, it is important to begin by identifying the potential property subject to division by the trial court. From Kunze, we know that all property owned by either of the parties is subject to division by the trial court and that category of property is labeled: “marital property.” Kunze and Kunze, 337 Or at 133. There is a subset of marital property that includes only those assets acquired during the marriage. This subset of property is labeled “marital assets.” This distinction is important because the two categories of property are treated differently and because certain presumptions apply only to the subset of property called marital assets. A good approach to preparing for trial on this issue is: 1. Identify all property owned by either or both parties—this is the “marital property”; 2. Identify the property which was acquired during the marriage—these are the “marital assets”. A useful formulation for briefing this issue might be as follows. 1. The court must identify the parties’ marital assets by determining when property was acquired. For marital assets, the presumption of equal contribution from ORS 107.105(1)(f) applies. Marital assets are “any real or personal property . . . acquired by either of the spouses . . . during the marriage.” Stice and Stice, 308 Or. 316, 325, 779 P.2d 1020 (1989). 2. If the presumption of equal contribution applies, the normal distribution of property would be 50/50. 3. The court must determine whether the presumption of equal contribution has been overcome by evidence the “disputed marital assets did not result from equal contribution from the other spouse.” Fuernsteiner-Perin and Perin, 211 Or. App 23, 29, 153 P.3d 151 (2007). 4. After conducting the above analysis, the court must still determine what division of marital assets is “just and proper” under all of the circumstances.

Kunze and Kunze, 337 Or. 122, 133, 92 P.3d 100 (2004); Perin, 211 Or. App at 31–32.

II. mIsCELLAnEOus PrOPErTy IssuEs

A. burden of Proof

“[T]he party seeking to avail himself or herself of the presumption of equal contribution has the burden of proving that the property in

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question is a marital asset.” Edwards and Edwards, 209 Or. App. 555, 559, 149 P.3d 196 (2006).

b. Cohabitation Assets

“[A] division of property accumulated during a period of cohabitation must be begun by inquiring into the intent of the parties, and if an intent can be found, it should control that property distribution.” Beal and Beal, 284 Or. 115, 122 577 P.2d 507 (1978). Joint acts of a financial nature provide evidence of an intent to share equally. 284 Or. at 122 The court’s distribution should reflect the express or implied intent of the parties. Id. Assets acquired during premarital cohabitation are not marital assets. Timm and Timm, 200 Or. App. 621, 628–29, 117 P.3d 301 (2005) A property’s appreciation during cohabitation but before marriage is not a marital asset. Timm and Timm, 200 Or. App. at 628–29.

C. Evidence of Intent to share Assets

To prove the parties intended to share equally in one party’s separate assets, the opposing party must demonstrate a “mutual understanding between the parties.” Johnson and Johnson, 138 Or. App. 462, 466, 909 P.2d 185 (1996).

D. best Evidence

The best evidence of the intent to share separate assets is the party’s actions. Lind and Lind, 207 Or. App. 56, 67, 139 P.3d 1032 (2006). There the court held: “Intent, then, depends not on what a spouse might privately contemplate or even publicly declare; it depends on how a spouse acts, that is, on what the spouse’s ‘treatment’ of the asset ‘demonstrate[s]’.” 207 Or. App. at 67 (emphasis original). See, e.g., Wallender and Wallender, 126 Or. App. 614, 617, 870 P.2d 232 (1994) (court finds intent to share assets where the parties commit joint acts of a financial nature such as shared bank accounts).

E. Commingling of separate Assets

The court will examine various factors to determine whether there is evidence of intent to share an otherwise separate asset. The factors are: 1. Whether the disputed property is jointly or separately held; 2. Whether the parties shared control over the disputed property; 3. The degree of reliance upon the disputed property as a joint asset.

Hanscam and Hanscam, 247 Or App 207, 217, — P3d — (2011), citing Rud-der and Rudder, 230 Or App 437, 459, 217 P3d 183, rev den 347 Or 365, 222 P3d 1091 (2009).

[C]ommingling is not an all or nothing proposition. In-stead, commingling falls along a spectrum. In some cases, a particular asset may be commingled to such an extent

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that it would be inequitable to divide it in any manner other than equally. In other cases, an asset may be less commingled and therefore subject to a split into unequal shares.

Tsukamaki and Tsukamaki, 199 Or App 577, 586, 112 P3d 416 (2005).

F. Treatment of Inheritances

For a recent discussion of this issue, see Finear and Finear, 240 Or App 755, 762, 247 P3d 1238, rev allowed 350 Or 716, 260 P3d 493 (2011). Because the Oregon Supreme Court accepted review in this case, there may be new case law on this subject, so be careful in citing the Court of Appeals’ opinion or in not assuming the Court of Appeals’ opinion is the final word. The commentary supplied by the Oregon Supreme Court suggests the Court will be looking both at separate property and commingling issues as well as a “just and proper” division.

III. FInAL FILTEr—“JusT AnD PrOPEr” unDEr ALL OF THE CIrCumsTAnCEs

The final step in the trial court’s property distribution analysis is the statutory mandate that the division of property be “just and proper in all the circumstances,” ORS 107.105(1)(f). What is “just and proper” under the circumstances is a matter of trial court discretion. Hanscam, 247 Or App at 217–18. The consequence of this final step is that property which was premarital or separate may nonetheless be awarded to the opposing party. For an example of the Court of Appeals’ analysis of this, see Hanscam, 247 Or App 207. The equity of a property division should be evaluated based on the key considerations as follows: 1. Preservation of the assets, 2. The achievement of economic self-sufficiency for both spouses; 3. The particular needs of the parties, and 4. The extent to which the parties have integrated assets through commingling.

Perin at 31–32, citing Kunze at 136. “Economic self-sufficiency is one of the goals of ORS 107.105 and of this court’s division of marital assets.” Perin, 211 Or. App. at 31–32.

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APPEnDIx—Ors 107.105(1)(F) (2011)

107.105 Provisions of judgment. (1) Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment:

. . . .

(f) For the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances. In determining the division of property under this paragraph, the following apply:

(A) A retirement plan or pension or an interest therein shall be considered as property.

(B) The court shall consider the contribution of a party as a homemaker as a contribution to the acquisition of marital assets.

(C) Except as provided in subparagraph (D) of this paragraph, there is a rebuttable presumption that both parties have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held.

(D) (i) Property acquired by gift to one party during the marriage and separately held by that party on a continuing basis from the time of receipt is not subject to a presumption of equal contribution under subparagraph (C) of this paragraph.

(ii) For purposes of this subparagraph, “property acquired by gift” means property acquired by one party through gift, devise, bequest, operation of law, beneficiary designation or inheritance.

(E) Subsequent to the filing of a petition for annulment or dissolution of marriage or separation, the rights of the parties in the marital assets shall be considered a species of co-ownership, and a transfer of marital assets under a judgment of annulment or dissolution of marriage or of separation entered on or after October 4, 1977, shall be considered a partitioning of jointly owned property.

(F) The court shall require full disclosure of all assets by the parties in arriving at a just property division.

(G) In arriving at a just and proper division of property, the court shall consider reasonable costs of sale of assets, taxes and any other costs reasonably anticipated by the parties.

(H) (i) If a party has been awarded spousal support in lieu of a share of property, the court shall so state on the record and shall order the obligor to provide for and maintain life insurance in an amount commensurate with the obligation and designating the obligee as beneficiary for the duration of the obligation.

(ii) If the obligor dies prior to the termination of spousal support and life insurance is not in force as provided in sub-subparagraph (i) of this subparagraph, the court may modify the method of payment of spousal support under the judgment or order of support from installments to a lump sum payment to the obligee from the estate of the obligor in an amount commensurate with the present value of the spousal support at the time of death.

(iii) The obligee or attorney of the obligee shall cause a certified copy of the judgment to be delivered to the life insurance company or companies.

(iv) If the obligee or the attorney of the obligee delivers a true copy of the judgment to the life insurance company or companies, identifying the policies involved and requesting such notification under this section, the company or companies shall notify the obligee, as beneficiary of the insurance policy, whenever the policyholder takes any action that will change the beneficiary or

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reduce the benefits of the policy. Either party may request notification by the insurer when premium payments have not been made. If the obligor is ordered to provide for and maintain life insurance, the obligor shall provide to the obligee a true copy of the policy. The obligor shall also provide to the obligee written notice of any action that will reduce the benefits or change the designation of the beneficiaries under the policy.

. . . .

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Chapter 4

TIPs, CAsEs, ruLEs, AnD sTATuTEs: AvOIDInG mALPrACTICE AnD ETHICAL

mIsTAKEs In FAmILy LAw CAsEsgilbert b. FeibleMan

Feibleman & CaseSalem, Oregon

Table of Contents

Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1

UTCR Changes re Confidential Information Forms (CIFs) Affecting Family Law Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–29

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Chapter 4—Avoiding malpractice and Ethical mistakes in Family Law Cases

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PrEsEnTATIOn sLIDEs

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TIPS, CASES, RULES & STATUTES:AVOIDING MALPRACTICE & ETHICAL MISTAKES

IN FAMILY LAW CASESSponsored by the Oregon State Bar

February 24, 2012Gilbert B. Feibleman – Salem, Oregon

Highlights Can I really be sued for that? The top FAPA mistakes Making your record in Offers of Proof Client Communications PERS Judgment Changes Expert Witness Cross Examination Read the Footnotes! Digital Devices Judge McKnight’s Top 20 mistakes

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Don’t Say this Lawyer: “I believe that you have an open animosity towards

me.” Judge: “Most hearings are not reset when the only

correspondence from the attorney is an email sent after 11:00 P.M. the night before the hearing to the assigned judge. In spite of the fact that you did not follow the rules of Civil Procedure, I decided to reset the hearing…We called your office… We only got voicemail… Apparently you do not have any staff or back up plan to provide for staff to answer phones or set court dates. This is not the court's problem. We called and tried to coordinate with you regarding future dates...You never called the court back.”

Lawyer: “You refusal to recuse yourself shows that you harbor a dark

agenda and grudge. You want payback. Judges should not be like that… I know when I am being home-towned and when I am facing a

judge with a dark agenda. Judges that are that way do not frighten me.”

Can I Really Be Sued for That?

McEvoy v Helikson, 277 Or 781, 562 P2d 540(1977): Husband awarded custody in divorce. Wife was Swiss citizen. Mother’s lawyer was to hold passport and give to her when child returned. Instead lawyer gave client passport and Mother absconded with child.

Court held that Wife’s lawyer can be sued by Husband.

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Can I Really Be Sued for That? Hilt V. Bernstein, 75 Or App 502, 707 P2d 88 (1985).

Bernstein represented both H & W in divorce settlement. PSA provides that house to be refinanced, remodeled and sold, splitting proceeds. Bernstein also had W sign POA for H to borrow funds. H converted funds, house foreclosed and W sued lawyer:

Court held that As a general rule, an individual is not negligent for failure to foresee that his conduct may involve harm to another through the intentionally tortuous acts of another …unless the actor, should have realized the likelihood that such situation might create and that a 3d person might avail himself of that opportunity

Can I Really Be Sued for That? Other PLF claims paid:

Failure to include pension in property division Failure to get QDRO to protect pension benefits Failure to get asset/investment restraining order Failure to put spousal support deductibility in

Judgment Failure to get security interest for equalizing

judgment Defective Prenuptial Agreement

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The Easiest Child Support Mistake

Many lawyers use the Excel child support calculator available on the DCS website it is faster It allows for quick changes in assumptions

Overnight section in line 3A. If you put in percentages but forget to click

“yes” in box 2B, the calculator will ignore the overnights but you won’t know.

There is no warning like when you insert income less than minimum wage

Malpractice in FAPA Matters

A General Judgment of Dissolution, legal separation or annulment does supersede contrary provisions of a FAPA order.

Temporary dissolution relief under ORS 107.095 does not unless FAPA order is consolidated with the domestic case after notice and opportunity to be heard.

Prior abuse not enough to uphold FAPA

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Malpractice in FAPA Matters ORS 107.710(1) & (2): You must show “by a

Preponderance” that the person is in danger of “imminent danger of further abuse.”

See Oregon State Bar v. Fowler, 278 Or. 169 (1977) stating that injunctions are extraordinary remedies.

Between 2006 & 2007 the court of appeals has tried to correct the misapplication of FAPA statutes: Roshto v. McVein, 207 Or.App. 700, 704-05, 143 P.3d

241 (2006) Fielder and Fielder, 211 Or.App. 688, (2007) Hayes and Hayes, 212 Or.App. 188, 157 P.3d 324

(2007) Baker and Baker, 216 Or.App. 205, 173 P.3d 833

(2007). New Case: Hemingway and Mauer, slip opinion

1/5/12. Right to cross examine witnesses.

Malpractice in FAPA Matters The Hayes case held that to issue and affirm a FAPA order:

(1) the petitioner must have been the victim of abuse; (2) the abuse must have been committed by the respondent

within 180 days preceding the filing of the petition; (3) there must be imminent danger of further abuse to the

petitioner; and (4) that the respondent represents a credible threat to the

physical safety of the petitioner . The Hayes court went on to states that:

“…even if a petitioner makes subjective assertions of fear, a FAPA restraining order will not be affirmed when there is insufficient evidence that the alleged conduct creates an imminent danger of further abuse and a credible threat to the physical safety of the petitioner.” Roshto v. McVein, 207 Or.App. 700, 704-05, 143 P.3d 241 (2006). Hayes and Hayes, 212 Or.App. 188, 157 P.3d 324 (2007).

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MALPRACTICE LURKING IN PERS DIVISION

OAR 459-045-0001 through 459-045-0090 (Division 45) for Domestic Relations Order http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_459/

459_045.html 459-045-0010 (Chapter 238 Tier One/Tier Two Division of

Benefits) ; 459-045-0012 (OPSRP Pension Program Division of Benefits) ; 459-045-0014 (Individual Account Program (IAP) Division of Benefits)

What do they all have in common? A final court order that provides for a division of pension

benefits or disability benefits must use a method described in this rule. (a) The method must be identified on PERS divorce forms. (b) The PERS divorce forms must be attached as exhibits to

the court order, and incorporated by reference in the court order.

NEW WORLD OF PERS DIVISION 459-045-0020 (Court Orders) (1) A final court order must be received by PERS and approved

as administrable before an alternate payee award can be established. (a) PERS shall provide a written response as to whether a

final court order is administrable to the member, the alternate payee, and their attorneys.

(b) Award information shall be provided to attorneys or other representatives… only if a member release or an alternate payee release has been received by PERS.

(2) In the absence of a final court order, a restraining order or stay must be filed with PERS to prevent the distribution of any funds to a member.

(4) If a final court order is received by PERS after a member has withdrawn from PERS …the final court order will be rejected as unadministrable.

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One New Retirement Trial Trap Colling and Colling, 139 Or App 16, 910 P2d 1165, rev den, 324

Or 78 (1996) Often cited for proposition that Retirement is an asset or

income but not both…but no longer!!! Rushby and Rushby (slip opinion December 29, 2011)

ORS 107.105(1)(f) A retirement plan or pension or an interest therein shall be considered as property

Footnote 45: “We note that a court may, in determining whether to make an award of maintenance spousal support, consider the parties' "relative income," including income that results from a division of marital property. ORS 107.105(d)(C)(v). Accordingly, this opinion should not be read to suggest that trial courts may not consider parties' retirement-benefit income when determining whether a support award is just and equitable, even following inclusion of the retirement accounts in the property division. Rather, we hold only that, under ORS 107.105(f), a court must treat retirement accounts as property when dividing the marital property, and may not treat those accounts solely as generating income streams for purposes of calculating an award of spousal support.

DIVORCE AND THE MILITARY PENSIONMILITARY PENSON HAS TWO PARTS The trial court enters a “qualifying court order” under 10 USC

§1450(f)(2) after entry of the final judgment of dissolution. It usually has two parts. The first provides for division of monthly retirement benefits as they are paid out. The other requires (hopefully) that the member elect the SBP when the

member retires. SBP (Survivor Benefit Protection)

The SBP election is not made until the member actually retires, perhaps many years after the

divorce. A dissolution judgment automatically terminates any previous SBP

election of a member who is already retired. To protect the former spouse, the dissolution judgment should require

the member to re-elect the SBP naming the now former spouse to receive the after death benefit.

The member has one year to affirmatively file what amounts to a “re-election” to again name the now former spouse as the SBP beneficiary.

The SBP coverage is lost if the member fails to do so within that one year window.

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DIVORCE AND THE MILITARY PENSION

Federal law requires the military to allow a former spouse to protect court ordered SBP benefits by filing a “deemed election” under 10 USC § 1450(f)(3) along with the court order. This “deemed election” must be filed with the appropriate military

finance center within one year after the entry of judgment. There is no specific form for this election but the request must be

signed by the former spouse to be “deemed” the beneficiary of the SBP and be sent with a court-certified copy of the order which creates the entitlement.

This letter must be separate (another major trap) from the letter requesting direct payment of the basic military retirement benefits.

SEE In Brief, Sept. 2008 Issue and http://www.osbplf.org/docs/audvid/Family%20Law%20May%201%2009%20VIDEO.pdf

Failure to Timely request Telephonic Witnesses

Telephone testimony (ORS 45.400) upon 30 days notice. The court “shall allow…good cause” ……unless: Credibility and demeanor is critical Issue is determinative Perpetuation is more practical Voluminous exhibits Inadequate facility Substantial prejudice by non-appearance Other circumstances require appearance

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Judge McKnights Top 20 Mistakes

1. Missing Signatures on a “Stipulated” Judgment. 2. Referenced Exhibits Not Provided. 3. No Filing Fee Paid for Supplemental Judgment.

ORS 21.111(3) authorizes a $50 base fee for post-judgment filings.

4. No Proper Rebuttal Findings which must include (1) the presumptive amount of the child support

award, (2) the specific finding of “unjustness” or

“inappropriateness,” and (3) the reason for the variance. OAR 137-050-

0333(2).

Judge McNights Top 20 Mistakes 5. No Spousal Support Findings in General Judgment.

ORS 107.105(1)(d) requires: the judgment to name the category of support

(transitional, compensatory, or maintenance) and Make relevant findings.

6. Missing Certificate of Pending Child Support and/or Preexisting Child Support Order. If you submit a proposed child support order and an order

is already in effect for the same child and obligor from a different proceeding (except for a temporary order, i.e., a limited judgment pending final judgment), the court can only (1) honor, (2) modify, or (3) vacate the preexisting order as set out by law. See ORS 25.089(3); ORS 107.085(1)(d); UTCR 8.090.

The Certificate of Pending Child Support is required by statute to put the court and parties on notice about the preexisting order.

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Judge McKnights Top 20 Mistakes 7. Confusion about the Parties’ Intentions.

Vagueness failing to describe who is awarded ordering a sale without specifying the disposition

of the proceeds Add examples and “intent” findings

8. Missing Required Notices in Cases Involving Support. ORS 107.106 requires notices regarding support

and parenting time responsibility whenever support is involved.

ORS 25.384 requires a notice that support will be paid by withholding unless exceptions apply.

ORS 25.020(8)(b)(B) requires a notice about the availability of periodic review for cases on the DCS/DA system

Judge McKnights Top 20 Mistakes 9. Adult Child Has Not Been Served, Waived Rights,

or Signed Stipulated Judgment. ORS 107.108 affords notice and participatory rights to any 18-

to 20-year-old child of the parties. Serve and/or waiver

10. Parties Haven’t Completed Mandatory Parenting Education Class. Some counties will not hear the non-complying parties on any

matter – outside of emergency relief involving the children –until they file proof of compliance.

11. Required Term Regarding Unreimbursed Health Insurance Is Missing. ORS 107.106(1) requires that any custody/parenting time or

support order – under any ORS chapter – must address (1) payment of the child’s uninsured medical expenses and (2) maintenance of insurance or other security for support

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Judge McKnights Top 20 Mistakes 12. Findings Regarding “Cash Medical Support” Are

Missing When Required This is the sum the court may award (as part of the child support

formula calculation) to reimburse a parent for any out-of-pocket medical expenses exceeding $250 a year per child or to repay the state for OHP (Oregon Health Plan) coverage.

It may be malpractice to allow a sharing of uninsured expenses and to also have CMS.

13. No Facts to Support Personal Jurisdiction for Out-of-State Service. Include a prima facie affidavit or some evidence why

Oregon has minimum contacts with a respondent served out of state sufficient to exercise personal jurisdiction when monetary awards or other personal obligations are sought. See: ORCP 4K “long arm” test, ORCP 4L and ORS 110.318.

Judge McKnights Top 20 Mistakes 14. Default Judgment Contains Terms Less

Advantageous to Respondent Than Those in Petition. If the judgment terms are to be less beneficial to the

respondent, the court needs the respondent’s stipulation to the judgment terms amend and re-serve.

15. Waivers Sought Simply Through Judgment Rather Than by Motion and Affidavit. OK – motion and affidavit part of judgment

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Judge McKnights Top 20 Mistakes 16. State Judgment for Deferred Fees Is Included.

ORS 21.692 allows a judgment when fees are deferred but not waived.

Local practice in some counties requires that the proposed domestic relations judgment set out the proposed disposition (stipulated or otherwise) of the deferred costs.

17. UCCJEA Information Is Lacking or Reveals Problems. The court needs to know whether any UCCJEA matters are

pending in other jurisdictions The court needs to know whether the child is residing with

someone other than a parent. The court essentially needs the same ORS 109.767 information

that is required in the original petition. Obtain the home state’s declination of jurisdiction before the

papers are forwarded to the judge for final signature.

Judge McKnights Top 20 Mistakes 18. No Second Copy of Support Order for DOJ.

Even if support is not paid through the Department of Justice (DOJ), a second copy of the support order is required by ORS 25.140 and UTCR 8.010(8)(a).

Because the court must make sure that the agency gets a copy, the attorneys/litigants need to provide that extra copy to the court when the judgment is signed.

19. Facts Supporting Default (i.e., Reasons Why Petitioner Knows Respondent Is Not in Military). The federal Service members Civil Relief Act (SCRA) requires

sworn or declared-under-perjury-penalty facts supporting the allegation of non-service. 50 U.S.C. App. §521. ORCP 69B(2), (4).

This means facts that support why the petitioner believes the respondent is not in the military, not just the bald assertion that the respondent is not in the military.

Attach the Department of Defense printout.

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20. Incorrect Captioning on Judgments and Orders (Particularly Limited Judgments vs. Temporary Orders). The Oregon Court of Appeals stated in a motion

ruling that trial courts do not have authority to enter limited judgments regarding temporary domestic relations relief outside of child support, spousal support, or other orders for the payment of money. Order to Dismiss Appeal on Court’s Motion in

Mullarkey and Nemiroff, Oregon Court of Appeals Case No. CA A130533 (Dec. 2005) (Justice Brewer).

Explicit statutory authority for limited judgments addressing the payment of support or other money is set out at ORS 107.095(2).


A money award implicates a judgment (ORS 18.005(14)) and because a “judgment document must be separate from any other document in the action” (ORS 18.038(3)), temporary terms for payment of support or money must be in a separate document labeled a “Limited Judgment” and containing a money award section (ORS 18.042(1)) if you wish those terms to have judgment lien effect. If you do not wish the temporary orders for

payment of support or money to have judgment lien effect, such terms may be included in a temporary order that also addresses custody, parenting time, or non-financial obligations. No money award section is necessary. ORS 18.042

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MALPRACTICE TRAP ON SUPPORT MODIFICATIONS

Harkins and Harkins, 200 Or App 468 (2005) In Harkins, the judgment provided that husband's spousal

support obligation ended on November 30, 2002 BUT Husband paid the final support installment on October 15, 2002.

Wife moved to modify after the last installment was paid but before the official end of the support obligation.

Holding: once the final payment is made, the support obligation ceases to exist and because there must be an existing support obligation at the time that the court exercises its authority to modify, the court could not modify the obligation.

One possible solution is the following language in the judgment: “Husband may not prepay the final monthly support

payment by more than 14 days before its 12/1/2020 due date to preserve the right of modification. Any such “pre payment” shall not be credited to support.”

Is it Malpractice to not make an Offer of Proof? (1)

When does an offer of proof arise? An objection is made The objection is sustained

Why & When make an offer of proof? Immediately after the court sustains the objection,

the lawyer must request permission to make an offer of proof.

In State v. Busby 315 OR 292 (1993) the court held that “..when a trial court excludes testimony or other evidence, an offer of proof…is required to preserve any claim of error related to what the evidence would have shown.”

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Offer of Proof (2) How the offer of proof can be made in one of the

following ways: (Statement by counsel) if the witness was allowed

to testify, he or she would state (give the nature of the testimony excluded by the court’s adverse ruling).

(Questions of witness) Question the witness regarding those matters which were excluded by the court’s adverse ruling.

(Written statement) submit a written statement of the witness’s testimony which would have been given but for the court’s adverse ruling.

Schweiger v. Solbeck, 191 Or. 454, 230 P.2d 195, 204 (1951) the court held that “…counsel should have made a proper offer of proof, not only to advise the trial court as to his position, but also so that this court on appeal might intelligently pass upon the trial court's ruling.

Offer related Statutes (3) Court MUST allow an offer of proof.

State v. Rodriguez 115 Or. App. 281 (1992): trial court reversed when court refused to allow an offer of proof

Court MUST stay in courtroom for the offer of proof. State v. Olmstead, 310 Or. 455, 461, 800 P.2d 277 (1990)

held: "Another purpose of an offer of proof is to assure that the trial court can make an informed decision. An offer of proof permits the parties to raise additional arguments, if appropriate, and gives the court an opportunity to reconsider its ruling and correct any error. Booth-Kelly Lumber Co. v. Williams, 95 Or. 476, 483, 188 P. 213 (1920)."

OEC 104(1) admissibility is determined by the court subject to introduction of evidence sufficient to support a finding that relevance established.

OEC 103(3) court is urged to hear offers of proof outside of jury OEC 104(2) court is to determine admissibility as to relevance by

hearing evidence that supports the relevance Court CANNOT perform these functions if the judge is out of the

courtroom.

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Offers of Proof (4) Practice Tip: A lawyer should be certain to separate offers of

proof by subject matter and by grounds. The offer will not preserve a claim of error if admissible and

inadmissible offers are grouped together. Query: Is it strategically wise to object during the offer,

cross-examine during the offer or offer rebuttal evidence? Query: Will your cross-examine make it admissible?

Like all good stories there is a beginning and an End

Offers of Proof in Action in Family Law Case (5)

“We review for errors of law the trial court's ruling sustaining father's objection that Foster was not qualified under OEC 702 to give testimony on the particular topic of father's employability in Australia. In determining whether a witness is qualified to testify as an expert, the question under OEC 702 is whether, by virtue of knowledge, skill, experience, training, or education, the witness's testimony would be of assistance to the trier of fact in understanding the evidence or determining a fact in issue. The record shows that Foster has extensive experience in vocational counseling....

We therefore take into account Foster's testimony, introduced by way of mother's offer of proof, in our de novo review of the trial court's decision on the merits.” Marriage of Fedorov, 228 Or.App. 50, 206 P.3d 1124, 1131 (2009)

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Offers of Proof/Evidence (6) Presentation of case

The court of appeals notes that a trial court has the authority to reasonably control the presentation of evidence and examination of witnesses. OEC 611(1). The exercise of that authority is reasonable only if it is fundamentally fair and allows opportunities for a reasonably complete presentation of evidence and argument. Absent a ruling that the evidence was (or would be) irrelevant or redundant [OEC 402], it was error for the trial court to deny husband the opportunity to complete his cross-examination and present his case in chief. Howell-Hooyman and Hooyman, 113 Or App 548, 551, 833 P2d 328 (1992).

It is error for the trial court to refuse to hear additional testimony unless the court makes a specific finding the evidence is already so full on a particular issue as to preclude reasonable doubt or that redirect examination is not warranted. To do otherwise would mean the court has made up its mind without hearing all evidence or argument. Stateex rel Conn v. Levine, 58 Or App 203, 206, 647 P2d 985 (1982).

Is it Ethical to instruct a client how to communicate with an opposing represented party? (Part 1)

Lawyer A represents Client A who is getting divorced from Client B.

Client B is represented by Lawyer B. Client A wishes to engage in direct settlement

negotiations directly with Client B.

Question: May Lawyer A allow Client A to negotiate directly with Client B about the matter while Client B isrepresented by counsel in the matter?

Answer: Yes with caveats

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Is it Ethical to instruct a client how to communicate with an opposing represented party? (Part 2)

Oregon RPC 4.2 provides that in representing a client or the lawyer’s own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: (a) the lawyer has the prior consent of a lawyer representing

such other person; (b) the lawyer is authorized by law or by court order to do so;

or (c) a written agreement requires a written notice or demand to

be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person’s lawyer.

Even if Client A initiates the communication with Client B, a represented adverse party, Lawyer A must not instruct Client A toconvey a particular message because Oregon RPC 8.4(a) provides that a lawyer cannot violate the Oregon RPC “through the acts of another.” See - FORMAL OPINION NO. 2005-147. See also OSB Formal

Ethics Op No 2005-6; cf. In re Murray, 287 Or 633, 639, 601 P2d 780 (1979).

Is it Malpractice to let Experts testify about Hearsay?

Is there an Expert Testimony exception? OEC 703: The facts or data in the particular case upon which

an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

OEC 705: An expert may testify in terms of opinion or inference and give reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

The difference between an opinion based on hearsay and testimony reciting hearsay Custody evaluation reports and testimony

Don’t open the door on cross (see OEC 705 above)

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“Wallingford's testimony as to the factual information derived from documents on which he relied to form his opinion was inadmissible hearsay. See State v. Knepper, 62 Or.App. 623, 626, 661 P.2d 560 (1983) "OEC 703 does not authorize an expert witness to

tell the jury the inadmissible details of the basis of his opinion.”; Mission Ins. Co. v. Wallace Security Agy., Inc., 84 Or.App. 525, 528, 734 P.2d 405 (1987)

“…although OEC 703 "recognize[s] that experts often rely on facts and data supplied by third parties * * * that does not give carte blanche to admitting otherwise inadmissible hearsay”. 985 P.2d 804, 824, 160 Or.App. 201, McCathern v. Toyota Motor Corp., (1999) (citation omitted)

Don’t Open the door!!!

Case example from McCathern v. Toyota Motor Corp., 160 Or.App. 201 (1999)

Easy to Use but Easy to LoseEthical problems with Mobile Devices

Laptops, cell phones, thumb drives & PDA Ethical requirement to keep confidential ORPC RULE 1.6(a) A lawyer shall not

reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

Password Protect all mobile Devices

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My Favorite Cases: Wrona and Wrona, 66 Or. App. 690 (1984), citing Barone v. Barone, 294 P.2d 609,611-612, 207 Or. 26 (1956)

“…the oral pronouncement of the judge from the bench may be looked to and be considered as controlling on the question whether the judgment as entered conforms to the actual decision. But such a pronouncement is not in itself a judgment, for it is not a final determination of the rights of the parties. ORS 18.010… A judge may change his mind half a dozen times after announcing his decision and take additional testimony, as was done here, which may throw a new light on the problem before him, and, until a formal judgment or decree is finally entered of record, the case remains in the bosom of the court, and no question can arise of modification of the judgment after the expiration of the term.”

Change of Circumstances occurring Before judgment but After trial

In Pickering and Pickering, 100 Or App 47, 784 P2d 130 (1989), citing Sills and Sills, 63 Or App 157, 160 662 P2d 795, rev. den.295 Or 446, 668 P2d 382 (1983) the court stated “a change of circumstances that occurs after trial, but before the judgment is signed, is a proper subject of a motion to modify”. Pickering actually in which during the trial husband testified

that he was going to lose his job. The trial court then issued its letter ruling which awarded spousal support. Husband lost his job prior to the date the judgment was entered.

Husband moved to modify the support award and the trial court denied the motion.

The appellate court stated “the question is which day controls - the date of the dissolution trial or the date of the decree?” It concluded that on these facts the date of the trial controls for purposes of modification.

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Getting the Judge to Change His or Her Mind• After Trial but before Judgment

• “If a change of circumstances occurs after trial, but before the judgment is signed, a party may move to reopen the record to present additional evidence.” Eadie and Eadie, 113 Or App 116, 890 P2d 452 (1995).• In Lesser and Lesser, 79 Or App 738, 720 P2d 405

(1986), the court stated “we also find that the court erred in calculating the amount of taxes that Respondent can offset because it relied in part on information that it received in a letter from Respondent’s attorney after trial. In the absence of a stipulation of the parties, that was error.”

• New Case law? The difference between saying “here is a case that can aid the court” and “here is the new argument I forgot to make last week”

Is it Malpractice to Allow the Judge to refuse to Hear a child witness? (1)

OEC 104. Preliminary questions concerning the qualification of a person to be a witness… shall be determined by the court

OEC Rule 601. General rule of competency: Except as provided in ORS 40.310 to 40.335, any person who, having organs of sense can perceive, and perceiving can make known the perception to others, may be a witness

ORS 40.315: Witness must have personal knowledge A trial court may not refuse to permit minor children to

testify simply because they are children if they possess the requisite testimonial qualifications.

There is no discretion to exclude the child's testimonyunless the probative value of that testimony is substantially outweighed by the risk of severe emotional or psychological harm to the child from testifying. The child's testimony must be admitted.

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What to do when the judge does not want to hear a child witness (2)

ORS 40.325: Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the conscience of the witness and impress the mind of the witness with the duty to do so

Will it be relevant and help the court? There is no age objection!

ORS 107.425(7) Prior to the entry of an order, the court on its own motion or on the motion of a party may take testimony from or confer with the child or children of the marriage…

Practice Tip: There is no legal authority for a court to take ex parte evidence in chambers without counsel present. ORS 107.425(7) …the court shall permit an attorney for

each party to attend the conference and question the child, and the conference shall be reported

What to do when the judge says she does not want to hear a child witness (3)

In Nichols and Fleischman, 67 Or App 256, 677 P2d 731 (1984), where the judge stated he assumed the child would say only things favorable toward the parent who wished to call the child. Reversed

In Kreutzer v. Kreutzer, 226 Or 158, 162, 359 P2d 536 (1961). It was reversible error to exclude the children from the witness stand “…in view of the fact that there was conflict in the testimony on the issue of changed conditions and that the children were in a position to testify concerning some of the matters." Same result in Schaffer v. Schaffer, 243 Or 242, 412 P2d 793 (1966).

Practice Tip: de novo review has been precluded in custody cases where interviews with children took place in chambers and were not made part of the trial court record. See Schuyler v. Haggart, 224 Or 530, 356 P2d 955 (1960) ;Lackey v. Lackey, 29 Or App 673, 564 P2d 293 (1977) ; Meader v. Meader, 194 Or App 31, 40-41 (2004).

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What to do when the judge says she does not want to hear a child witness (4)

In Boldt and Boldt, 344 Or 1, 12 (2008), it was reversible error for the trial court not to allow the child, age 12, to express his opinion regarding his parents dispute over whether he should be circumcised against his will. In that the circumcision couldseriously affect the relationship between the child and his Jewish father and could have a pronounced effect on father’s capability to properly care for the child.

The stated preference of a child in a custody case should be given weight in the custody determination. Wittke and Wittke,85 Or App 623, 629, 738 P2d 206 (1987); Tingen v. Tingen, 251 Or 458, 461, 446 P2d 185 (1968); Hurner v. Hurner, 179 Or 349, 365, 170 P2d 720 (1946). Caveat: Absent the child testifying, any such evidence

would be hearsay.

Is a divorce settlement on the record really a settlement part 1 ?

In Schoren v. Schoren, 110 Or. 272, 214 P. 885, 222 P. 1096 (1924) the Supreme Court affirmed a divorce decree stipulated to in open court where the trial judge reviewed the property settlement agreement, concluded that it was fair, approved it, had the agreement read into the record, and both parties immediately divided the property and made the payments required by the agreement. Then when the husband asked the judge to reconsider the settlement before signing the decree the court reviewed the circumstances occurring both before and after the agreement was read into the record and concluded that the division of property was fair and denied a hearing.

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Is a divorce settlement on the record really a settlement – part 2?

In Wrona and Wrona, 66 Or. App. 690 (1984), the parties entered into an agreement, it was read into the record in open court and was orally approved. However, the next day wife asked the judge to reconsider the fairness of the agreement in the light of the fact that she was unable to obtain the loan she required to "cash out" husband's interest in the house. The appellate court cited Barone and held that: A court is not required to accept a property settlement

agreement between the parties. It may, on consideration, reject an agreement as unfair to one or the other of the parties. McDonnal and McDonnal, 293 Or. 772, 652 P.2d 1247 (1982).

“The role of the trial judge in a dissolution case is to ensure the fairness of the property division. If, after the parties have reached an agreement on a property settlement, the judge does not agree that it is fair, he may disregard it, or treat it as evidence, and order a contested hearing at any time until the judgment has been signed by the judge and entered. “

Using Deposition transcripts of Opposing Parties No need to laboriously ask “did I ask you and did you

answer…” ORS 45.250(1)

At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following provisions of this subsection:

(b) The deposition of a party, or of anyone who at the time of taking the deposition was an officer, director or managing agent of a public or private corporation, partnership or association that is a party, may be used by an adverse party for any purpose.

ORS 45.260. If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce all of it which is relevant to the part introduced and any party may introduce any other parts, so far as admissible under the rules of evidence.

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Use of Depositions of non-parties ORS 45.250(2) At the trial or upon the hearing of a motion or an

interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party for any purpose, if the party was present or represented at the taking of the deposition or had due notice thereof, and if the court finds that:

(a) The witness is dead; (b) The witness is unable to attend or testify because of

age, sickness, infirmity or imprisonment; (c) The party offering the deposition has been unable to

procure the attendance of the witness by subpoena; (d) Upon application and notice, such exceptional

circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or

(e) The deposition was taken in the same proceeding pursuant to ORCP 39 I.” (perpetuation deposition)

Failure to Challenge ORS 107.095 relief regarding consumer debt payments

ORS 107.095(1)(f) does not apply to consumer debt like credit cards, student loans, etc.“After the commencement of a suit for marital annulment, dissolution or separation and until a general judgment therein, the court may provide as follows…“For the temporary use, possession and control of the real or personal property of the parties or either of them and the payment of installment liens and encumbrances thereon.”

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FAILING TO AMEND ANSWERS TO A REQUEST FOR ADMISSIONS

ORCP 45D allows the trial court to allow amendments to a response previously made by a party to a request for admission under ORCP 45.

The allowance of the amendment means that the original matter admitted is no longer conclusively established.

The proponent of the disputed fact continues to have the burden of establishing its existence. However, the rule does not prohibit the initial response from being admitted into evidence. MacDonald v. Cottle, 133 Or App 35, 39, 889 P2d 1320 (1995).

“In ordering that both parties' attorney fees be paid out of the proceeds of the sale of their residence, the trial court was treating those fees like all the other debts which the parties had incurred during their marriage. That makes good sense, for the costs associated with dissolving a marriage are as much an incident of the marriage as are the costs incurred in maintaining it, e.g., purchase of a family residence.”Moore and Moore, 641 P.2d 74, 56 Or. App. 90 (1982).

The Case for Having the Court Having All Attorney Fees to be paid from marital assets

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Protecting Your client and Yourself Explain Potential Settlements in Writing Identify features of a settlement than can change in the

future or that carry risk: Unsecured money awards, Spousal support

modifications, Changing markets Be able to demonstrate reasonable effort, investigation,

thought and explanation of future risks Avoid situations where important decisions must be made

“on the spot” Explain the economics of trial, settlement and cost of

litigation in writing at the start of the case Realizing that withdrawal is not necessarily protection from

ethics or malpractice claims Sue at your own peril

Questions?

Gilbert Feibleman Salem, Oregon503-399-9128

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uTCr CHAnGEs rE COnFIDEnTIAL InFOrmATIOn FOrms (CIFs) AFFECTInG FAmILy LAw DOCumEnTs

UTCR Changes re Confidential Information Forms (CIFs) Affecting Family Law Documents

A. MONEY AWARD SECTIONS

ORS 18.042 requires that money award sections in judgments must contain specific content, including the following:

Name and address for each Judgment Creditor Name and address for each Judgment Debtor (if known), Name, address, and phone number of attorney (if any) for each Judgment Creditor, Name of attorney for each Judgment Debtor (if known) Year of birth for each Judgment Debtor (if known), Final four digits of social security numbers for each Judgment Debtor (if known), (or the full Tax Identification number

for each Judgment Debtor, if known), and The state of issuance and the final four digits of driver’s license numbers for each Judgment Debtor (if known).

Changes to UTCR 2.130 effective on September 1, 2010, explicitly make the CIF procedure inapplicable to money awards. Therefore, the information bulleted above must be set out in the money award section of a judgment.Language in the money award section that states “Refer to CIF” (or something similar) is no longer appropriate.

B. WHAT MUST BE IN A CIF?

Anything the new UTCR defines as “confidential personal information.” Under the new rule, these items are: Party’s or a party’s child’s SSNParty’s or a party’s child’s date of birth

Driver license number Former legal names

Employer’s name, address and telephone number

Refer to the CIF in the document where the required information would otherwise appear. Language such as “Separately filed under UTCR 2.130,” “See CIF,” or similar words are appropriate.

C. WHAT ABOUT INFORMATION REQUIRED IN CHILD SUPPORT ORDERS/JUDGMENTS?

ORS 25.020(8)(a) sets out required content for child support orders and judgments. Information required under this statute is not part of the money award section and therefore must be provided in a CIF if that particular item is “confidential personal information” as defined by the CIF rule. (See B., above)

Information required by ORS 25.020(8)(a) for inclusion child support orders/judgments includes: Place in CIF?

Residence/mailing/contact address of each party No Social Security number of each party Yes Telephone number of each party No Driver license number of each party Yes Name/address/telephone number of employers of each party Yes Names and dates of birth of all joint children No re name Yes re DOB*

* Consider placing the age (e.g., “age 3 years”) in the document to help provide the judge with context for proposed rulings.

NOTE: The Court is required to provide a copy of the CIF to the Oregon Child Support Program. UTCR 8.010(9) therefore requires the filing party to supply the extra copy of the judgment and CIF to the court for this purpose.

Prepared by: Multnomah County Circuit Court (Reviewed by OSCA) 10.07.10

Do not place addresses or telephone numbers in CIFS, effective 9/1/10. However, you may use contact or mailing addresses in a court document whenever an address is required for family law cases. See ORS 25.011.

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Chapter 5

rEbuTTInG THE PrEsumPTIOn OF EQuAL COnTrIbuTIOn

John l. barlow

Barnhisel Willis Barlow & Stephens PCCorvallis, Oregon

Table of Contents

I. Initial Analysis in Property Division Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–1A. Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004) . . . . . . . . . . . . . . . . . . . . 5–1B. Massee and Massee, 328 Or 195, 204, 205, 970 P 2d 1203 (1999). . . . . . . . . . . . . 5–1

II. Cases to Know . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–1A. Massee and Massee, 328 Or 195, 970 P2d 1209 (1999) . . . . . . . . . . . . . . . . . . 5–1B. Hixson and Hixson, 235 Or App 217, 230 P3d 946, on recons. 235 Or App 570,

232 P3d 996 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–2C. Tsukamaki and Tsukamaki, 199 Or App 577, 112 P3d 416 (2005). . . . . . . . . . . . . 5–2D. Proctor and Proctor, 203 Or App 499, 125 P3d 801 (2005) . . . . . . . . . . . . . . . . 5–2E. Carlson and Carlson, 236 Or App 291, 236 P3d 810 (2010) . . . . . . . . . . . . . . . 5–2

III. Effect of Separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–3A. Lemke and Lemke, 89 Or 145, 611 P2d 295 (1980) . . . . . . . . . . . . . . . . . . . . . 5–3B. Clapperton and Clapperton, 58 Or App 577, 649 P2d 620 (1982). . . . . . . . . . . . . 5–3C. Deming and Deming, 240 OrApp 447, 246 P3d 513 (2011) . . . . . . . . . . . . . . . 5–3D. English and English, 223 Or App 196, 194 P3d 887 (2008). . . . . . . . . . . . . . . . 5–3

IV. Homemaker Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–3A. Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–3B. Value of Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–3C. How to Measure the Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–4

V. The “Olesberg Fix” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–4A. Olesberg and Olesberg, 206 Or App 496, 136 P3d 1202 (2006), rev. den. 342 Or

633 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–4B. Senate Bill 386, 2011 Legislature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–4

VI. “Just and Proper” Analysis—or Does Any of This Matter? . . . . . . . . . . . . . . . . . . 5–5

Appendix—Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–7

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Chapter 5—rebutting the Presumption of Equal Contribution

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I. InITIAL AnALysIs In PrOPErTy DIvIsIOn CAsEs

A. Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004)

In assessing whether a party has satisfied his or her burden to overcome the presumption of equal contribution, ORS 107.105(1)(f) requires the court to consider both economic and non-economic spousal contributions. If a party ultimately rebuts the presumption that the other spouse contributed equally to a disputed marital asset, then the Court decides how to distribute that marital asset without regard to any presumption and, instead, considers only what is just and proper in all of the circumstances,” including the proven contributions of the parties to the asset.” Kunze, 92 P3d at 135. When a party has proved that a marital asset was acquired free of any contributions from the other spouse, absent other considerations, it is “just and proper” to award that marital asset separately to the party who has overcome the statutory presumption.

b. Massee and Massee, 328 Or 195, 204, 205, 970 P 2d 1203 (1999)

“In deciding whether either party has rebutted the presumption of equal contribution, the court may consider any admissible evidence that is probative of the question whether the parties contributed unequally to the acquisition of marital assets.” (Emphasis supplied.) The ultimate question is whether the spouse seeking to rebut the presumption relating to a particular asset has proved, by a preponderance of the evidence, that the other spouse did not contribute equally to the acquisition of that asset. “The last important issue that is still unclear after Kunze is whether courts will inquire closely into the relative contributions of spouses in determining whether the presumption of equal contribution to marital assets has been rebutted.” Leslie Joan Harris, Tracing, Spousal Gifts, and Rebuttable Presumptions: Puzzles of Oregon Property Distribution Law, 83 Or L Rev 1291, 1321 (2005).

II. CAsEs TO KnOw

A. Massee and Massee, 328 Or 195, 970 P2d 1209 (1999)

Two-year marriage. Issue was whether appreciation of assets brought into marriage by husband and separately held by him during the marriage was a marital asset. Because wife functioned as the “homemaker spouse,” ORS 107.105(1)(f) requires the court to determine that the homemaker spouse made “a contribution” to the acquisition of marital assets and prohibits the court from determining that the homemaker spouse made no contribution. “A presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. The spouse disputing the presumption of equal contribution has the burden of proving by a preponderance of the evidence that it is more probable than not that the other spouse did not

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contribute equally to the acquisition of the property.” (Quoting Stice and Stice, 308 Or 316, 326, 779 P2d 1020 (1989).)

b. Hixson and Hixson, 235 Or App 217, 230 P3d 946, on recons. 235 Or App 570, 232 P3d 996 (2010)

Thirteen-year marriage. Husband rebutted presumption of equal contribution to marital appreciation of veterinary clinic by showing that wife was not involved in daily affairs of the business, did not work in the business, and was not an officer, owner, or shareholder. Husband’s overall contribution to the acquisition of the asset included long hours of work at the clinic, and consideration that the business grew through the personal efforts of its employees outweighed wife’s homemaker contribution.

C. Tsukamaki and Tsukamaki, 199 Or App 577, 112 P3d 416 (2005)

Twenty-nine–year marriage. No children. Husband was a pharmacist, and wife worked in higher education. Disputed property consisted of annual gifts received by wife from her parents and maintained in a separate account. Case is significant in establishing that application of the presumption is not a “zero-sum game;” a 75%/25% division of the disputed asset was ordered. “By its terms, the statutory presumption applies to the act of acquiring property during the marriage, regardless of whether the asset is jointly or separately held. Thus, the scope of the presumption is unrestricted in two salient ways: (1) it can apply to successive acquisitions of the same property during the marriage, and (2) it is of no consequence whether the form of acquisition is joint or separate. The trial court should admit evidence about the details of each party’s activities throughout the marriage, should attempt to assign values to those activities, and then should attempt to correlate those values to the party’s marital assets.” 199 Or App at 592 (Brewer, J concurring). Courts “probably will require a particularized assessment of a spouse’s contribution to the acquisition of a disputed asset except in cases involving a homemaker spouse.” Id. at 597.

D. Proctor and Proctor, 203 Or App 499, 125 P3d 801 (2005)

Although case found presumption not rebutted, it suggests that tracing of each party’s contributions is appropriate analysis to rebut or uphold presumption.

E. Carlson and Carlson, 236 Or App 291, 236 P3d 810 (2010)

Three-year marriage following two years of cohabitation. Husband worked for an investment business owned with his brother. Wife had substantial health problems and did not work outside the home. Wife sought domestic partnership analysis for division of marital property, in addition to disposition of marital assets. Wife awarded 15% of the appreciation in the value of the business under the “just and proper” analysis.

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III. EFFECT OF sEPArATIOn

A. Lemke and Lemke, 89 Or 145, 611 P2d 295 (1980)

Eight-year marriage followed by division of property and 20 years of separation. “Extended period of mutual financial independence” is the key to rebutting the presumption relating to property acquired during period of separation.

b. Clapperton and Clapperton, 58 Or App 577, 649 P2d 620 (1982)

Length of separation not as important as relationship of actions during marriage to a party’s acquisition of the asset, even if acquired during separation.

C. Deming and Deming, 240 OrApp 447, 246 P3d 513 (2011)

Twenty-eight–year marriage. Wife 56, husband 53 at time of trial; two adult children. Husband wanted to value retirement accounts for purposes of property division as of date of separation; Wife argued for valuation as of trial date. Throughout marriage, parties functioned as a marital unit for financial purposes, each working outside the home and contributing to the marital estate; wife did not work outside the home for the last 14 years of the marriage. Parties’ separation of only eleven months’ duration and lack of financial independence during the separation supported finding that presumption was not rebutted as to growth in husband’s retirement accounts.

D. english and english, 223 Or App 196, 194 P3d 887 (2008)

Cited in Deming, supra, as example of “the type of separation that will not rebut the presumption of equal contribution.” Despite eleven-year separation, separate bank accounts, and lack of joint credit, the parties remained joint owners of the family home and husband paid the mortgage as well as several utility bills. The parties continued to file joint tax returns, and husband continued to cover the parties’ children with medical insurance through his work. Wife’s reliance on husband for substantial financial assistance during the entirety of their time apart and the parties holding themselves out as married during the separation, “most notably by filing joint tax returns[,]” supported the presumption of equal contribution.

Iv. HOmEmAKEr COnTrIbuTIOn

A. Definition

“Homemaking” is the “creation and maintenance of a wholesome family environment.” Webster’s Third International Dictionary, 1083 (cited in Massee, 328 Or 205, Note 4.

b. value of Contribution

Value of a homemaker spouse’s contributions “is not simply measured in terms of the economic value of child care; rather, it entails evaluating the extent to which such work also enables the other spouse to travel or to devote time and energy to a business that otherwise would

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have been devoted to the day-to-day obligations of child rearing.” Carlson and Carlson, 236 Or App at 304.

C. How to measure the Contribution

1. ORS 107.105 (1) (f) “does not assign any particular evidentiary weight to the homemaker’s contribution.” Massee and Massee, 328 Or at 203. 2. Spouse’s work as a homemaker does not conclusively establish that the spouse’s contribution to the acquisition of a marital asset was equal. Carlson and Carlson, citing Hixson and Hixson, 235 Or App at 225. 3. Homemaker spouse’s overall contribution may consist of a combination of domestic contributions and economic or other nondomestic contributions. Massee and Massee, 328 Or at 205. 4. When marital asset in dispute is a business, the homemaker spouse’s work must be connected directly or indirectly to the development of that business. a. Was spouse involved in daily affairs of business? b. Did spouse work at the business? c. Is growth of business tied in any way to efforts of homemaker spouse?

Query: Have we reached the point, predicted by Profes-sor Harris, in which “ inquiring in detail about who made greater contributions to the family’s well-being during the marriage may undermine the parties’ willingness to set aside their own self-interests during the marriage in favor of the common good of the family?”

v. THE “OLeSBerg FIx”

A. Olesberg and Olesberg, 206 Or App 496, 136 P3d 1202 (2006), rev. den. 342 Or 633 (2007)

Evidence that inheritance devolved only to husband and his brothers did not rebut presumption, absent specific evidence that husband’s mother did not intend wife to benefit from inheritance. “We conclude that, to defeat the presumption, Husband must provide affirmative evidence that wife was not an object of her mother-in-law’s donative intent.” 206 Or App at 504.

b. senate bill 386, 2011 Legislature

Joint effort of Family Law and Estate Planning Sections of Oregon State Bar. “The Olesberg ruling is widely viewed by both estate planning attorneys and family law attorneys as being contrary to the most basic and firmly held tenet of estate planning: A testator should be able to leave property to a specific person in his will and know that the property is, at least presumptively, going to that person and not someone else.” Testimony of Russell Lipetzky Before Senate Judiciary Committee, March 10, 2011.

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ORS 107.105(1)(f):

(C) Except as provided in subparagraph (D) of this paragraph, there is a rebuttable presumption that both parties have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held.

(D) (i) Property acquired by gift to one party dur-ing the marriage and separately held by that party on a continuing basis from the time of receipt is not subject to a presumption of equal contribution under subparagraph (C) of this paragraph.

(ii) For purposes of this subparagraph, “property ac-quired by gift” means property acquired by one party through gift, devise, bequest, operation of law, beneficiary designation or inheritance.

vI. “JusT AnD PrOPEr” AnALysIs—Or DOEs Any OF THIs mATTEr?

See, e.g., Francis and Francis, 212 Or App 310, 157 P3d 1202 (2007); Hixson and Hixson, 235 Or App 217, 230 P3d 946, on recons. 235 Or App 570, 232 P3d 996 (2010); Carlson and Carlson, 236 Or App 291, 236 P3d 810 (2010); Cook and Cook, 240 Or App 1, 248 P3d 420 (2010).

5–6


5–7


APPEnDIx—PrEsEnTATIOn sLIDEs

2/14/2012

1

Rebutting the Presumption of Equal Contribution

John L. BarlowBarnhisel Willis Barlow & Stephens, PC

▪ Basic Considerations:▪ How Long Have the Parties Been Separated?▪ Is there a “Homemaker Spouse?”▪ Were any assets the result of gifting or inheritance?▪ Kunze analysis for each disputed asset

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2/14/2012

2

▪Massee: ▸ Length of marriage not as important.▸ Appreciation of property is marital asset.▸ Burden is on spouse seeking to rebut presumption. Must do so by preponderance of evidence.

▪Kunze: ▸ That an asset is commingled does not mean that you cannot determine each party’s contribution to the asset.▸ If you can trace, presumption may be overcome.– Kunze did so on all contested assets.▸ Commingling concept relevant to rebuttable presumption analysis as well as “just and proper” determination

Effect of Separation

Lemke

Extended period of mutual financial independence

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3

Effect of SeparationClapperton

▪ Assets acquired during separation remain subject to presumption.▪ If “roots of assets” extend far back into marriage, presumption not rebutted.▪ Examine extent to which “new asset” is actually “use of assets already owned.”

Effect of SeparationDeming

▪ Increases in retirement accounts during separation are earnings “rooted” in parties’ joint efforts during marriage.▪ Even passive appreciation during separation period subject to presumption.▪ Relatively short separation (11 months) insufficient to overcome presumption in long-term marriage.

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4

Effect of SeparationEnglish

▪ Length of separation not as important.▪ Joint ownership of assets; joint filing of tax returns.▪ One spouse’s continued financial reliance on other.

Separation

Longer rather than short durationMutual financial independence

Lack of “roots” in marital assets or activitiesTo what extent does separation help identify

distinct contributions?

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5

The Homemaker Contribution

▪ Added to ORS 107.105(1) as part of presumption▪ Statute does not assign “particular evidentiary weight” to the contribution.▪ “Contribution” itself not defined.▪ “[N]onearning spouses who maintain the home, do cooking and cleaning and raise the children, also contribute to the acquisition of property in a tangible, substantial way.” Engle and Engle, 293 Or 207, 214 (1982).

Homemaker ContributionDoes Spouse’s Work as Homemaker Relate to the Asset?

Does it Matter?

▪Passive appreciation of separately owned asset.▪Business “exception.”▪ Spouse’s involvement in daily conduct of business▸ Spouse’s employment in business▸ Was growth made possible by spouse’s other efforts?

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The Homemaker Contribution

▪To what extent does the homemaker’s contribution continue during a separation?▸ Less likely to relieve spouse of domestic burdens▸ Less likely to be related to business activities▸ Analysis depends on nature of disputed asset

Homemaker ContributionRelative Value Analysis (Business)

▪Carlson, 236 Or App 291, 305-307 (2010)▸ Did homemaking include child-rearing?▸ How were household chores allocated?▸ Evidence that other spouse was relieved of duties by homemaker spouse’s activities (or were they “electives”?)▸ “Moderate” homemaking efforts do not get you very far.

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7

Homemaker Contribution

▪Does Analysis of Value “improperly deprive [the homemaker spouse] of the consideration of homemaker contribution”?

▸ Massee, 328 Or at 208.

The “Olesberg Fix”

▪“[W]ife had been the sole object of her aunt’s donative intent, and for that reason...wife has overcome the presumption that husband contributed equally to the initial acquisition of than property.” ▪Kunze, 337 Or at 143.▪“The presumption of the husband’s equal contribution by non-financial means is rebutted because wife’s acquisition was by sole inheritance...”▪Pierson, 294 Or 117, 123 (1982).

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8

The “Olesberg Fix”Olesberg and Olesberg, 206 Or App 496, 136 P3d 1202,

1206 (2006)

We agree with wife that to rebut the presumption of equal contribution, it is not sufficient to show simply that the inheritance devolved only to husband and his siblings in equal shares. The fact that the mother's estate was divided three ways among her children does not establish that she had no intention to benefit

wife, her daughter-in-law of 25 years. If that evidence were sufficient to overcome the presumption of equal contribution, the

presumption would not only be rendered meaningless, but it would also incorrectly place the burden on the nonrecipient

spouse to rebut it.”

The “Olesberg Fix”

▪ “Property acquired by gift to one party during the marriage and separately held by that party on a continuing basis from the time of receipt is not subject to a presumption of equal contribution.▪ “‘[P]roperty acquired by gift’ means property acquired by one party through gift, devise, bequest, operation of law, beneficiary designation or inheritance.”▸ ORS 107.105(1)(f)(D)

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5–16


6A–i

Chapter 6A

unDErsTAnDInG OrEGOn CHILD CusTODy LAws: THrEE bEsT InTErEsTs

CAsEs TO brInG wITH yOu On A DEsErT IsLAnD—PrEsEnTATIOn sLIDEs

kiMberly a. QuaCh

Lechman-Su & Quach PCPortland, Oregon

6A–ii

Chapter 6A—Three best Interests Cases to bring with you on a Desert Island—Presentation slides

6A–1


1/30/2012

1

K I M B E R L Y A . Q U A C HF E B R U A R Y 2 4 , 2 0 1 2

O S B C o n t i n u i n g L e g a l E d u c a t i o n

Understanding Oregon Child Custody Laws: Three Best Interests Cases to Bring with You on

a Desert Island

ORS 107.137: Six Factors Considered in Determining Custody of a Child

107.137 Factors considered in determining custody of child. (1) In determining custody of a minor child under ORS 107.105 or 107.135, the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court shall consider the following relevant factors:(a) The emotional ties between the child and other family members;(b) The interest of the parties in and attitude toward the child;(c) The desirability of continuing an existing relationship;(d) The abuse of one parent by the other;(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.

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ORS 107.137: Weighting of Factors

(2) The best interests and welfare of the child in a custody matter shall not be determined by isolating any one of the relevant factors in subsection (1) of this section, or any other relevant factor, and relying on it to the exclusion of other factors. However, if a parent has committed abuse, as defined in ORS 107.705, there is a rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse.

ORS 107.137:Irrelevant Factors

(3)In determining custody of a minor child under ORS 107.105 or 107.135, the court shall consider the conduct, marital status, income, social environment or life style of either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the child.

(4) No preference in custody shall be given to the mother over the father for the sole reason that she is the mother, nor shall any preference be given to the father over the mother for the sole reason that he is the father.

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3

ORS 107.137 SummaryRelevant Irrelevant

Emotional ties between the child and other family members

U

Parties’ interest in and attitude toward the child

U

Desirability of continuing an existing relationship

U

The abuse of one parent by the other U

Preference for the primary caregiver of the child

U If caregiver deemed unfit

The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child

U (1) If the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and

(2) If a continuing relationship with the other parent will endanger the health or safety of either parent or the child

A parent committed abuse as defined in ORS 107.705

Rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse

The conduct, marital status, income, social environment or life style of either party

Only if any of these factors are causing or may cause emotional or physical damage to the child

Mother v. Father U

Garza v. Ayala, 178 Or App 30, 29 P3d 1219 (2001)

Unmarried parents of 4-5 year old boy Mother primarily parented child, with Father having rather limited

contact Mother relocated from California to Oregon when child was 3-4 after

Father had not seen him for 1 year Father took child from Mother and removed him to California, seeking

custody there Mother obtained Oregon custody order and writ of assistance Custody evaluator recommended Mother have custody Trial court awarded custody to Father; Court of Appeals reversed

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Garza v. Ayala:Legal Analysis

Most important factor in custody analysis is who has historically served as the child’s primary parent unless that parent is unfit. ORS 107.137(4). Continuity in parent is in child’s best interests.

Father’s removal of child to California was “upsetting and not in his best interests.”

In an otherwise “close case” the Court will grant custody to the primary parent.

Buxton v. Storm236 Or App 578, 238 P3d 30 (2010), rev. den., 394 Or 654, 249 P3d 542 (2011)

Factual Summary

Court characterizes case as “highly contentious” Unmarried parents of 6-7 year old boy Father is plumber Mother is Oregon attorney in inactive status – she alleges Father stole

her mafia client’s money, requiring her to move to inactive status Each has one non-joint child Father has sole custody of a biological teenage daughter Father is married and has a stepdaughter 2 years older than joint

child Mother has sole custody of son 5 years younger than joint child, and

this boy has no contact with his father

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Buxton v. Storm:Procedural History

First Stipulated Judgment: Mother drafted first custody judgment, which the parties agreed to set aside

Second Stipulated Judgment: Mother drafted second custody judgment granting her sole custody and entitling Father to “extremely limited parenting time”

Custody Modification #1: Father brought in 2003 when child 3. Trial was in 2005. Court found no substantial change of circumstances, so it did not modify custody. However, it increased Father’s parenting time to 2 weeks per month.

Custody Modification #2: Father brought in December 2005, and it was heard in Summer 2007

Buxton v. Storm:Legal Rules

A party seeking a modification of custody must satisfy a 2-part test:

(1) “circumstances relevant to the capacity of either the moving party or the legal custodian to take care of the child properly have changed since the entry of the last custody order,” and (2) “considering the asserted change of circumstances in the context of all relevant evidence, it would be in the child’s best interests to change custody.’” Buxton, 236 Or App at 592 (citing Boldt and Boldt, 344 Or 1, 9, 176 P3d 388, cert. den., 555 US 814, 129 S.Ct. 47, 172 LEd2d 23 (2008).

“Where the claimed change of circumstances involves events of inadequate care and supervision, they ‘must be of [such] a nature or number [reflecting] a course of conduct or pattern [that] has or threatens to have a discernible adverse effect upon the child.’” Buxton, 236 Or App at 593 (quoting Niedert and Neidert, 28 Or App 309, 314, 559 P2d 515, rev. den., 277 Or 237 (1977). “A parent seeking to change custody must establish by a preponderance of the evidence that it is in the child’s best interest to do so.” Buxton, 248 Or App at 593. Court strictly adheres to ORS 107.137 factors. Buxton, 248 Or App at 593-96.

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Buxton v. Storm: Practitioner’s Tips – A List of Things “Not to Do”

Even sole legal custodian should include non-custodial parent in counseling with the child (5 separate evaluations)Custodial parent should not falsely accuse non-custodial parent of serious crimes – Mother alleged Father stole cash from her belonging to mafia client, that he set his trailer home on fire, and that he sexually abused childCustodial parent should not seek supervised parenting time without causeCustodial parent should not change child’s physical appearance for exchanges – Mother dyed child’s hair red & falsely accused Father of doing so, put nail polish on boy, and had his ears piercedPrevailing in custody modifications requires good professionals – Billie Bell, MSW, Dr. Sharlene Sabin, Dr. Harry Dudley, Psy.D.Don’t lie to child’s attorney

Connelly and Connelly215 Or App 465, 169 P3d 1279 (2007)

Factual Background

Parties had two children who were ages 12 and 14 at the time of modification. Mother originally was appointed as the children’s sole legal custodian when children were approximately two and four.

Father’s Modification Action: Father filed a modification action alleging that mother’s ability to parent the children had deteriorated as the children were unsupervised in her care, they were violent and disruptive, and they were doing poorly in school.

Trial Court: Father’s motion to modify granted.

Appellate Court: Reversed.

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Connelly and Connelly215 Or App 465, 169 P3d 1279 (2007)

Legal Analysis

For Father to prevail, he must demonstrate a substantial change of circumstances andthat a change would be in the children’s best interests

“[T]he record does not reflect that mother has decreased the amount of supervision she provides the children, that she has altered their living arrangements in any way that is detrimental to the children, or that she has experienced significant mental, physical or emotional problems that affect her ability to parent.” 215 Or App at 473.

“[A] custodial parent’s unreasonable failure to communicate with a noncustodial parent about substantial matters pertaining to the hcildren can constitute a material change of circumstances.” Id. at 474.

“There are . . . Circumstances in which, notwithstanding a custodial parent’s best and most careful and loving efforts, an adolescent child will engage and persist in profoundly disturbing, even self-destructive, behaviors. Ultimately, however, it is not the child’s conduct – but , instead, the custodial parent’s effort – that determines whether the parent has engaged in a ‘course of conduct or pattern of inadequate care.’” Id. at 478 (quoting Collins and Collins, 183 Or App 354, 358, 51 P3d 691 (2002)).

Thank You

6A–8


6B–i

Chapter 6b

unDErsTAnDInG OrEGOn CHILD CusTODy LAws—PrEsEnTATIOn sLIDEs

Mark kraMer

Kramer & AssociatesPortland, Oregon

6B–ii

Chapter 6b—understanding Oregon Child Custody Laws—Presentation slides

6B–1


2/8/2012

1

Pre-Troxel

ORS 109.119(1999) allowed custody to a third party if –• Appropriate in the case, and • In the best interests of the child

The Troxel Case

Seminal case of Troxel v. Granville, 530 US 57, 120 S. Ct. 2054,147 L.Ed 2d 49 (2000) - awarding visitation to a non-parent, over the objections of a parent is subject to constitutional limitations

Specifically recognized as a fundamental liberty interest, the “interest of parents in the care, custody and control of their children.”

Affected laws in virtually all of the states, significantly reduced previously recognized rights of grandparents, step-parents and psychological parents in favor of birth parents

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Troxel Applied In Oregon –The New Law

Oregon laws regarding Grandparent and Psychological Parent rights were fundamentally modified by the 2001 legislature.

This legislation, amending ORS 109.119, which became law on July 31, 2001, was intended to make Oregon’s law consistent with the US Supreme Court’s decision in 2000, Troxel v. Granville

The Troxel Presumption Rebutting the Presumption

ORS 109.119 establishes a presumption that a legal parent acts in the best interest of a child in cases where a third party seeks custody or visitation rights.

To obtain custody or visitation rights a third party must rebut that presumption.

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3

The Rebuttal Factors

I. If the petitioning person is or recently has been the child’sprimary caretaker;

II. The legal parent is unwilling or unable to care adequatelyfor the child;

III. If the child would be psychologically, emotionally orphysically harmed if no custody or visitation relief wasordered;

IV. The legal parent fostered, encouraged or consented to therelationship between the child and the third party;

V. Granting the requested relief would not substantiallyinterfere with the custodial relationship between the legalparent and the child; and

VI. The legal parent unreasonably denied or limited contactbetween the child and the third party.

Troxel Applied In Oregon –The New Standard

In O’Donnell-Lamont and Lamont, 337 Or 86 (2004), the Oregon Supreme Court reversed the Court of Appeals and restored custody of the children to grandparents. The Court upheld revisions to ORS 109.119 as meeting the constitutional standards mandated by Troxel.

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Relevant Facts:

2 kids ages 8 and 12 at time of Supreme Court Decision

Paternal Grandparents (PGPTS) always involved

Turbulent marriage with domestic violence, Mother awarded custody at divorce

Mother dies when kids are 3 and 7; Father places kids with PGPTS

After custody proceedings started by PGPTS, kids go back and forth until Father takes them to Montana without notice to PGPTS or Court

Deconstructing O’Donnell-Lamont 2

Legal history

Trial court awards custody to GPTS

Court of Appeals 1 – reverses trial court; custody to Father

Court of Appeals 2 (en banc) – splits 5-5; custody still with Father

Supreme Court – applying Troxel and ORS 109.119(2001), reverses Court of Appeals. Custody to PGPTS

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Supreme Court’s Analysis

Distinguished between parental fitness in a termination case and an ORS 109.119 custody case – 109.119 standard “less demanding;”

Rejects Father’s theory that PGPTS can get custody only if it is shown that parent is unfit or if placement with parent will harm child;

Troxel only requires parents’ interests be given “some special weight;”

“The statutory touchstone is whether the evidence at trial overcomes the presumption that a legal parent acts in the best interest of the child, not whether the evidence supports one, two, or all five of the non-exclusive factors identified in ors 109.119 (4)(b).”


Why Grandparents Prevailed

Father not deemed “unable to care” for children, and Father’s initial consent to Grandparent custody given little weight, but . . .

Dr. Vien custody evaluation predicts harm to children if custody to father;

Grandparents had been primary caretakers after Mother’s death

Father relocated kids to Montana disregarding Grandparents and kids’ best interests

Evidence shows “serious present risk of psychological, emotional or physical harm”

Grandparent “win” on 4 of 5 factors

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6

The Devolution of O’Donnell-Lamont 1

+++State v. Wooden, 184 Or App 537, 552 (2002) Custody of child to maternal grandparents, reversed in favor of father (mother murdered).

+++Strome and Strome, 201 Or App 625 (2005). On remand from Supreme Court to reconsider earlier decision in light of Lamont, the court affirms its prior decision (reversing the trial court) and awarding custody of the 3 children to birth father, who the trial court had awarded to paternal grandmother.

---Winczewski and Winczewski, 188 Or App 667 (2003), rev. den. 337 Or 327 (2004), CA A112079. [Please note that the Winczewski case was issued before the Supreme Court’s decision in Lamont.] The en banc Court of Appeals split 5 to 5 and in doing so, affirmed the trial court’s decision, awarding custody of two children to paternal grandparents over the objection of birth mother, and where birth father was deceased

+++Sears v. Sears & Boswell, 190 Or App 483 (2003), rev. granted on remand, 337 Or 555 (2004), CA A117631. The court reversed the trial court’s order of custody to paternal grandparents and ordered custody to mother where the grandparents failed to rebut the statutory presumption that mother acted in the best interests of a 4-year old child

The Devolution of O’Donnell-Lamont 2

---Wurtele v. Blevins, 192 Or App 131 (2004), rev. den., 337 Or 555 (2004), Trial court’s custody order to maternal grandparents over birth father’s objections

+++Sears v. Sears & Boswell, 198 Or App 377 (2005), The Court of Appeals, after remand by the Supreme Court to consider the case in light of Lamont adheres to its original decision reversing the trial court’s order of custody to maternal grandparents and ordering custody to birth mother.

+++Dennis and Dennis, 199 Or App 90 (2005). The trial court had awarded custody of father’s two children to maternal grandmother. Based upon ORS 109.119 (2001) and Lamont, the Court of Appeals reversed, finding that grandmother did not rebut the statutory presumption that birth father acts in the best interest of the children.

+++Muhlheim v. Armstrong, 217 Or App 275 (2007), The Court of Appeals reversed the trial court’s award of custody of a child to maternal grandparents.

+++Nguyen and Nguyen, 226 Or App 183 (2009), an award of custody to maternal grandparents was reversed and custody was awarded to birth mother

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Third Party Visitation - An Uphill Battle

G.J.L. v. A.K.L., 244 Or App 523 (2011), CA A143417 (Petition for Review Denied).

RELEVANT FACTS: Grandparents were foster parents of grandson for most of his first 3 years of life. After DHS returned child to birth parents and wardship was terminated, parents cut off all contact with grandparents.

TRIAL COURT FOUND: grandparents had established a grandparent-child relationship and that continuing the relationship between them and child would be positive.

TRIAL COURT HELD: No relief for grandparents because of the “significant unhealthy relationship” between grandparents and mother. No expert testimony was presented at trial.

ON APPEAL, the Court found that grandparents had prevailed on three statutory rebuttal factors (recent primary caretaker; prior encouragement by birth parents; and current denial of contact by parents). However, relief denied because grandparents failed to prove a “serious present risk of harm” to the child from losing his relationship with grandparents, and that grandparents’ proposed visitation plan (49 days per year) “wouldsubstantially interfere with the custodial relationship.”

And For Your Future Reference

See links at www.kramer-associates.com

• http://www.kramer-associates.com/mkgrandparentsrights.pdf

• http://www.kramer-associates.com/mkgrandparentsrightsaftertroxel.pdf

6B–8


6C–i

Chapter 6C

unDErsTAnDInG OrEGOn rELOCATIOn LAw: THrEE rELOCATIOn

CAsEs TO brInG wITH yOu On A DEsErT IsLAnD (PrOvIDED yOu GET

PErmIssIOn TO mOvE THErE)patriCia l. MCguire

Bobzien McGuire LLPPortland, Oregon

Table of Contents

Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6C–1

Practice Tip . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6C–7

6C–ii

Chapter 6C—understanding Oregon relocation Law

6C–1


PrEsEnTATIOn sLIDEs

2/10/2012

1

Patricia L. McGuireBobzien McGuire LLC

[email protected]

It is the policy of this state to:(1) Assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child;(2) Encourage such parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage;. . . .(5) Consider the best interests of the child and the safety of the parents in developing a parenting plan.

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2

(1) In any proceeding to establish or modify a judgment providing for parenting time with a child, except for matters filed under ORS 107.700 to 107.735, there shall be developed and filed with the court a parenting plan to be included in the judgment. A parenting plan may be either general or detailed.. . . .(4)(a) The court shall develop a detailed parenting plan when:

(A) So requested by either parents; or(B) The parent or parents are unable to develop a

parenting plan.(4)(b) In developing a parenting plan under this subsection, the court may consider only the best interests of the child and the safety of the parties.

In any court order of judgment granting custody of a minor child and parenting time or visitation rights relating to the child, except for an order under ORS 107.700 to 107.735, the court shall include in its order a provision requiring that neither parent may move to a residence more than 60 miles further distant from the other parent without giving the other parent reasonable notice of the change of residence and providing a copy of such notice to the court.

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3

Divorced parents of 2-1/2 year old boy Father had alternating weekends from Friday until Sunday,

with alternating Wednesday dinner visit (three hours) Proposed move from Coos Bay to Klamath Falls (nine-hour

round trip drive) Mom wanted to be closer to her sick mother and her

extended family Dad moved to modify custody Custody evaluator recommended Mom retain custody but

that both parties be prohibited from moving from Coos Bay Dad then withdrew motion to modify custody Trial court ruled relocation not in child’s best interests

Different Burdens of ProofDad’s initial motion to modify custody triggered the two-part test: Since the last custody order, has there been a substantial change

of circumstances in either party’s capacity to properly care for the child?

Considering the change of circumstances in context of all relevant information, is it in the child’s best interests to change custody?

However, once Dad withdrew his motion to modify, the sole question was whether it was in the best interests of the child to relocate.

PRACTICE TIP: To block the move, file a motion to prohibit relocation or to enforce current parenting plan, for lower burden of proof.

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4

Holding on appeal: move not allowed (trial court affirmed) In relocation case, sole focus is best interests of the child

and safety of the parties Use ORS 107.137 custodial factors to determine best

interests of the child De novo review of trial court’s best interests

determinations (“. . . [I]n reviewing trial court decisions that so often involve considerations of credibility and demeanor, we do so cautiously, reversing only for clearly articulable reasons.”)

Mom had no evidence that move would benefit child or how it would affect her ability to parent

Divorced parents of 3½-year-old girl Seven months after divorce, Mom proposed to move from

Florence to Australia (her family home) for her “well-being and personal growth”

Dad moved to modify custody Custody evaluator recommended Mom retain custody but that it

wasn’t in child’s best interests to relocate Dad then withdrew motion to modify custody; parties settled 18 months later, Mom filed to change parenting plan so she could

move (child now 5, no change of circumstances from last proceeding)

Dad again moved to modify custody Trial court denied both parties’ motions

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Holding on appeal: move not allowed (trial court affirmed) No presumptive right to relocate (rejected Mom’s “happy

mom = happy child” argument or that Mom should be able to move unless Dad could show harm to child)

Different burdens if case is to modify custody vs. modify parenting plan

No “clearly articulable reasons” to reverse trial court determinations (30 pages of findings of fact and conclusions of law)

Court has no authority to force nonmoving parent to move

Constitutional Arguments State must show a compelling justification to infringe on a

party’s constitutional right to interstate travel Other states:

Parent’s right to interstate travel prevails unless evidence of harm to child by move (Wyoming)

State’s interest in best interests of child trumps parent’s right to travel (Alabama, Idaho, Kansas, Minnesota, Montana)

Balance child’s needs against parent’s right to travel (Colorado, Indiana)

Restrictions on constitutional right to travel out of the country are upheld unless wholly irrational

A parent’s right to control child’s upbringing under Troxel not applicable here because dispute is between both parents (not a parent and nonparent)

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Separated parents of 7-year-old and 3-year-old Dad had alternating weekends with one overnight Both parties were ER physicians, but Mom hadn’t worked in field

for four years and was unable to find work in Portland Parties’ marital settlement agreement allowed Mom to move out

of state Proposed move from Portland to Bay Area for Mom’s

employment, extended family, and large East Indian community Custody evaluator recommended sole custody to Mom but that it

was not in the children’s best interests to relocate Trial court ruled it could not interfere with MSA but also found

relocation in the children’s best interests

Holding: move allowed (trial court affirmed) MSA issue not addressed because the parties agreed the

ultimate issue was whether the move was in the children’s best interests

Mom unable to find work in Portland but able to find work in Bay Area

Strong emotional ties between Mom’s extended family and East Indian community

Distance mitigated by fact that Dad would have same parenting plan of alternating weekends and flights were only 1½ hours

Mom had good post-move parenting plan to provide housing for Dad to visit children in Bay Area and to assume costs to fly children to see Dad in Portland

6C–7


PrACTICE TIP

The factors set out in ORS 107.137(1) are undoubtedly relevant to the issues that arise in relocation cases. However, again because of the unique nature of relocation cases, it may be that adopting standards particular to these cases would be helpful predictors for parties and guidance for the trial courts. For example, one commentator has sug-gested that the following would be an appropriate list of factors:

(1) The prospective advantages of the move in improving the moving parent’s and the child’s quality of life;

(2) The integrity of the moving parent’s motive of relocation, considering whether it is to defeat or deter visitation by the nonmoving parent;

(3) The integrity of the nonmoving parent’s motives for opposing the move;

(4) Whether there is a realistic opportunity for visitation (parenting time) which can provide an adequate basis for preserving and fostering the nonmoving parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternative visitation;

(5) What was contemplated by the parties and the court at the time the original orders were entered;

(6) The impact the relocation will have on the minor child;

(7) The history of the relocating parent and the child’s relationship;

(8) The input from the attorney of the minor child;

(9) The family relations report;

(10) The cost of visitation, considering the distance between the two cities, the cost of travel, and the ease of travel;

(11) What is in the best interests of the child? In determining qualify of life, the courts look at

(a) Emotional, physical and developmental needs of the children;

(b) The children’s opinion or preferences as to where to live;

(c) The extent to which the moving parent’s income or employment will be enhanced;

(d) The degree to which housing or living conditions would be improved;

(e) The existence of educational advantages;

(f) The quality of the relationship between the children and each parent;

(g) The strength of the children’s ties to the present community and extended fam-ily there; and

(h) The likelihood that allowing or denying the move would antagonize hostilities between the two parties.

Hamilton-Waller, 202 Or App 498, 511 n11, 123 P3d 310 (2005).

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Chapter 6D

CHILD CusTODy HyPOTHETICALs—PrEsEnTATIOn sLIDEs

kiMberly a. QuaCh

Lechman-Su & Quach PCPortland, Oregon

the honorable JaCk l. lanDau

Oregon Supreme CourtSalem, Oregon

Mark kraMer

Kramer & AssociatesPortland, Oregon

patriCia l. MCguire

Bobzien McGuire LLPPortland, Oregon

6D–ii

Chapter 6D—Child Custody Hypotheticals—Presentation slides

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T h e H o n o r a b l e J a c k L . L a u d a uM a r k K r a m e r

P a t r i c i a L . M c G u i r eK i m b e r l y A . Q u a c h

F E B R U A R Y 2 4 , 2 0 1 2O S B C o n t i n u i n g L e g a l E d u c a t i o n

Understanding Oregon Child Custody Laws: 8 Cases to Bring with You on a Desert Island

Hypotheticals

Hypothetical #1:Best Interests Analysis

Unmarried parents of 5 year old daughter both seek custody in an original custody action. Father was uninvolved until the child was 4, claiming that Mother told him that the child was his. Mother claims Father told her to abort the fetus during the pregnancy, and then abandoned her. She did not seek child support until she filed her case.

When the girl turned 4, Father learned that the child physically resembled him, and then sought time with the girl, which Mother supported. From that time until an action was filed, Father began sharing alternating weekends with the girl. However, when he first began sharing time with his daughter, he took her to visit his parents in Arizona without Mother’s knowledge or consent. The girl was very upset, and Mother engaged a counselor for the child once she was returned to Mother’s custody after she successfully obtained a writ of assistance.

The court-appointed evaluator found that both parents were more than capable and interested in the child, and that the case was “close.” He recommended that Father have custody largely because Mother did not tell Father about the child voluntarily.

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Hypothetical #2:Best Interests Analysis

Father of 16 year old twin boys bring an action to modify custody. The parties originally stipulated that Mother would have custody when the boys were 5, and there have been no intervening actions filed. The twins play tennis and are nationally ranked doubles players. Mother has dedicated herself to their national travel and daily tennis academy and off-court training commitments. In the last year, however, the boys began drinking following their many wins. One of them was charged with public intoxication and public lewdness following a tournament win in Florida. They earned a #2 national ranking following the win. In the last semester, their grades have dropped from mostly Bs and As to mostly Cs and Bs. Mother, without Father’s input or knowledge, checked both boys into an out-patient alcohol treatment program. They have been completely compliant except for the weekends that they travel for tournaments, which Mother has taken them to knowing that they are not compliant with the program. Father brought a custody modification action, believing the boys should begin a 30 day in-patient treatment program.

Hypothetical #1:Third Party Custody

Grandmother has had primary physical custody of Katie, a 4 year old, for most of Katie’s life. Biological father is not in the picture but his paternity has been established. Biological mother is a drug addict who floats in and out of treatment, homes, jobs and relationships. She has never provided primary care for Katie but occasionally visits and occasionally stays in Grandmother’s home. Sometimes, when home she assists in care; sometimes not. Grandmother has no legal custodial status and no delegation of parental rights. She is afraid that if she raises the issue of custody with biological mother that biological mother will abscond with Katie and put Katie at risk.

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Maternal grandparents have had custody of Peter from age 9, since biological mother died four years ago. After biological mother died, grandparents obtained a custody judgment under ORS 109.119. Biological father was served, didn’t appear, and was defaulted. Biological father has never been the custodial parent and was only marginally involved with Peter when biological mother was alive. However, since biological mother’s death he has become increasingly involved, and has regular alternating weekend parenting time. Biological father has a drug problem in remission, is working at a minimum wage job and has a stable albeit spartan residence. Biological father lives with a girlfriend who has a three year old daughter. Grandparents don’t approve of biological father’s lifestyle and are resentful when biological father doesn’t follow Peter’s regular routines (diet, bedtime, T.V. and movie watching, etc.) but grandparents can point to no incidents in which Peter has been put at risk by biological father. Biological father has filed a motion to seek custody.


Grandparents have been involved with Jacob since he was born providing emotional support, financial support and childcare. Biological parents have anger control, domestic violence and some drug issues. When Jacob was age six months, DHS intervened and obtained custody, placing Jacob with grandparents. Foster placement lasted for approximately 15 months and DHS implemented a return to a parent plan and during the transition period (after the 15 months), for about 3 months grandparents had alternating weekend visitation. When the juvenile court case was closed and wardship was terminated grandparents expected that regular visitation would continue. There were a couple of brief visits after wardship terminated and then biological parents cut grandparents off complaining that grandparents were too opinionated, did not follow their rules and that they were tired of grandparents’ intervention generally. They especially did not appreciate grandparents having Jacob’s haircut without their consent. Before wardship was terminated, grandparents became caregiver interveners in the juvenile court case and filed pro se a petition for visitation under ORS 109.119 which was consolidated with the juvenile court case. Grandparents cannot afford counsel and do not have the funds for a forensic evaluation.

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Hypothetical #1:Relocation

The parties met while attending medical school in their hometown in NYC. They both pursue residency and medical careers in Portland, where Dad becomes a surgeon and Mom a pediatrician. Mom works 9-5 with few on-call hours. Dad’s surgical practice makes his hours unpredictable.

The parties divorce after 8 years of marriage. Mom is awarded sole custody of their 10-year-old, Aiden, and Dad has the child on alternating weeks from Thursday until Tuesday morning. In order to exercise his parenting time without work interruptions, Dad makes substantial changes to his work schedule so that he only performs surgeries on Tuesday through Thursdays; on Fridays and Mondays he tries to work only a half day if possible. On weekends, Dad coaches soccer and Mom attends every practice and game. Aiden has close relationships with his extended family in NYC (both sets of grandparents as well as aunts, uncles, and cousins).

Two years after the divorce, Mom is offered a job in NYC that will double her income but lower her work hours; this work schedule will allow her to look after her aging parents. Aiden (now age 12) has the opportunity to enroll in a school for the mathematically gifted. Mom seeks to relocate to NYC. Dad files to enforce the current parenting plan and does not file to modify custody.


Mom and Dad were married 15 years and have two children (ages 14 and 9). In the divorce, Mom was awarded sole custody, and Dad has the children on alternating weekends. Mom was a former college gymnast. Their youngest child, Becky, has been heavily involved in gymnastics since she was a very small child and her coaches believe she has the potential to become an Olympic champion with better coaching, but there are no coaches in Oregon of that caliber. Their other daughter, Susan, is not involved in sports and has been angry at Mom because of Mom’s intense focus on Becky’s gymnastics career. Dad is supportive of Becky’s gymnastics but doesn’t participate in taking her to practices or go to all of her events, so he sometimes doesn’t exercise his parenting time each alternating weekend. His parents, however, attend all of Becky’s meets and have also provided child care for Susan when Mom takes Becky to out-of-town gymnastic meets.

Mom wants to relocate to Florida so that Becky can train with the best gymnastics coach in the United States, in the hope that she may make the team for the 2016 Olympics. Susan has been spending more time with Dad because she’s angry with Mom, and since she heard of the possible move to Florida, she wants to live with Dad. In anticipation of relocation, Mom quit her job, rented an apartment in Florida, and has plans to homeschool Becky while she trains intensively. Dad files to enforce the parenting plan.

Does the analysis change if Mom decides that she would only relocate with Becky, (given Susan’s issues with Mom and the fact that she has just begun high school)?

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Mom and Dad divorced when their children (David and Jeremy, now 12 and 11) were toddlers. They delayed having children so each could pursue their careers (Dad is a dentist and Mom is an engineer). Mom was awarded sole custody, and Dad has the children 40% of the time. Mom never remarried after the divorce, and she has spent much of her time developing her career. While she has been successful, the firm at which she works is closing, and Mom will have difficulty finding similar work for at least a year.

Dad has remarried; he and his second wife have two boys who are close in age to David and Jeremy. All four children are close, and they spend a month each summer with Dad and their paternal grandparents in Cannon Beach. Dad is heavily involved in many of David and Jeremy’s extracurricular activities (Boy Scouts, Model United Nations, cross-country, and ice skating). Mom is not as involved in the boys’ extracurricular activities due to her work hours.

Mom has been offered a position as a director of operations at an engineering firm in Victoria, British Columbia, and she has a new partner there with two children, who also are close in age to David and Jeremy. They plan to move into her partner’s home while their relationship is developing and Mom and the boys get used to living in Canada. Mom seeks permission to move to Canada, and Dad files to modify custody.

Thank You

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Isn’t There a Case About That? 25 Critical Family Law Cases to … · 2015-12-25 · Kimberly A....

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