McClain v. McClain

958 P.2d 909 (1998) 155 Or. App. 258

Daniel A. McCLAIN, Appellant,
v.
Susan M. McCLAIN, nka Susan M. Phillips, Respondent, and
State of Oregon, Department of Human Resources, Intervenor-Respondent.

96-2190; CA A98294.

Court of Appeals of Oregon.

Argued and Submitted May 11, 1998. Decided July 15, 1998.

James D. Huffman argued the cause for appellant. With him on the brief were Mary T. O'Hanlon and Olsen & Huffman.

John F. Hunnicutt argued the cause and filed the brief for respondent.

James R. George, Assistant Attorney General, argued the cause for intervenor respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, P.J., and DEITS, C.J., and HASELTON, J.

PER CURIAM.

Father sought a judgment declaring that he is not the father of respondent mother's child and setting aside a 1992 judgment of dissolution to the extent that it decides paternity. Father alleged that the judgment was procured by fraud because mother lied when she told him that he was the father of the child. The trial court granted mother's motion to dismiss, holding that father had failed to plead any facts alleging extrinsic fraud. The trial court did not err. For father to show that he was prevented from impeaching the judgment by mother's fraud, he must plead and prove fraud extrinsic to the proceedings; an allegation of perjury in the course of the proceedings is insufficient. Watson v. State of Oregon, 71 Or.App. 734, 737, 694 P.2d 560 (1985). Father did not make that showing.

We do not address father's argument, which was not briefed and was made for the first time at oral argument, that 1997 Oregon Laws, chapter 746, section 23, allows him to challenge the judgment.^[1]

Affirmed.

NOTES

[1] The effective date of that section, which is not codified but is compiled following ORS 109.070, was August 4, 1997, after father filed this proceeding, but before he filed his brief in this court.