DocketNumber: 103054; A149343
Citation Numbers: 259 Or. App. 490, 314 P.3d 711
Judges: Hadlock, Ortega, Sercombe
Filed Date: 11/20/2013
Status: Precedential
Modified Date: 9/9/2022
Father appeals a judgment establishing custody, parenting time, and child support for the parties’ minor child. On appeal, father asserts that the trial court erred in ordering that child support should commence from the date that the parties separated because the petition was filed pursuant to ORS 109.103 and the court, therefore, did not have authority to order retroactive child support. Mother responds that, because she had filed a motion in the action in which she cited ORS 109.155(4), the trial court could order retroactive support pursuant to that statutory provision. We agree with father that the court committed legal error and, therefore, reverse and remand with respect to the child support award.
The pertinent facts are few and undisputed. The parties are the never-married parents of the child, who was born in November 2008. Mother and father lived together at the time the child was born; they separated in approximately October 2009. Paternity of the child was established by the filing of a voluntary acknowledgement of paternity with the State Registrar of the Center for Health Statistics. After mother and father separated, in February 2010, mother filed a petition to determine custody, child support, and parenting time pursuant to ORS 109.103. She filed an amended petition in May 2010.
In August 2010, while the case was pending, mother filed a motion for temporary support, custody, and parenting time. In part, she requested an order “ [r] equiring [father] to pay child support to [mother] pursuant to the Oregon Child Support Guidelines.” She further asserted that “pursuant to ORS 109.155 [,] child support [should] commence” as of the date of the child’s birth. Mother’s request for temporary support was not heard separately from the court’s consideration of the petition to determine child support, custody, and parenting time.
“The Court finds that child support commences from the time that the parties separated in October 2009. The Court finds that the arrearages commence on November 1, 2009. There are 19 months from November 2009 through May 31, 2011. 19 months times $787 per month child support is $14,953. The Court finds that Respondent has paid $6,444 in child support during the pendency through May 24, 2011. The Court finds that the child support arrears owed to Petitioner *** are in the amount of $8,509. The Court finds the arrears are to be paid at a rate of 20% of the $787 monthly support order * * * in addition to the monthly child support amount [.]”
It is that provision of the judgment that is at issue on appeal.
As noted, father contends that the “trial court erred in ordering that child support should commence from the date the parties separated.” In particular, he asserts that the court could not order child support retroactive to the date of separation under the statutes applicable to this case and that, although mother argued to the trial court that ORS 109.155(4) could be used to award retroactive child support, “this was not a filiation proceeding brought under ORS 109.124 and following” and “ORS 109.155 does not apply.” Mother responds that the court could properly order retroactive support pursuant to ORS 109.155.
ORS 109.103(1)
“If a child is born to an unmarried woman and paternity has been established under ORS 109.070, * * * either parent may initiate a civil proceeding to determine the custody or support of, or parenting time with, the child. The proceeding shall be brought in the circuit court of the county in which the child resides or is found or in the circuit court of the county in which either parent resides. The parents have the same rights and responsibilities regarding custody and support of, and parenting time with, their child that married parents would have, and the provisions of ORS 107.093 to 107.449 that relate to custody, support and parenting time, and the provisions of ORS 107.755 to 107.795 that relate to mediation procedures, apply to the proceeding.”3
In contrast to proceedings under ORS 109.103, proceedings may be brought under the filiation statutes in order to establish paternity and, once paternity is established, to determine child support and custody. A proceeding under those provisions “shall be initiated by the filing of a duly verified petition” containing certain particular information. ORS 109.125(2). The court, in such proceedings,
“in a private hearing, shall first determine the issue of paternity. If the respondent admits the paternity, the admission shall be reduced to writing, verified by the respondent and filed with the court. If the paternity is denied, corroborating evidence, in addition to the testimony of the parent or expectant parent, shall be required.”
ORS 109.155(1). After paternity is established, the “court may order either parent to pay such sum as the court deems appropriate for the past and future support and maintenance of the child during the child’s minority and while the child is attending school.” ORS 109.155(4). In addition, the court may order “reasonable and necessary expenses incurred or to be incurred in connection with prenatal care, [and] expenses attendant with the birth and postnatal care.” Id. Thus, filiation proceedings provide for more extensive retroactive support than is contemplated in the dissolution statutes (and, therefore, in proceedings under ORS 109.103).
In this case, unlike Olson, it is undisputed that the petition was filed solely pursuant to ORS 109.103.
Child support award reversed and remanded; otherwise affirmed.
Although a hearing on the motion for temporary support was scheduled for November 2010, that hearing was later cancelled.
The legislature amended ORS 109.103 in 2013. See Or Laws 2013, ch 126, § 2; Or Laws 2013, ch 127, § 2. Those amendments are not pertinent to the issues in this case. Throughout this opinion, all references are to the 2011 versions of the relevant statutes.
Pursuant to ORS 109.070(1),
“[t]he paternity of a person may be established as follows:
“(a) A man is rebuttably presumed to be the father of a child born to a woman if he and the woman were married to each other at the time of the child’s birth, without a judgment of separation, regardless of whether the marriage is void.
“(b) A man is rebuttably presumed to be the father of a child born to a woman if he and the woman were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment or dissolution or after entry of a judgment of separation.
“(c) By the marriage of the parents of a child after the birth of the child, and the parents filing with the State Registrar of the Center for Health Statistics the voluntary acknowledgement of paternity form as provided for by ORS 432.287.
“(d) By filiation proceedings.
“(e) By filing with the State Registrar of the Center of Health Statistics the voluntary acknowledgement of paternity form as provided for by ORS 432.287. Except as provided in subsections (4) to (7) of this section, this filing establishes paternity for all purposes.
“(f) By having established paternity through a voluntary acknowledgement of paternity process in another state.
“(g) By paternity being established or declared by other provision of law.”
The petition, on its face, states that it is a petition for custody, parenting time, and child support under ORS 109.103.