Carlin v. Carlin

660 P.2d 204 (1983) 62 Or.App. 350

Dolores C. CARLIN, Plaintiff,
v.
Philip A. CARLIN, Jr., Defendant.
Dolores C. CARLIN, aka Dolores C. Wellman, and Caryn C. Carlin, Appellants,
v.
Philip A. CARLIN, Jr., Respondent.

No. 319 638; CA A24712.

Court of Appeals of Oregon.

Argued and Submitted October 13, 1982. Decided March 23, 1983.

David N. Hobson, Portland, argued the cause and filed the brief for appellants.

Marla J. McGeorge, Purcella & Laury, Portland, argued the cause and filed the brief for respondent.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN,^[*] JJ.

VAN HOOMISSEN, Judge.

Mother and the parties' child, Caryn, appeal from a trial court order allowing father's motion to dismiss their motion to modify the parties' dissolution decree to increase child support. The issue is whether the trial court had personal jurisdiction over father, a resident of Arizona. The trial court concluded that it did not. We disagree and therefore reverse and remand.

In 1966, mother filed a suit for divorce. Personal service was obtained on father in Oregon. The dissolution decree awarded custody of Caryn to mother and ordered father to pay child support until Caryn reached majority.^[1] In 1981, mother and Caryn moved to modify the decree to increase child support. ORS 107.135.^[2] An order to show cause was issued requiring father to appear in Oregon to show cause why support should not be increased.

Father was served by substituted service in Arizona. The attorney for Mother and Caryn also mailed father a certified letter, advising him of the substituted service and enclosing a copy of the motion, order and affidavits. Father concedes that he received actual notice of the modification proceeding and that service and notice are not in issue here. Father also concedes that the trial court has subject matter jurisdiction. He contests only the court's personal jurisdiction over him.

While we have not addressed this specific issue before, in Eusterman and Eusterman, 41 Or. App. 717, 731-32, 598 P.2d 1274 (1979), we said:

"Under ORS 107.135, the court has continuing jurisdiction over the subject matter of future support payments and retains power to modify that portion of the decree. The fact that such modification can be made on motion filed in the original suit indicates that the court also retains jurisdiction of the parties. The fact that the court has jurisdiction of the subject matter and the parties does not, however, authorize it to act without further notice. The question is not whether the court had jurisdiction but whether the father had notice."

The dissolution court has continuing personal jurisdiction over father so long as he owes a duty of support to Caryn. This conclusion is supported by the great weight of authority.^[3] Father has cited no authority to the contrary, nor has our research revealed any.^[4] Therefore, it was error for the trial court to allow father's motion.

Father contends that because he had been a resident of Arizona for several years before this modification proceeding was commenced, the circuit court did not acquire personal jurisdiction over him. He relies on ORCP 4 K(2), which provides:

"A court of this state having jurisdiction of the subject matter has jurisdiction over a party served in an action pursuant to Rule 7 under any of the following circumstances:

"In any action to enforce personal obligations arising under ORS Chapter 106 or 107, if the parties to a marriage have concurrently maintained the same or separate residences or domiciles within this state for a period of six months, notwithstanding departure from this state and acquisition of a residence or domicile in another state or country before filing of such action; but if an action to enforce personal obligations arising under ORS Chapter 106 or 107 is not commenced within one year following the date upon which the party who left the state acquired a residence or domicile in another state or country, no jurisdiction is conferred by this subsection in any such action." (Emphasis supplied.)

Father's reliance on ORCP 4 K(2) is misplaced. Once having obtained personal jurisdiction over father in 1966, the circuit court never lost that jurisdiction for child support purposes under ORS 107.135.

Reversed and remanded. Costs to appellants.

NOTES

[*] Newman, J., vice Thornton, J., retired.

[1] Caryn's affidavit indicates that she is entitled to support under the provisions of ORS 107.108 as an unmarried, fulltime student under 21.

[2] ORS 107.135(1)(a) provides:

"The court has the power at any time after a decree of * * * dissolution of marriage * * is granted, upon the motion of either party and after service of notice on the other party in the manner provided by law for service of a summons, to:

"Set aside, alter or modify so much of the decree as may provide for the * * * support * * * of the minor children * * *."

[3] Garlitz v. Rozar, 18 Ariz. App. 94, 500 P.2d 354 (1972); Rice v. Rice, 222 Ark. 639, 262 S.W.2d 270 (1953); Sauls v. Sauls, 40 Colo. App. 275, 577 P.2d 771 (1977); McClellan v. McClellan, 125 Ill. App. 2d 477, 261 N.E.2d 216 (1970); DeFatta v. DeFatta, 352 So. 2d 287 (La. App. 1977); Glading v. Furman, 282 Md. 200, 383 A.2d 398 (1978); Atwood v. Atwood, 253 Minn. 185, 91 N.W.2d 728 (1958); Campbell v. Campbell, 357 So. 2d 129 (Miss. 1978); Houde v. Beckmeyer, 116 N.H. 719, 366 A.2d 504 (1976); Van Divort v. Van Divort, 165 Ohio St. 141, 134 N.E.2d 715, 59 Ohio Op. 207 (1956); State ex rel Ravitz v. Fox, 273 S.E.2d 370 (W. Va. 1980); see also 24 Am.Jur.2d, Divorce and Separation § 852.

[4] Our decision is based on the trial court's continuing jurisdiction. For a discussion of interstate enforcement of support obligations through long-arm statutes and URESA, see 18 Journal of Family Law 537 (1979-80).