McClain v. McClain

958 P.2d 909, 155 Or. App. 258, 1998 Ore. App. LEXIS 1239

Opinion

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 P2d 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 Oregon Laws 1997, chapter 746, section 23, allows him to challenge the judgment. 1

Affirmed.

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.