Norton v. MacDonald

93 P.3d 804, 194 Or. App. 174, 2004 Ore. App. LEXIS 806
CourtCourt of Appeals of Oregon
DecidedJuly 8, 2004
Docket00-30380; A116721
StatusPublished

This text of 93 P.3d 804 (Norton v. MacDonald) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norton v. MacDonald, 93 P.3d 804, 194 Or. App. 174, 2004 Ore. App. LEXIS 806 (Or. Ct. App. 2004).

Opinion

ORTEGA, J.

In her appeal of a judgment of paternity, mother challenges the trial court’s determinations that (a) she was not entitled to seek past child support in a filiation proceeding because she initiated her claims after child had turned 18, and (b) child was not otherwise entitled to support under ORS 107.108. Mother also challenges the award of attorney fees to father. We conclude that mother was entitled to initiate a filiation proceeding but we affirm the trial court’s ruling regarding the award of past child support because mother’s claim is barred by laches. We also conclude that the trial court’s interpretation of ORS 107.108 was erroneous and that child’s cumulative grade point average at the time of trial did not bar her from entitlement to support as a “child attending school.” Accordingly, we reverse in part and remand.

We review the facts de novo. ORS 19.415(3) (2001);1 see State ex rel Jones v. Workman, 34 Or App 777, 779, 579 P2d 1302 (1978). Mother initiated this filiation proceeding in July 2000 when child was 18 years old. Mother had informed father early in her pregnancy with child that he was to become a father, but he took no action to establish his paternity or participate in the birth process. When child was about 10 months old, father took child and mother to meet his parents, who accepted child as their granddaughter. Over the years, child and mother have visited father’s family regularly, and father occasionally has been present. However, [177]*177before this proceeding, mother never sought to establish legal paternity or collect child support from father.

Child had a history of difficulty in school. She eventually dropped out of high school in her senior year (shortly after turning 18) and attempted to obtain her high school diploma at a community college beginning in the spring of 2000. She did not perform well, however, receiving primarily failing or incomplete grades over the course of three terms. After taking a term off, she enrolled again in the spring of 2001 and obtained a B average in two classes.

In the meantime, mother filed this action in July 2000 seeking to establish paternity, to obtain an award of past child support, and to obtain an award of future support for child as a “child attending school” as defined in ORS 107.108.2 Father acknowledged paternity at trial but opposed an award of past child support, contending that, because child was not a minor at the time mother filed this action, mother was not a “mother of a child born out of wedlock” who may initiate filiation proceedings under ORS 109.125(l)(a) (1999). Alternatively, father contended that mother’s claim for past child support was barred by laches. Father also contended that child was not entitled to support as a “child attending school” within the meaning of ORS 107.108 because she had not “maintain[ed] the equivalent of a C average or better” when she attended school as required by ORS 107.108(5)(a).3 The trial court agreed with father that mother [178]*178was not entitled to seek past child support and that child was not entitled to support as a child attending school.

We first address mother’s contention that the trial court erred in concluding that she could not initiate a filiation proceeding to seek past child support under ORS 109.124 to 109.237. ORS 109.125(1) (1999), which governs these proceedings,4 provides, in pertinent part:

“Any of the following may initiate proceedings under this section:
“(a) A mother of a child born out of wedlock * * *;
"*****
“(f) The minor child by a guardian ad litem.”

The statutory definition of “child born out of wedlock” includes a “child born to an unmarried woman.” ORS 109.124(2). The initial question, then, is whether mother was entitled to initiate this filiation proceeding as a “mother of a child born out of wedlock” within the meaning of ORS 109.125(l)(a). Father contends, and the trial court held, that “child” in this context means a minor child and that, because child was no longer a minor when mother initiated these proceedings, mother could not initiate a filiation proceeding to seek past due child support. We disagree.

We interpret ORS 109.125(l)(a) using the familiar template of PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). Under PGE, our “task is to discern the intent of the legislature.” 317 Or at 310. At our first level of analysis, we begin with the statutory text and context, which includes analyzing the text of other relevant statutory provisions. If legislative intent is clear from the statutory text and context, we need not inquire further.

We note first that the phrase “mother of a child born out of wedlock” in ORS 109.125(l)(a) focuses on the relationship between mother and child rather than on the age of the child. The statute does not specify that the child must be a [179]*179•minor. Moreover, the statute itself demonstrates that the legislature knows how to restrict the availability of an action based on the child’s age when it so intends. For example, under ORS 109.125(l)(f), filiation proceedings may be initiated by “the minor child by a guardian ad litem.” (Emphasis added.) Although the legislature specified that initiation of filiation proceedings by a guardian ad litem is available only to a minor child in paragraph (f), it did not include a similar limitation to initiation of filiation proceedings by the child’s mother in paragraph (a). See Waddill v. Anchor Hocking, Inc., 330 Or 376, 382, 8 P3d 200 (2000) (recognizing that the legislature’s use of a term in one section of a statute but not in another section indicates a purposeful omission). In related statutes, the term “child” likewise has been found to connote a relationship, not an age. See, e.g., Haxton and Haxton,

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Related

In Re Marriage of Kunze
92 P.3d 100 (Oregon Supreme Court, 2004)
Waddill v. Anchor Hocking, Inc.
8 P.3d 200 (Oregon Supreme Court, 2000)
Matter of Marriage of Haxton and Haxton
705 P.2d 721 (Oregon Supreme Court, 1985)
Rise v. Steckel
652 P.2d 364 (Court of Appeals of Oregon, 1982)
Mattson v. Commercial Credit Business Loans, Inc.
723 P.2d 996 (Oregon Supreme Court, 1986)
STATE EX. REL. JONES v. Workman
579 P.2d 1302 (Court of Appeals of Oregon, 1978)
Hilterbrand v. Carter
27 P.3d 1086 (Court of Appeals of Oregon, 2001)
Portland General Electric Co. v. Bureau of Labor & Industries
859 P.2d 1143 (Oregon Supreme Court, 1993)
McIver v. Norman
213 P.2d 144 (Oregon Supreme Court, 1948)
State ex rel. Thomas v. Thomas
689 P.2d 348 (Court of Appeals of Oregon, 1984)

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Bluebook (online)
93 P.3d 804, 194 Or. App. 174, 2004 Ore. App. LEXIS 806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norton-v-macdonald-orctapp-2004.