State ex rel. Department of Human Resources v. Lewelling

964 P.2d 1104, 156 Or. App. 7, 1998 Ore. App. LEXIS 1518
Court of Appeals of Oregon·Decided September 9, 1998·No. C-910014 FI; CA A97976·Published·Cited by 1 cases

Opinion

EDMONDS, P. J.

Defendant appeals from a money judgment arising out of a filiation proceeding. ORS 109.124 et seq. The judgment followed a jury verdict establishing paternity. The judgment requires defendant to reimburse the state for costs of blood tests performed to determine paternity in the amount of $375 and for support of his child paid by the state totaling $1,564. It also includes a judgment for $7,643.25 for attorney fees and costs incurred by the state that includes expert witness fees in the amount of $2,357.37. We affirm the judgment for the cost of the blood tests. We vacate the judgment for the past support obligation and remand. As to the judgment for attorney fees and costs, we reverse the portion of the judgment that awards the expert witness fees.

Defendant makes four assignments of error on appeal. He first assigns error to the judgment for the past support obligation. Defendant argues that there are no pleadings alleging the amount due, that no evidence was offered of the amount due and that the state is barred from collecting support paid by the state before October 1995. The state concedes that there is no record to support a basis for the support judgment. While the trial court record includes a 1991 Notice and Finding of Financial Responsibility that indicates that defendant should pay $168 per month and affidavits from the child’s mother as to what her income and expenses were in 1992, there is no evidence of how the amount of $1,564 was calculated. As a result, we vacate the judgment for $1,564 and remand on that ground.

Despite the concession by the state, defendant argues that remand is inappropriate because the support that the state seeks to recover was furnished before October 1995. Defendant relies on ORS 416.422, which provides:

“(1) Past support may not be ordered for any period of time prior to the later of:
“(a) October 1,1995; or
“(b) The date of the application for service from, or, in the case of a mandatory referral based on the receipt of public assistance, the date of the referral to, the child support [10]*10program administered under Title IV-D of the Social Security Act.
“(2) The past support provisions of the amendments to ORS 416.00, 416.415, 416.435 and 416.450 by sections 8, 9, 10, and 11, chapter 514, Oregon Laws 1995, apply only to actions initiated on or after October 1,1995.”

The state counters:

“The second section of the new law says it applies only to actions initiated on or after October 1, 1995, and because this proceeding seeks ‘past support’ (formerly, ‘state debt’) and was initiated long before the new law’s effective date, the limitation in the statute does not apply.”

Whether ORS 416.422 precludes the state from collecting support furnished before October 1995 is a question of statutory interpretation. The first level of statutory interpretation requires us to look at the text and context of the statutory provision itself for evidence of the legislature’s intent. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). The context of a statute includes other provisions of the same statute, other related statutes and prior enacted versions of the same statute. Id. at 611; Kreiger v. Just, 319 Or 328, 336, 876 P2d 754 (1994).

The district attorney for Washington County commenced this action in January 1991 as an administrative support case under ORS 416.400 et seq. The version of ORS 416.410 in effect in 1991 provided, in part:

“(1) [Any] payment of public assistance by the department made to or for the benefit of any dependent child, including any payment made for the benefit of the caretaker of the child, creates an obligation, to be called ‘state debí,’whichis due and owing to the department by the parents of the dependent child in an amount equal to the amount of public assistance so paid; provided, however, that:
“(a) Where there has been an Oregon court order directed to a parent, the state debt of that parent shall be an amount equal to the amount of public assistance paid up to the full amount of arrearages under the order, and shall thereafter be limited to and accrue at a rate equal to the payments ordered by the court.
[11]*11“(b) Where there has been no court order, the administrator may at any time set or reset the amount of state debt accrued and accruing.
“(2) If public assistance is or has been paid, the department shall be subrogated to the right of the dependent child or person having legal or physical custody of such child to prosecute or maintain any support action or execute any administrative remedy existing under the laws of the State of Oregon to obtain reimbursement of moneys thus expended. If a court order enters judgment for or requires payment of an amount of support to be paid by a parent, the department shall be subrogated to the debt created by such order, to the extent that public assistance has been paid, and such court order shall be deemed to be in favor of the department.” (Emphasis supplied.)

Thus, in 1991, a support proceeding initiated through the administrative process allowed recovery by the state of monies it had paid for support but did not otherwise authorize the recovery of support.

After defendant denied paternity in response to the administrative action and requested a hearing in the circuit court, the district attorney sought and received leave to claim support from the child’s birth date in 1989.1 The matter went to trial in May 1992, and, as a result of a hung jury, a mistrial was declared. In July 1995, the matter was retried, and the jury returned a verdict establishing defendant’s paternity. Defendant appealed to this court, and we affirmed the paternity judgment but remanded for a hearing on attorney fees and costs. State ex rel DHR v. Lewelling, 144 Or App 323, 925 P2d 597 (1996). At the hearing on attorney fees and costs before the trial court in April 1997, the state sought a judgment for support. By that time, the 1995 amendments to ORS 416.400 et seq. were in effect.

The amendments to ORS 416.400 et seq. by Oregon Laws 1995, chapter 514, replaced the phrase “state debt” with the phrase “past support” and expanded the statute to [12]*12provide for recovery of support by private individuals. ORS 416.400(10) as amended provides:

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State ex rel. Department of Human Resources v. Lewelling, 964 P.2d 1104, 156 Or. App. 7, 1998 Ore. App. LEXIS 1518 (Or. Ct. App. 1998).

964 P.2d 1104 (State ex rel. Department of Human Resources v. Lewelling) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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