LAW MARKS: Mark Johnson's occasional, and occasionally irreverent, review of recent developments in family law and appellate procedure. For July 2002, topics include the presumption of equal contribution to marital assets, attorney fees, and third-party custody rights.

Debate on Oregon's presumption of equal contribution rages on. Most recently, the Court of Appeals decided Kunze and Kunze, holding that, once the presumption was rebutted, the court could distribute the marital assets as was just and proper in all the circumstances. The court cited the Supreme Court's decision in Massee and Massee, but ignored the Supreme Court's statement in the same case that, in the absence of the presumption, the court should divide the property according to each spouse's contribution. The Court of Appeals also omitted any reference to its own Terhaar and Polance, in which it adopted the more restrictive Massee test. Interestingly, the Supreme Court allowed review in Terhaar, but recently dismissed review following oral argument.

The long-running attorney fee case of McCarthy v. Oregon Freeze Dry stumbled to a quiet conclusion when the Supreme Court reversed the Court of Appeals' award of fees on the third go-around. Along the way, we all learned a great deal about the relatively new ORS 20.075 and about awards of attorney fees in general. Domestic relations practitioners should note that the Court of Appeals has held in Baker and Baker that ORS 20.075 does apply to family law cases. Everyone should note that the form of attorney fee statement provided in the UTCR has not been amended after the adoption of ORS 20.075 and does not strictly comply with McCarthy - beware! Also, under the amended ORAP, you must request special findings in your petition for attorney fees in order to preserve your client's right to them under the statute and McCarthy.

Family Law Quarterly's annual review of family law in the 50 states includes coverage of third-party custody rights in light of the US Supreme Court's Troxel v. Granville decision. Also included are a table and digests of recent cases from all the states. Oregon's ORS 109.119 has already been amended to comply with Troxel.

Mark Johnson is an appeals attorney practicing in Portland, Oregon. He also provides attorney coaching, consulting, and collaboration on a wide range of family law issues. Mark is available to act as a reference judge in Oregon family law cases.

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