Legal Updates

LAW MARKS: Mark Johnson's occasional--and occasionally irreverent--review of recent developments in family law and civil procedure. For November 2002, topics include spousal support modification and step-parent custody.

In Weber and Weber, decided on October 9, the Court of Appeals held that a spousal support modification could be had in some circumstances where the only change was an improvement in the payor's financial condition. The husband's income, the court found, was artificially depressed at the time of the dissolution and had since returned to its previous level.

The court adhered to the usual rule prohibiting modification for the sole purpose of maintaining the supported spouse in the manner that would exist had there been no divorce. Interestingly, in support of the general rule, the court cited the Supreme Court's 1948 decision in Strickland v. Strickland, without noting that the holding of that case was exactly to the contrary. The general prohibition did not appear until Feves v. Feves in 1953, a case that the Weber court discussed at some length.

On the same day, in the very sad case of Wilson and Wilson, the court reversed an award of custody of one child to her stepfather and then, to keep the children together, also reversed the husband's award of custody of the parties' joint child. The stepdaughter had been raised from infancy by her mother and stepfather jointly. She only learned that she was not related to her stepfather after the parties' separation.

This case and others make it appear that the court is gutting the "psychological parent" statute wholesale in response to the U.S. Supreme Court's 2000 decision in Troxel v. Granville. Its examination of the constitutional question in Wilson was quite dissatisfying. The court questioned only whether step-parents might, like biological parents, have a constitutionally protected right to custody of their stepchildren. The court did not examine whether the distressing facts of the case might have made out a waiver of the mother's constitutional right to insist on an award of custody contrary to the children's best interests.

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.

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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.

Please share this newsletter with your colleagues. If you want to receive your own e-mailed copy of the newsletter in the future, please contact me and we will add your name to the distribution list.