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State ex rel. Simons v. Simons

Court of Appeals of Oregon

September 17, 2014

STATE OF OREGON ex rel WENDY JILL SIMONS, Petitioners-Respondents,
v.
ALTON DAN SIMONS, Respondent-Appellant

Argued and Submitted June 4, 2014

Lane County Circuit Court 171219549. Ilisa Rooke-Ley, Judge.

George W. Kelly argued the cause and filed the brief for appellant.

Inge D. Wells, Assistant Attorney-in-Charge, argued the cause for respondent State of Oregon. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

No appearance by respondent Wendy Jill Simons.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 558

[265 Or.App. 559] TOOKEY, J.

In this proceeding under ORS 416.400 to 416.465 to establish a child support order, respondent Alton Simons (Simons) appeals from a judgment of the circuit court determining that he is the legal father of J, petitioner Wendy Simons' (mother) child, and ordering him to pay child support in the amount of $466 per month until J reaches the age of 18 or until J reaches the age of 21 if he is attending school as defined under Oregon law. Although Simons has a close and loving relationship with J, there is no dispute that he is not the child's biological father. The primary question on appeal is whether, in light of that fact, the trial court erred in entering the support order. We conclude that the trial court did not err, and we therefore affirm.

As a preliminary matter, we provide an overview of the statutory context. The State of Oregon is authorized in certain circumstances to initiate proceedings for the establishment and enforcement of child support obligations.[1] The applicable procedures are set forth in ORS 416.400 to 416.465 and include provisions for administrative review and de novo judicial appeal. When, as here, the parties reside in different states, a proceeding for the establishment or enforcement of a child support obligation is also subject to the Uniform Interstate Family Support Act (UIFSA), ORS chapter 110. The two statutory schemes are mutually consistent. In cases subject to UIFSA, an Oregon court authorized to consider a child support matter is required to apply the procedural and substantive law of Oregon and to " determine the duty of support and the amount payable in accordance with the law and support guidelines of this state." ORS 110.348. Thus, in child support proceedings subject to UIFSA, the procedures of ORS 416.400 to 416.465 also apply.

A district attorney is among the persons authorized to initiate proceedings under ORS 416.400 to 416.465. [265 Or.App. 560] ORS 416.400(1); ORS 25.010(1).

Page 559

Under ORS 416.415, when the district attorney determines that a parent is responsible for the financial support of a child, the district attorney may issue a " notice and finding of financial responsibility" to the parent setting forth the duty of support and the amount payable. This case was initiated through that procedure.

The pertinent facts are undisputed. The child was born in Louisiana on April 29, 2003. Mother and Simons were married at the time of his birth, and Simons is named as the father on the birth certificate. Mother and Simons were divorced in Louisiana on March 23, 2004. The dissolution judgment names two children of the marriage, but does not mention J and does not provide for child support.

Mother and J live in Louisiana, and Simons lives in Oregon. In March 2012, the Lane County District Attorney received a request to establish a child support order for J, pursuant to ORS 416.415(1).[2] In May 2012, the district attorney issued a " notice and finding of financial responsibility" pursuant to ORS 416.415 proposing that Simons be ordered to pay mother child support of $294 per month and past support of $588.

On June 12, 2012, Simons requested a hearing, ORS 416.415(6),[3] and, pursuant to ORS 416.427,[4] an administrative [265 Or.App. 561] law judge (ALJ) for the Office of Administrative Hearings held a hearing and issued an order on August 27, 2012, setting Simons's child support obligation at $568 per month. At the hearing, Simons asserted that he is not J's biological father. The ALJ concluded that the record was sufficient to show that Simons is J's legal parent, because Simons is identified as the father on the child's birth certificate, and because of a presumption of legal paternity under ORS 109.070(1)(a).[5]

Simons requested a hearing de novo in the circuit court pursuant to ORS 416.427(6).[6] Simons contended that, although he has a close relationship with J, and sends money when he is able, he has known since before the child's birth that he is not the child's biological father and, for that reason, he should not be subject to an order for child support. After a hearing, the court issued a general judgment on December 10, 2012, finding that Simons had not rebutted a presumption of paternity, that Simons is J's legal father, and that Simons should pay mother child support of $466 per month, to continue until J reaches age 18 or age 21 if attending school.

As previously mentioned, because Simons resides in Oregon and mother and the child reside in ...


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