Oregon's Crocker v. Crocker update, 11-22-99Brief on the Merits on Behalf of Petitioner on Review of the Decision of the Court of Appeals, 9-99A message from Dennis Crocker's Attorney, Larry Gorin...
Greetings....
For your information:
On April 13, 1999, the Oregon Supreme Court granted Dennis Crocker's Petition for Review.
Mr. Crocker is asking the Oregon Supreme Court to review the decision of the Oregon Court of Appeals (CROCKER and CROCKER, 157 Or App 651, 971 P2d 469 (1998) that upheld the constitutionality of ORS 107.108, the Oregon statute that allows parents of young adults (between age 18 and 21 and who are attending college) to be compelled to pay "child support" to or on account of such young adults but ONLY if the parents are divorced from one another or were never married to one another. Parents of children in like circumstances but who are married to one another are exempt of the scope of the statute.
Mr. Crocker, a divorced father of three children (the eldest two of whom are now adults who are attending college), contends that ORS 107,108 is irrational, inherently discriminatory, and violates the Equal Protection Clause of the US Constitution as well as the Equal Privileges and Immunities Clause of the Oregon Constitution.
In substantial part, Mr. Crocker's argument is the same as that presented to the Pennsylvania Supreme Court in Curtis v. Kline, 542 Pa 249, 666 A2d 265, 269 (1995), which resulted in that state's highest court declaring the comparable Pennsylvania statute as unconstitutional. In 1997, Judge Paula Kurshner of the Multnomah County Circuit Court (in Portland, Oregon) agreed with Mr. Crocker's contention and declared the Oregon statute unconstitutional. Mrs. Crocker then appealed to the Oregon Court of Appeals, which reversed the trial court and upheld the constitutionality of the statute.
The Oregon Supreme Court is a 7-member court. A Petition for Review is granted if three (or more) of the justices vote to do so. The vast majority of such petitions are denied. Granting review does not mean that the justices voting to do so necessarily disagree with the ruling of the Court of Appeals. However, it does indicate that at least three of the justices feel that legal issue presented is of such significance and importance, and the possibility of legal error so apparent, that further review by the state's highest court is warranted.
Next step in the process is the preparation of an additional briefs (Mr. Crocker has 28 days in which to do so, with Mrs. Crocker then having 28 days to respond), to be then followed by oral argument before the Supreme Court in Salem, Oregon.
Your comments, input, support (moral as well as financial), etc., are most welcome.
Kindest regards,
Lawrence D. Gorin
Law Offices of L.D. Gorin
621 S.W. Morrison St., Suite 350
Portland, Oregon 97205
Phone: 503-224-8884 (afternoons, Pacific time)
Fax: 503-274-0818
E-mail: LGOregon@pcez.com
November 8, 1999, Dennis Crocker's case was presented to the Oregon Supreme Court for oral arguments by Attorney Lawrence D. Gorin. There is no deadline for decision, but a good guess is that a decision will be handed down within the next 3 to 6 months. You can follow the release of all cases at the Oregon Supreme Court page. A useful service to alert anyone of web page changes is "Mind-it" at http://mindit.netmind.com/.
June 1999, Dennis Crocker files BRIEF ON THE MERITS OF PETITIONER ON REVIEW.
April 1999, the Oregon Supreme Court granted Dennis Crocker's Petition for Review.
April 1999, two bills were introduced into the Oregon Legislature that would eliminate the authority of the court to order support for child who is 19 years of age or older. You can track the status of these two bills, HB 3073 and HB 3260, at Fathers Online - Oregon Legislative Information for Fathers web page.
February 1999, Dennis Crocker files a Petition for Supreme Court (Oregon) Review of Dennis James Crocker.
December 1998, Oregon Court of Appeals overturned lower court ruling.
July 1998, the Oregon Court of Appeals heard oral arguments on a case where a Multnomah County (Oregon) judge ruled it is unconstitutional to require a divorced Portland father to help pay for his daughter's (over age 18) college expenses.
October 1997, Lawrence Gorin (Crocker's attorney) own comments
October 1997, Mom appeals ruling on support for college student
September 1997, JUDGE RULES CHILD SUPPORT FOR COLLEGE STUDENT UNCONSTITUTIONAL
January 1997, two bills were introduced in the Oregon Legislature that would eliminate the authority of the court to order support for child who is 19 years of age or older (HB 2315, introduced by Oregon Child Support Division & SB 471). Both failed to make it out of committee- see Fathers Online, Oregon Legislative Information for Fathers.
The Associated Press 09/27/97 4:00 AM Eastern
PORTLAND, Ore. (AP) -- A Multnomah County judge has ruled it is unconstitutional to require a divorced Portland father to help pay for his daughter's college expenses.
Marianne Groom, a middle school teacher sued to have her ex-husband, Dennis Crocker, a grocery store manager, pay for part of the college expenses of their 18-year-old daughter, a freshman at Santa Clara (Calif.) University. Lawrence Gorin, Crocker's attorney, successfully argued that the law is unconstitutional because it awards special privileges to adult children whose parents are divorced compared to with those whose parents aren't.
"I think it's a rather gutsy and unpopular move for a judge," Gorin said. Judge Paula J. Kurshner could not be reached Friday to elaborate on her decision.
Under Oregon law, noncustodial parents can be required to pay child support until their children are 18. They can also can be required to help pay their children's expenses up to until age 21 if the child is in college at least half-time. The 1997 Legislature also required such students to maintain a C average.
Judges routinely include such requirements in child support orders, said Russell Lipetzky, chairman of the Oregon State Bar Association's family and juvenile law section.
For now, Kurshner's decision -- thought to be the first in the state -- applies only to Groom's case. But if her decision is upheld on appeal, Lipetzky said, other judges probably would follow the precedent.
Crocker said he has felt the law was unfair ever since a judge ordered him two years ago to help pay college expenses for the oldest of his three daughters. "I don't have a problem with supporting my children," he said. "I have a problem with the law treating me differently from married parents."
But Groom said she's taken on extra jobs and loans to pay for her daughters' college education. She worries what will happen with their youngest daughter, now 15, reaches college age.
"It's not fair for one parent to walk away," she said. Groom hasn't decided whether she will pursue an appeal. She said she's thinking over the attorney expenses and possible future effects on her other children's child support payments. She has 30 days to appeal.
Copyright 1997 Associated Press. All rights reserved.
On Thursday, September 25, 1997, Multnomah County Judge Paula J. Kurshner declared Oregon's post-18 child support law (ORS 107.108) as unconstitutional, in violation of the equal protection provisions of both the Oregon and US constitutions.
Multnomah County Circuit Court case # 8706-64201.
Dennis J. CROCKER, Petitioner.
Atty: Lawrence D. Gorin
andMarianne E. Crocker,
Parties were divorced in 1987. Three children. At time to dissolution, children were 11, 8 and 5. Parties were granted joint custody, with father being ordered to pay child support to mother ($200 p/m p/c, for a total of $600 p/m).
In 1994, when the oldest child attained age 18 and entered college, mother ought modification of the dissolution decree. Relying on ORS 107.108 (Oregon's post-18 child support statute), mother asked the court to require father to pay additional support on account of the adult child's college expenses. Motion was granted. Support was increased to $942 p/m, of which $225 was specifically designated as father's contribution to the adult child's college expenses.
In 1997, when the parties' middle child reached age 18 and entered college, mother again sought modification of the child support obligation, this time seeking to impose additional support upon father for the two adult child, as well as additional support for the youngest child (now age 15).
The oldest child (now age 20) is attending Pepperdine University in California (estimated student cost: $28,150 per year). The middle child (age 18) has decided to attend Santa Clara University (estimated student cost: $26,226 per year).
In this latest proceeding, father filed a motion challenging the constitutionality of ORS 107.108. The matter came before Judge Paula J. Kurshner in Multnomah County on September 25, 1997.
Father argued that ORS 107.108 classifies young adults according to the marital status of their parents, establishing for one group a right to obtain a benefit enforceable by court order that is not available to the other group.
SUMMARY OF ARGUMENT: In cases where there is an intact family, with parents married and residing together, the statute has no application. In such cases, the parents have no legal obligation to provide support for adult children and adult children have no remedy for compelling such support. In essence, ORS 107.108 permits a burden to be imposed upon one class of citizens---divorced or separated parents---that cannot in like circumstances be imposed upon married parents residing together. Parents in this latter class are thus immune from such legal liability. Likewise, ORS 107.108 creates a privilege for one class of citizens---adult children of divorced or separated parents---that is not granted to children whose parents are married and residing together. In consequence, by establishing distinctions based upon the marital status of the parent, ORS 107.108 violates the equal protection clauses of both Oregon and United States constitutions.
Judge Kurshner agreed, declaring ORS 107.108 unconstitutional and dismissing mother's decree modification motion. It is anticipated that Judge Kurshner's ruling will be appealed to a higher court.
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
Family Law Department
In the Matter of the Marriage of )
)
DENNIS JAMES CROCKER, )
) No. 8706-64201
Petitioner, )
) PETITIONER'S
and ) MOTION TO DISMISS
)
MARIANNE ELLEN CROCKER )
(nka MARIANNE ELLEN GROOM), )
)
Respondent. )
MOTION
Petitioner (father) objects to respondent's (mother's)
motion for an order requiring father to pay money for the
support of the parties' adult children. Father moves for
judgment dismissing mother's motion.
Father also moves for judgment against mother on
account of father's attorney fees and costs incurred
herein, as allowed by ORS 107.135.
This motion is made on the grounds and for the reason
that ORS 107.108, the statute on which mother's motion is
premised, is unconstitutional.
Points and Authorities
ORS 107.108
Oregon Constitution, Art. I, 20.
US Constitution, Amendment XIV
Curtis v. Kline, 666 A2d 265 (Pa 1995)
ORS 107.108:
(1) In addition to any other authority of the court,
the court may enter an order against either parent, or
both of them, to provide for the support or maintenance of
a child attending school * * * [i]n a decree of annulment
or dissolution of a marriage or of separation from bed and board * * *.
(2) * * *.
(3) If the court provides for the support and
maintenance of a child attending school pursuant to this
section, the child is a party for purposes of matters
related to that provision.
(4) As used in this section, "child attending school"
means a child of the parties who is unmarried, is 18 years
of age or older and under 21 years of age and is a student
regularly attending school, community college, college or
university, or regularly attending a course of
professional or technical training designed to fit the
child for gainful employment. A child enrolled in an
educational course load of less than one-half that
determined by the educational facility to constitute
"full-time" enrollment is not a "child attending school."
Oregon Constitution, Art. I, 20:
"No law shall be passed granting to any citizen or
class of citizens privileges, or immunities, which, upon
the same terms, shall not equally belong to all citizens."
US Constitution, Amendment XIV:
"* * * No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any State * * * deny to any
person within its jurisdiction the equal protection of the
laws."
Factual background
Father is 41; mother is 40. The parties were divorced
in 1987 after an 11 year marriage that produced three
daughters. At the time of dissolution, the parties'
children were ages 11, 8 and 5. They are now 20, 18 and
15.
The parties' dissolution judgment provided for joint
custody of the children. Father was ordered father to pay
child support to mother in the amount of $200 per child,
for a total of $600. (Note: The 1987 judgment predated
the establishment of the Oregon Child Support Guidelines
by two years.)
In July, 1995, with the parties' eldest daughter
having attained age 18, the support judgment was modified
upon motion filed by mother. The court determined that
father had an obligation to support the adult daughter as
well as the two remaining minor children. The court
premised support upon the Child Support Guidelines,
ordering father to pay $239 per month for each of the
three children, for a total of $717 per month. Father was
also ordered to pay an additional $225 per month for the
adult child on account of said child's college expenses.
In July, 1997, with the parties' #2 child having now
attained age 18, mother has again moved for support
modification, seeking to increase overall support and,
specifically, to now require father to pay support for the
two older children, both of whom are now adults.
Legal Argument
Summary
ORS 107.108 is unconstitutional. It violates the
equal privileges and immunities clause of Article I,
section 20, of the Oregon Constitution as well as the
equal protection clause of the Fourteenth Amendment to the
United States Constitution.
Discussion
Under Oregon law, a person reaches the age of majority
at age 18. From that age forward, a person becomes an
adult and has "all the rights and [is] subject to all the
liabilities of a citizen of full age." ORS 109.510.
Generally, absent physical or mental disability, the
legal obligation of parents to support their children
comes to an end when the children reach the age of
majority. Thereafter, such children, having become
citizens of full age, have no legal right to compel
parental support, and parents have no duty to provide such
support.
ORS 107.108 creates an exception that empowers the
court to compel parental support for adult children who
meet the definition of a "child attending school."
The statute, by its own terms, is limited in its
application to only those cases involving "a decree of
annulment or dissolution of a marriage or of separation
from bed and board."
Consequently, in cases where there is an intact
family, with parents married and residing together, the
statute has no application. In such cases, the parents
have no legal obligation to provide support for adult
children and adult children have no remedy for compelling
such support.
In essence, ORS 107.108 permits a burden to be imposed
upon one class of citizens---divorced or separated
parents---that cannot in like circumstances be imposed
upon married parents residing together. Parents in this
latter class are thus immune from such legal liability.
Likewise, ORS 107.108 creates a privilege for one
class of citizens---adult children of divorced or
separated parents---that is not granted to children whose
parents are married and residing together.
In consequence, by establishing distinctions based
upon the marital status of the parent, a suspect
classification at best, ORS 107.108 violates the equal
protection clauses of both Oregon and United States
constitutions.
Curtis v. Kline
Perhaps most on point with the case before the bar is
Curtis v. Kline, 666 A2d 265 (Pa 1995) (copy attached
hereto).
Curtis involved a father's challenge to the
constitutionality of 23 Pa Con Stat 4327(a), enacted by
the Pennsylvania legislature as Act 62 of 1993:
"(a) General rule. --- * * * a court may order either
or both parents who are separated, divorced, unmarried or
otherwise subject to an existing support obligation to
provide equitably for educational costs of their child
whether an application for this support is made before or
after the child has reached 18 years of age."
The Pennsylvania court recognized that the statute
"classifies young adults according to the marital status
of their parents, establishing for one group an action to
obtain a benefit enforceable by court order that is not
available to the other group." 666 A2d at 269. So too
does ORS 107.108.
The court noted that there is no entitlement on the
part of any individual to a post-secondary education, nor
is there any requirement that parents assist their adult
children in obtaining such education. Accordingly, there
is no rational basis for the state government to provide
only certain adult citizens with legal means to overcome
the difficulties they counter in pursuing that end.
Pennsylvania's Act 62 and Oregon's ORS 107.108 deal
with the same subject and have the same substantive
effect. And both statutes suffer from the same
constitutional flaw: they both establish legal privileges
for one class of citizens and impose corresponding legal
liabilities for another class that are not applicable to
other citizens similarly situated, doing so without
rational basis.
The "rational classification"
While it may be inconvenient for an adult child to pay
his or her own way through school, there is no legal
reason why he or she should not do so if otherwise healthy
and able-bodied. An adult child who attends college but
is capable of working is not in need of support merely
because he or she is in school.
Nonetheless, it is anticipated that proponents of ORS
107.108 will argue that the statute's disparate
application is a rational distinction, as it protects
children of divorced parents from being unjustly deprived
of opportunities they would otherwise have had their
parents not divorced.
The problem, of course, is the implicit assumption
that married parents will always provide financial support
for their adult children's college endeavors. Such, of
course, is not the case. Without directly so declaring,
ORS 107.108 appears to be premised upon the notion that
all parents of adult children attending college have an
obligation to support such children. The statue then
affords a legal remedy to only one class of citizens:
adult children of divorced or separated parents.
The discriminatory classification resulting from ORS
107.108 is not focused on the parents but rather on the
children. Ultimately, the statute permits similarly
situated young adults, i.e., those in need of financial
assistance, to be treated differently. There is no
rational basis why children similarly situated with respect
to needing funds for college education should be
treated unequally, but such is the result of
ORS 107.108.
Concomitantly, assuming there is a parental obligation
to financially assist adult children wishing to attend
college, there is no rational basis for exempting married
parents, otherwise able to pay but choosing or refusing to
do so, from court-ordered liability while at the same time
permitting a court-ordered liability to be imposed on
divorced parents who are willing or able to otherwise
accept the obligation.
Conclusion
The essence of the Fourteenth Amendment and of Article
I, section 20 is simple: like citizens in like
circumstances are to be treated equally in the eyes of the
law. ORS 107.108 violates this fundamental constitutional
principle. The statute is unconstitutional and the court
should so recognize.
Respectfully,
Dated: , 1997. LAWRENCE D. GORIN OSB 73109
Attorney for Petitioner
LAWRENCE D. GORIN
Attorney at Law
Law Offices of Lawrence Gorin
350 American Bank Bldg.
621 S.W. Morrison St.
Portland, Oregon 97205
Phone: (503) 224-8884 (afternoons, Pacific time)
Fax: (503) 223-0218