Petition for Supreme Court Review of Dennis James Crocker

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Marriage of

DENNIS JAMES CROCKER,

          Petitioner on review,

      and

MARIANNE ELLEN CROCKER,

          Respondent on review.

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Multnomah County Circuit Court
No. 8706-64201

Appellate Court
No. CA A99888

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PETITION FOR REVIEW OF DENNIS JAMES CROCKER

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Petition for review of the decision of the Court of Appeals
on appeal from a judgment of the Circuit Court for Multnomah County,
Honorable Paula J. Kurshner, Judge

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Date of Court of Appeals decision: December 16, 1998
Author of opinion:	ARMSTRONG, J.
Concurring judges:	Warren, P.J., and Edmonds, J.

Notice: If review is allowed, petitioner intends to rely on this petition for

review and the brief filed in the Court of Appeals.

Attorneys for Respondent on Review: GREGORY B. SORIANO # 73285 Soriano & Associates 1618 S.W. First Ave., Suite 314 Portland, Oregon 97201 (503) 243-5385	Attorney for Petitioner on Review: LAWRENCE D. GORIN # 73109 Attorney at Law 621 S.W. Morrison St., Suite 350 Portland, Oregon 97205 (503) 224-8884
BARRY L. ADAMSON # 79008 Attorney at Law 4248 S.W. Galewood P.O. Box 1172 Lake Oswego, Oregon 97035 (503) 675-4353	Attorneys for Amicus Curiae: HARDY MYERS # 64077 Attorney General MICHAEL D. REYNOLDS # 74269 Solicitor General DAVID SCHUMAN # 84344 Deputy Attorney General 400 Justice Building Salem, Oregon 97310 (503) 378-6002

PETITION FOR REVIEW
Prayer for Review

Petitioner on review (hereafter referred to as father) prays for review and reversal of the decision of the Court of Appeals in Crocker and Crocker, 157 Or App 651, ____P2d____ (1998), for the reasons hereafter stated.

Legal Question Presented on Review

Did the Court of Appeals err in concluding that ORS 107.108 does not violate the equal privileges and immunities provision of Article I, section 20, of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?

Reason for Reversal of Decision of Court of Appeals

In making its decision, the Court of Appeals engaged in hypothetical speculation in order to create a supposed rational basis for sustaining the irrational distinctions established by ORS 107.108. The logic and reasoning employed by the Court of Appeals is faulty and erroneous and is not supported by caselaw, statute or legislative history.

Statement of Facts

The factual details are correctly stated in the opinion of the Court of Appeals.

In sum, the parties were divorced in 1987. They have three children, two of whom are now adults. In 1997, mother moved to modify the dissolution judgment to compel father to pay additional support for the benefit of the parties’ adult children, each of whom at that time qualified as a "child attending school" as defined in ORS 107.108. Father objected, arguing that ORS 107.108 violates the equal protection clauses of the state and federal constitutions by imposing support obligations on divorced and separated parents that are not on like terms applicable to married parents.

The trial court agreed with father and declared the statute unconstitutional. Mother appealed. The Court of Appeals reversed. Crocker and Crocker, 157 Or App 651, ____P2d____ (1998). Father now petitions for review.

Argument

In upholding the constitutionality of ORS 107.108, the Court of Appeals premises its decision on the principle that "the state has an interest in having a well-educated populace." *fn1 Father does not disagree. The issue before the court, however, is whether this interest is advanced by ORS 107.108 in a manner that is consistent with the equal privileges and immunities provision of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment of the US Constitution.

The Court of Appeals, although recognizing that young adults endeavoring to pursue higher education have no general right to compel their parents to pay for them to do so, now declares that "the state has an interest in having parents [of adult children] support their children in that endeavor." This conclusion is reached without citation to case law, statute or legislative history. It is of questionable validity.

On the basis of this questionable conclusion, the Court of Appeals erroneously upholds the constitutionality of ORS 107.108, explaining that the statute advances the court-declared interest of the state "by providing the means for some children to attend school." (Emphasis supplied.) Therein lies the problem.*fn2

As the Court of Appeals sees it, the state’s interest in having a "well-educated populace" does not extend to all Oregon citizens; rather, at least as embodied in ORS 107.108, it extends only to some Oregon citizens, i.e., those whose parents happen to be divorced, separated or never-married. Further, as construed by the Court of Appeals, the state’s interest in having parents of adult children support such children in their college endeavors does not extend to all parents; rather, it extends only to some parents, i.e., those who are divorced, separated or never-married.

ORS 107.108 it is a discretionary statute, presumably to be implemented upon a showing of the individual student’s need for the money. Absent a showing of need for parental assistance on the part of the individual young adult attending college, the state has no interest in ordering parents to pay money to or for such adult children, regardless of the marital status of the student’s parents.

Given that the objective of ORS 107.108 is to provide a legal remedy for compelling parents to support their adult children who attend college and who are in need of such support (thereby advancing the state’s interest in having a well-educated populace), class distinctions restricting or limiting the statute’s application must have a rational relationship to the statute’s objective.

The equal privileges and immunities clause of the Oregon Constitution, as well as the Fourteenth Amendment of the US Constitution, does not prohibit all class distinctions that might result from a particular statute. However, to pass constitutional muster, a statute must not result in "different treatment be[ing] accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute." Eisenstadt v. Baird, 405 US 438, 92 S Ct 1029, 31 L Ed 2d 349 (1972).

ORS 107.108 flunks this fundamental constitutional test. It places citizens into different classes based on a criterion wholly unrelated to the statute’s objective, which is to assure that a college student’s need for financial support from parents is fulfilled.

The plight of an adult child of divorced parents, attending college and in need of parental support, is in no way different from the plight of an adult child of married parents, also attending college and in need of parental support.

Young adults who need parental support for college and whose parents are divorced are not "more needy" simply because their parents are divorced, in contrast to adult children in like circumstances whose parents happen to be married. Likewise, young adults in the same situation whose parents are married are not "less needy" simply because their parents are married. Need is need; it should not be contingent on the marital status of the needy student’s parents.

By limiting its application to only one class of parents and young adults attending college, based not on the financial need of the adult student alone but also on the marital status of the adult student’s parents, ORS 107.108 establishes distinctions that are wholly unrelated to the legitimate state interest that the statute purportedly seeks to advance.*fn3

In essence, ORS 107.108 imposes a legal liability for financial obligations on certain parents of college age young adults in need of support while effectively granting an immunity from such liability to other parents of college age young adults equally in need of support, based simply on the marital status of the parents, irrespective of the actual financial needs of the student or the financial abilities of the parents. That just doesn’t make sense.

Nonetheless, in an effort to find some basis on which to save the statute, the Court of Appeals has conjured up a litany of hypothetical and speculative rationales, all without citation to case law, statutory policy or legislative history.

According to the Court of Appeals, "it might be" that, "although both parents agree that they should support their child attending school, they disagree on how much each of them should contribute, so that one or both of them contribute nothing." What the Court of Appeals fails to recognize is that it might be that married parents likewise disagree about how much they should contribute, thus producing the same result.

According to the Court of Appeals, "it might be" that "the nature of the relationship between the parents is so acrimonious that they refuse to agree on anything." What the Court of Appeals fails to recognize is that it might be that the same situation exists with parents who happen to be married, thereby producing the same result. (This may be particularly true when one spouse dominants the marriage and controls of the family’s financial affairs.)

According to the Court of Appeals, "it might be" that "the parent who did not have custody when the child was a minor is unwilling to provide support precisely because he or she did not have custody." What the Court of Appeals fails to recognize is that it might be that married parents, having jointly provided for their children through the years of minority, now feel, as matter of principle, that their responsibilities have been fulfilled and opt not to render any further financial assistance.

According to the Court of Appeals, "it might be" that "one of the parents who, when married, considered support for his or her [adult] child attending school to be a moral obligation, now considers it to be only a legal obligation and, hence, that the parent will provide support only if ordered to do so by a court." Again, what the court fails to recognize is that it might be that parents who are married consider support for their adult children attending school to be only a moral obligation and, having no legal obligation and no court order, simply reject the adult child’s request altogether or pay only such amount as they deem appropriate, regardless of the degree of actual need.

Finally, the Court of Appeals says that "legislators could rationally envision situations in which, but for the fact that a child's parents are divorced or separated, the parents would support the child while the child attends school." In that situation, according to the court, the parents' marital status of being divorced or separated operates to thwart the state's interest in having parents support their children while the children are attending school. What the court fails to recognize is that situations can also be rationally envisioned in which, because the parents are married, no support, or insufficient support, is forthcoming, the married parents knowing that they, not their children and not the government, have the final say on the question of college support for adult children.

Thus, under close scrutiny, none of the situations hypothesized by the Court of Appeals are unique to divorced or separated parents only, and none provide a rational basis for sustaining the discriminatory classification inherent to ORS 107.108.

Lastly, in an apparent effort to brush aside the statute’s otherwise obvious unconstitutional disparity, the Court of Appeals, without supporting citation, declares that "A statute does not have to be perfect in order for it to be rational." Further elaborating, the court says "[T]he statute can be underinclusive or overinclusive, as long as the distinction that it makes among classes is reasonably related to a legitimate state interest." That some Oregon citizens are treated differently than others by the terms of ORS 107.108 does not appear to be of consequence to the Court of Appeals.

This is, indeed, new caselaw and is most difficult to square with the prior decisions of the Supreme Court, which have construed Article I, section 20, of the Oregon Constitution as being "a guarantee against unjustified denial of equal privileges or immunities to individual citizens" as well as "against unjustified differentiation among classes of citizens." State v. Clark, 291 Or 231, 239, 630 P2d 810, cert den 454 US 1084 (1981). (Emphasis supplied.)

The essence of Article I, section 20, as well as the Fourteenth Amendment, 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.

Reasons Why the Issues Presented Have Importance Beyond the Instant Case

The instant case presents a significant issue of law, involving the constitutionality of a statute.

The issue involved --- the legal authority for court orders compelling divorced, separated and never-married parents to contribute college support for their adult children --- is one that is inherent to virtually every domestic relations case where the parties have children who are under age 21.

ORS 107.108 and the financial obligations resulting therefrom have a direct affect on thousands of Oregon citizens. The decision of the appellate court on the constitutionality of this statute is of significant and substantial consequence to the public and, indeed, has generated much public debate and discussion.

Respectfully submitted,

Dated: February 16, 1999.

/s/ LAWRENCE D. GORIN__________
LAWRENCE D. GORIN # 73109
Attorney for Dennis James Crocker
Petitioner on Review

Office address:
Law Offices of L.D. Gorin
621 S.W Morrison St., Suite 440
Portland, Oregon 97205
Phone: (503) 224-8884
Fax: (503) 223-0218

Footnotes

*fn1 To advance this interest, the state has established a network of publicly financed universities, colleges and community colleges; provides reduced tuition rates for Oregon residents; administers the Higher Education Student Loan Fund; and uses public money to assist Oregon students in attaining higher education through scholarships, grants and work-study programs, all based on eligibility factors that do not discriminate based on the marital status of the student's parents. The policy of the state in so doing is to enable all Oregonians (not just some Oregonians) to pursue higher education, consistent with their academic and vocational abilities, "regardless of individual economic or social circumstances." See, e.g., ORS 348.005 (policy on student financial aid); ORS 351.001 through 351.009 (policy on higher education); and ORS 341.009 (policy on community college education).

*fn2 As expressed by the Pennsylvania Supreme Court in a case factually identical to that at bar:

"Recognizing that within the category of young adults in need of financial help to attend college there are some having a parent or parents unwilling to provide such help, the question remains whether the authority of the state may be selectively applied to empower only those from non-intact families to compel such help. We hold that it may not." Curtis v. Kline, 542 Pa 249, 666 A2d 265, 269 (1995).

*fn3 The Pennsylvania Supreme Court summed up the situation as follows:

"In the absence of an entitlement on the part of any individual to post-secondary education, or a generally applicable requirement that parents assist their adult children, we perceive no rational basis for the state government to provide only certain adult citizens with legal means to overcome the difficulties they encounter in pursuing that end." Curtis v. Kline, 542 Pa 249, 666 A2d 265, 269 (1995).

ORS 107.108

(Oregon Revised Statutes - 1997 edition)

(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:

(a) After the commencement of a suit for annulment or dissolution of a marriage or for separation from bed and board and before the decree therein;

(b) In a decree of annulment or dissolution of a marriage or of separation from bed and board; and

(c) During the pendency of an appeal taken from all or part of a decree rendered in pursuance of ORS 107.005 to 107.085, 107.095 to 107.174, 107.405, 107.425, 107.445 to 107.520, 107.540, 107.610 or this section.

(2) An order providing for temporary support pursuant to subsection (1)(c) of this section may be modified at any time by the court making the decree appealed from, shall provide that the support money be paid in monthly installments, and shall further provide that it is to be in effect only during the pendency of the appeal. No appeal lies from any such temporary order.

(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) When the court orders support under this section or the administrator or a hearings officer orders support for a child attending school under ORS 416.400 to 416.470, the court, administrator or hearings officer shall order that the support be distributed to the child unless good cause is found for the distribution of the payment to be made in some other manner. When there are multiple children for whom support is ordered, the amount paid directly to a child under this subsection is a prorated share based on the number of children for whom support is ordered unless otherwise ordered by the court, administrator or hearings officer. The Department of Human Resources shall adopt rules to define good cause and circumstances under which the administrator or hearings officer may allocate support by other than a prorated share and to determine how support is to be allocated in those circumstances.

(5) A child for whom support has been ordered under this section:

(a) Must maintain the equivalent of a C average or better.

(b) Shall notify a parent paying support when the child ceases to be a child attending school.

(c) Shall submit to the Department of Human Resources and the parent paying support, on a form developed by the department, all information necessary to establish eligibility to receive support under this section, including grades earned and the courses in which the child is enrolled. The child shall submit the information required by this paragraph within the first month of each term or semester.

(6) If the child fails to comply with any of the requirements imposed on the child by this section and upon written notice from the obligor, the distribution of the support directly to the child ceases and may not be reinstated unless the parent paying support elects to continue to pay the support, in spite of the child's failure to comply with the requirements of this section, and notifies the Department of Human Resources of the election in writing. If the underlying support order is for the support of more than one child, the parent shall pay the amount previously paid directly to the child to the recipient of the rest of the support until such time as the support order is modified. A child's failure to comply with the requirements imposed by this section is a substantial change of circumstances for purposes of modification of a support order.

(7) Orders entered into prior to October 4, 1997, may be modified to include the provisions of subsections (4) to (6) of this section. However, the fact that an order entered, or agreement entered into, prior to October 4, 1997, does not contain any of the provisions of subsections (4) to (6) of this section does not constitute a substantial change of circumstances for purposes of modifying a child support order.

(8) 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." [1973 c.827 §12b; 1981 c.669 §1; 1989 c.518 §1; 1995 c.343 §21; 1997 c.704 §51]