Opinion
P79-131; CA A39979
Argued and submitted February 9, 1987.
Reversed and remanded with instructions July 8, 1987.
Appeal from the the Circuit Court, Douglas County, Gerald Neufeld, Judge Pro Tempore.
Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
No appearance for respondent.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
PER CURIAM
Reversed and remanded with instructions to reinstate October 14, 1981, filiation and support order.
In 1981 in a filiation proceeding under ORS 109.124 et seq, the court entered an order establishing paternity and providing for child support to be paid by respondent. In February, 1986, respondent moved to set aside the order on the ground that it is void, because the original petition failed to establish jurisdiction under the Uniform Child Custody Jurisdiction Act. ORS 109.700 et seq. The trial court held that the act does not govern jurisdiction over filiation proceedings but set aside the support portion of the 1981 order and what it viewed as an award of custody to mother. We reverse.
The UCCJA applies to a "custody determination," which it defines as "a court decision and court orders and instructions providing for the custody of a child, including visitation rights." However, " 'custody determination' does not include a decision relating to child support or any other monetary obligation of any person." ORS 109.710(2); see ORS 109.730(1). The 1981 order did not award custody. Custody resulted by operation of law after paternity was established. ORS 109.175. Therefore, the trial court could not affect custody. The trial court also erred in setting aside the child support order. Determination of support, pursuant to ORS 109.155(4), was within the court's authority.
State ex rel Pennsylvania v. Stork, 56 Or. App. 335, 641 P.2d 660, rev den 293 Or. 190 (1982), and Overturf v. Lauzon, 63 Or. App. 252, 663 P.2d 46 (1983), relied on by respondent at trial, do not apply. In Stork we held that UCCJA jurisdictional requirements must be met before a trial court can enter a custody decree in a dissolution proceeding. Lauzon was also a custody proceeding, but UCCJA was not an issue on appeal. Neither case was a filiation proceeding.
Reversed and remanded with instructions to reinstate the October 14, 1981, filiation and support order.