873 P.2d 401 | Or. Ct. App. | 1994
Wife petitions for Supreme Court review of our decision affirming the dismissal of her motion to modify the dissolution judgment. 124 Or App 646, 863 P2d 513 (1993). We treat the petition as one for reconsideration, former ORAP 9.15, allow it, modify our opinion and adhere to it as modified.
In our original decision we held that the question whether a motion may be brought under ORS 107.136
Wife relies on an excerpt from the minutes of the Conference Committee on HB 2445, now codified at ORS 107.136, which includes the following discussion:
“[Committee Counsel] Robinson: Suggests Committee consider having this become effective to support orders entered after a certain date.
“Chair Clark: What is the general rule if the Committee does not state anything about applicability?
“Rep. Edmunson: Applies to any action brought after that date.
“Chair Clark: It might create a difficulty if the basis for the determination were not clear.
*492 “Rep. Edmunson: The judge will have to make that determination.
“Rep. Parks: Understands that if the divorce was entered into in 1980 and terminated in 1985 * * * then that person has a right to come back and seek reinstatement.” Minutes, Conference Committee onHB 2445, June 19,1991, P 5.
We note that, in addition to that bit of legislative history, there also is a record of floor debates in the House of Representatives on the Conference Committee Report, which includes the following colloquy between Representative Edmunson, the carrier of the bill, and Representative Parks:
“Rep. Parks: In the divorce that was entered in 1970, and the support was terminated in 1980, for whatever reason, can it be reinstated and reactivated in 1990 [sic]? In other words, is this law retroactive to all divorces that have been entered before this time?
“Rep. Edmunson: This law only applies to motions that are brought after the effective date of the act. If a motion for reinstatement were brought, it would be allowed — would be within the jurisdiction of the court. However, because the moving party who wants to have it reinstated has to prove that the reasons for termination have ceased to exist, the burden of proof would be quite difficult for someone who had terminated their spousal support 10 years or so ago, but it is, in theory, possible, and, as you know, Representative Parks, that’s what lawyers are for.
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“Rep. Parks: I don’t mean to suggest that this was the weasel word answer, but the answer to the question whether it is retroactive: It is retroactive, isn’t it?
“Rep. Edmunson: It is not retroactive, Representative Parks, because, as you know, retroactivity would change the outcome of cases previously decided. A final order would not be reopened because of this law. However, new motions brought, it would have prospective application. It will not change anything that has previously been ordered. However, it allows motions within the new law. That is the case with almost anything we do.” Tape recording, House Floor Session, June 24, 1991, Tape 29-A at 1034-1145. (Emphasis supplied.)
Second, the legislative history that bears on the subject of retroactivity is not conclusive. The excerpt from the conference committee hearings reveals no more than what one or more committee members assumed to be the general rule of law concerning the legal effect of the legislature saying nothing about retroactivity. Moreover, their assumption about that general rule of law was incorrect.
In the light of the absence of language in ORS 107.136 suggesting that the legislature intended it to apply retroactively, and in the light of the legislative history that can only be characterized as inconclusive, we adhere to our conclusion that the law applies only to revive spousal support that was terminated after the effective date of the statute.
Reconsideration allowed; opinion modified and adhered to as modified.
ORS 107.136 provides:
“Whenever spousal support has been terminated under ORS 107.135, the court has the power to order reinstatement of the support obligation if:
“(1) The basis for the termination ceases to exist; and
“(2) The reinstatement motion is filed within the period of time support would have been paid had the support obligation not been terminated.”
In our prior opinion we referred to the other provisions enacted at the same time as ‘ ‘legislative history. ’’Those other provisions are more properly characterized as the “context” of ORS 107.136. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993).
The general rule is that, when the legislature fails to express any intention with respect to retroactivity, a statute will be applied only prospectively if it “impair[s] existing rights, creates new obligations or impose[s] additional duties with respect to past transactions.” Kempfv. Carpenters and Joiners Union, 229 Or 337, 343, 367 P2d 436 (1961).