State ex rel. Yancy v. Wilke

PER CURIAM The state seeks reversal of the trial court’s pretrial order allowing defendant’s demurrer to a show cause order. Defendant was ordered to show cause why he was not in contempt of court for failing to obey a child support order. The trial court, relying on our decision in State ex rel Mikkelsen v. Hill, 108 Or App 135, 813 P2d 1130 (1991), allowed defendant’s demurrer on the ground that ORS 33.065(7), which makes inability to pay child support an affirmative defense, violates the Fourteenth Amendment to the United States Constitution. However, the Supreme Court reversed our decision and held that it is constitutionally permissible to make inability to pay a child support order an affirmative defense in a contempt proceeding. State ex rel Mikkelsen v. Hill, 315 Or 452, 847 P2d 402 (1993). Accordingly, the trial court erred in allowing defendant’s demurrer to the show cause order. Reversed and remanded.