FILED: July 15, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

DANIEL A. MCCLAIN,

Appellant,

v.

SUSAN M. MCCLAIN, nka
Susan M. Phillips,

Respondent,

and

STATE OF OREGON, Department
of Human Resources,

Intervenor-Respondent.

(96-2190; CA A98294)

Appeal from Circuit Court, Columbia County.

Ted E. Grove, Judge.

Argued and submitted May 11, 1998.

James D. Huffman argued the cause for appellant. With him on the brief were Mary T. O'Hanlon and Olsen & Huffman.

John F. Hunnicutt argued the cause and filed the brief for respondent.

James R. George, Assistant Attorney General, argued the cause for intervenor- respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De Muniz, Presiding Judge, and Deits, Chief Judge, and Haselton, Judge.

PER CURIAM

Affirmed.


DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS

Prevailing party: Respondents

[ ] No costs allowed.

[X] Costs allowed, payable by: Appellant

[ ] Costs allowed, to abide the outcome on remand, payable by:


PER CURIAM

Father sought a judgment declaring that he is not the father of respondent mother's child and setting aside a 1992 judgment of dissolution to the extent that it decides paternity. Father alleged that the judgment was procured by fraud because mother lied when she told him that he was the father of the child. The trial court granted mother's motion to dismiss, holding that father had failed to plead any facts alleging extrinsic fraud. The trial court did not err. For father to show that he was prevented from impeaching the judgment by mother's fraud, he must plead and prove fraud extrinsic to the proceedings; an allegation of perjury in the course of the proceedings is insufficient. Watson v. State of Oregon, 71 Or App 734, 737, 694 P2d 560 (1985). Father did not make that showing.

We do not address father's argument, which was not briefed and was made for the first time at oral argument, that 1997 Oregon Laws, chapter 746, section 23, allows him to challenge the judgment.(1)

Affirmed.


1. The effective date of that section, which is not codified but is compiled following ORS 109.070, was August 4, 1997, after father filed this proceeding, but before he filed his brief in this court.

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