dissenting.
The majority reads the statutory provisions relating to child support too narrowly. In doing so, it appears to treat the custodial parent as having no duty to support the parties’ child. It is true, as the opinion states, that when the child’s custody was changed to father in 1981, his obligation to make support payments was terminated. All that means is that, although he was no longer obligated to make payments to mother for child support, he was, nevertheless, obligated to provide lodging, food, clothing, and so forth, to the child. Under Smith v. Smith, 290 Or 675, 626 P2d 342 (1981), that support obligation, under appropriate circumstances, may be apportioned in dollar amounts between the custodial and noncustodial parents.
That duty to provide support does not necessarily terminate after the child has attained the age of majority, if *324the child is attending school, ORS 107.108(1)(b),1 and is under 21. Eusterman and Eusterman, 41 Or App 717, 598 P2d 1274 (1979). The majority would read that statute to apply only to the noncustodial parent. I respectfully submit that that interpretation is neither correct under a literal reading of the statute, nor does it make sense. The statute clearly provides that “the court may provide for the support or maintenance of a child attending school;”2 it does not say that the court must require the noncustodial parent to pay that support or maintenance to the custodial parent for the use of the child. In fact, the statute expressly states that the authority so granted is “in addition to any other authority of the court.” Here, the trial court modified the decree to provide for that support or maintenance.
The majority’s restrictive reading of the statute does not make sense for at least two reasons: (1) a child who is over the age of majority may not be placed in the legal “custody” of either parent in the sense of the domestic relations statutes;3 accordingly, neither parent is the custodial parent here; and *325(2) the duty to support a child who is over age 18 and under age 21 who is attending school may be apportioned between the parents under the rationale of Smith v. Smith, supra, regardless of which of them, if either, has “custody.” Here, the adult child was living with her grandparents at the time of the hearing, and father had neither physical nor legal custody of daughter.
Concededly, this case is clumsy procedurally, because the 1981 order changing custody from mother to father did not specifically require father to provide for the support or maintenance of the child under the circumstances presented here. As indicated above, however, I think that it could have done so, but, because it did not, the trial court properly found father not to be in contempt of that order. However, mother also filed a motion to modify the decree to add that specific requirement.
Pursuant to ORS 107.108(3),4 daughter was a party, and father treated her as a party. The statute does not say that the child shall be made a party, it states that the child is one if the court provides for the support and maintenance of the child attending under that section. It is clear from the record that the child was present in court and that the petitioner’s counsel was representing her. On daughter’s motion, the court ordered that the show cause hearing’s costs be waived. The order from which this appeal is taken recites that daughter appeared personally and by counsel. Father’s notice of appeal *326is directed to both mother and daughter, and states that daughter is an adverse party. The majority says that daughter does not qualify as a party, apparently because they believe that “the court must have provided for the ‘support and maintenance of the child’ pursuant to ORS 107.108.” (70 Or App at 320; emphasis supplied.) The statute does not say that. It says, “If the court provides for the support * * * the child is a party for purposes of matters related to that provision.” (Emphasis supplied.) The order here “provides” for the support of daughter and she is, therefore, a party as a matter of law.
In spite of the clumsiness of the statutes and of the procedure followed here, I believe the trial court had authority to modify the decree to provide specifically for the support and maintenance of the child attending school. I would affirm.
Richardson and Van Hoomissen, JJ, join in this dissent.ORS 107.108(1)(b) provides:
“(1) In addition to any other authority of the court, the court may provide for the support or maintenance of a child attending school:
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“(b) In a decree of annulment or dissolution of a marriage or of separation from bed and board.”
ORS 107.108(4) provides:
“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 vocational 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.’ ”
ORS 107.105(1)(a) and (c) provide, as relevant:
“(1) Whenever the court grants a decree of marital annulment, dissolution or separation, it has power further to decree as follows:
“(a) For the future care and custody, by one party or jointly, of all minor children of the parties born, adopted or conceived during the marriage, and for minor children born to the parties prior to the marriage, as the court may deem just and proper pursuant to ORS 107.137. Whenever there is a petition before the court on the issue of child custody, the court may hold a hearing to decide the custody issue prior to any other issues.
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“(c) For the recovery from the party not allowed the care and custody of such children, or from either party or both parties if joint custody is decreed, such amount of money, in gross or in instalments, or both, as constitutes just and proper contribution toward the support and welfare of such children. The court may at any time require an accounting from the custodial parent with reference to the use of the money received as child support. The court is not required to order support for any minor child who has become self-supporting, emancipated or married, or has ceased to attend school after the age of 18. In determining the amount of the child support, the court shall consider the economic needs of the children and determine payment by the parents in proportion to their respective ability to pay. ***”
ORS 107.108(3) provides:
“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.”