dissenting.
The majority holds that, even though the parties were not married at the time of trial, the trial court properly made a property division and awarded child support and attorney fees under ORS 107.105. It states:
“In this case, in contrast, the Oregon court acquired jurisdiction over the parties’ status before the marriage was dissolved. As a result, when it was registered here, the California judgment became an Oregon judgment. The judgment gave the Oregon court ‘jurisdiction to award * * * the relief provided by ORS 107.105.’ ” 102 Or App at 173.
The legislature will be surprised to learn that a foreign judgment registered under ORS chapter 24 can vest an Oregon court with ancillary subject matter jurisdiction under ORS 107.105. As early as 1888, Oregon courts recognized that the authority to dissolve a marriage and relief incidental to it is purely statutory. See Weber v. Weber, 16 Or 163, 17 P 866 (1888). The court reiterated the same principle in Ashford v. Ashford, 201 Or 206, 249 P2d 968, 268 P2d 382 (1954), when a party argued that the court was without jurisdiction to enter an order for publication of summons and the court said:
“At the outset, it must be conceded that the court which rendered the decree of divorce was then exercising a special power conferred upon it by statute, and not according to the course of the common law. We have frequently said that when exercising a special power conferred upon it by statute, and not according to the course of the common law, a circuit court is a court of special and inferior jurisdiction, and its proceedings in such cases are subject to all the incidents applicable to a court of that type.” 201 Or at 215.
ORS 107.115 provides, in relevant part:
“(1) A decree of annulment or dissolution of a marriage restores the parties thereto to the status of unmarried persons, unless the party is married to another person. Such decree shall give the court jurisdiction to award, to be effective immediately, the relief provided in ORS 107.105.” (Emphasis supplied.)
Under ORS 107.115(1), the authority to grant a judgment of dissolution also gives the court ancillary subject matter jurisdiction to award other relief as provided in ORS 107.105. *176Unless the court has authority to grant a judgment of dissolution, it cannot award any other relief under ORS 107.115. It appears to be the majority’s position that, because the parties were married at the time the petition for dissolution was filed, the court acquired subject matter jurisdiction. That premise ignores the express language of ORS 107.115(1). Even though the court may initially have had jurisdiction over the parties and the subject matter of the marriage, it lost subject matter jurisdiction when the California court dissolved the marriage. Without the ability to dissolve the marriage, the court was without authority to grant any other relief.
The majority also misreads the holding of Rodda v. Rodda, 185 Or 140, 200 P2d 616, 202 P2d 638, cert den 337 US 946 (1949). There, as the majority acknowledges, the court held that statutes pertaining to dissolution of a marriage and separation from bed and board expressly conditioned the court’s subject matter jurisdiction over support, property division and child support on its authority to grant a dissolution, annulment or legal separation. The majority states:
“The Rodda court had no reason to consider the effect of a concurrent Oregon case on the trial court’s jurisdiction, and its holding, therefore, does not control in these circumstances.” 102 Or App at 174.
The holding in Rodda is based on statutory language similar to that found in ORS 107.115.1 While it is correct factually that neither the husband or wife in Rodda sought to dissolve their marriage in Oregon, the court’s interpretation of the controlling statutes is what makes Rodda’s reasoning persuasive under these circumstances.
In summary, what the majority has done is to create a new statutory scheme under which child custody, child support, and division of marital property can be adjudicated. It ignores the express language of ORS 107.115 and expands the authority of the court under ORS chapter 24 without regard *177for years of precedent on how Oregon courts acquire jurisdiction regarding these subjects. No matter how well-intentioned the majority is in its desire to provide relief to the parties, it has overstepped the province of the courts into the realm of the legislature. I dissent from such wholesale creativity with a statutory remedy. Our function is to interpret existing statutes, not create new ones.
The parties’ remedies lie with other legal theories or with the legislature which has been duly elected by the people of the State of Oregon and whose policies will reflect differing views of the populace. No out-of-state judgment or court ought to be able to tell our courts what they can and cannot determine under a statutory remedy. That policy decision is left solely to our legislature and it has told us that it is the judgment dissolving the marriage that gives the court jurisdiction to award child support, child custody and to divide marital property.
Richardson, J., joins in this dissenting opinion.OCLA § 9-914 (1947) provided, in relevant part:
“Whenever a marriage shall be declared void or dissolved, the court shall have power further to decree as follows[.]”
Or Laws 1941, ch 408, § 7 provided, in relevant part:
“Whenever the court shall grant a decree of separation from bed and board, it shall have power further to decree as follows[.]”