Chapter 025

 

      25.010

 

NOTES OF DECISIONS

 

      Federal law that prohibits state courts from dividing military disability benefits between parties during dissolution proceedings does not prohibit state courts from considering those benefits when awarding child support. Morales and Morales, 230 Or App 132, 214 P3d 81 (2009)

 

      25.020

(formerly 23.765)

 

NOTES OF DECISIONS

 

      Under this section, social security payments made directly to the mother for child support obligation should not be credited to father’s support obligation. Cope and Cope, 291 Or 412, 631 P2d 781 (1981)

 

ATTY. GEN. OPINIONS: Constitutionality of the provision, (1976) Vol 38, p 407

 

      25.030

(formerly 23.767)

 

ATTY. GEN. OPINIONS: Necessity of nonwelfare recipients filing applications for child support enforcement, (1977) Vol 38, p 735

 

      25.070

(formerly 23.787)

 

NOTES OF DECISIONS

 

      “Delinquent support obligations” means a prior judicial order to pay support, not merely parents’ general obligation to support their children. State ex rel Washington v. Anderson, 26 Or App 467, 552 P2d 1343 (1976)

 

      25.080

(formerly 23.789)

 

NOTES OF DECISIONS

 

      Where Public Welfare Department was assigned mother’s child support rights pursuant to [former] ORS 418.042, this section did not bar state from seeking vacation of a satisfaction of judgment obtained by father with respect to his support obligation, for state was real party in interest. State ex rel Hansen v. McKay, 31 Or App 631, 571 P2d 166 (1977)

 

      This section creates assignor-assignee relationship between recipient of Aid to Dependent Children and state, and thus mere fact that assignor is required to cooperate with Support Enforcement Division attorney for state-assignee does not establish attorney-client relationship. Gibson v. Johnson, 35 Or App 493, 582 P2d 452 (1978), Sup Ct review denied

 

      District attorney who was not acting as enforcing agency for support order could not seek modification of support order. Gutierrez and Gutierrez, 117 Or App 106, 843 P2d 466 (1992)

 

      District attorney is “responsible for providing support enforcement services” where services are requested and payment records are maintained through Department of Human Resources. Nash and Nash, 126 Or App 39, 867 P2d 528 (1994)

 

      State authority to initiate child support modification action includes cases where child is not receiving public assistance and support is not in arrears. Nash and Nash, 126 Or App 39, 867 P2d 528 (1994)

 

      District attorney holds status as party to modification action, not merely facilitator of action. Hofstetter and Hofstetter, 129 Or App 365, 879 P2d 220 (1994)

 

      Dissolution judgment containing determination of nonpaternity does not preclude district attorney from establishing paternity in support action since district attorney does not act on behalf of party to dissolution action. State ex rel Moran v. Rushman, 177 Or App 290, 33 P3d 999 (2001), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Support Enforcement Division authority to enforce support orders for children placed in juvenile training schools, (1978) Vol 39, p 369; district attorney refusing to provide support enforcement services, (1979) Vol 40, p 126; acquisition of judgment debtor’s interest in mutual fund to recover moneys owed state, (1994) Vol 47, p 173

 

      25.210

(formerly 23.847)

 

ATTY. GEN. OPINIONS: Acquisition of judgment debtor’s interest in mutual fund to recover moneys owed state, (1994) Vol 47, p 173

 

      25.240

 

NOTES OF DECISIONS

 

      Ability of court to order child support by parent having legal custody “as long as that parent does not have physical custody” applies to shared custody arrangements. Greenfield and Greenfield, 130 Or App 632, 883 P2d 253 (1994)

 

LAW REVIEW CITATIONS: 69 OLR 689 (1990)

 

      25.245

 

NOTES OF DECISIONS

 

      Support obligation of party on public assistance is terminated until modified, not merely suspended for duration of public assistance. Hofstetter and Hofstetter, 129 Or App 365, 879 P2d 220 (1994)

 

      25.270 to 25.285

 

NOTES OF DECISIONS

 

      Guidelines apply to original determinations where substantial change in circumstances warrants change in support amount or where obligation is collected through enforcing agency. Gay and Gay, 108 Or App 121, 814 P2d 543 (1991)

 

      Once change of circumstances sufficient to warrant modification in any manner is shown, guidelines established under these sections control amount of child support awarded. Grage and Grage, 109 Or App 311, 819 P2d 322 (1991)

 

      Although trial court may consider potential income under Uniform Child Support Guidelines, presumption that parent can work full-time may be rebutted by showing that parent is unable to work full-time by reason of injury, and court may not speculate as to what parent could make after recovery from injury. Uppendahl and Uppendahl, 112 Or App 283, 828 P2d 1048 (1992)

 

      Where expenses paid by noncustodial parent are type that do not reduce custodial parent cost of raising child, expenses may not be set off against support obligation. Longcor and Longcor, 114 Or App 89, 834 P2d 479 (1992)

 

LAW REVIEW CITATIONS: 26 WLR 1019 (1990); 69 OLR 716 (1990)

 

      25.275

 

NOTES OF DECISIONS

 

      For calculating presumptive child support under guidelines, gross income of parents does not include income of new partners. Ainsworth and Ainsworth, 114 Or App 311, 835 P2d 928 (1992); Hardiman and Hardiman, 133 Or App 112, 889 P2d 1354 (1995)

 

      Spouse’s proportionate share in profits of closely held corporation is rebuttably presumed available to spouse and includable in gross income. Perlenfein and Perlenfein, 316 Or 16, 848 P2d 604 (1993)

 

      25.280

 

NOTES OF DECISIONS

 

      Court may find that presumptive amount is unjust or inappropriate but determination must be based on evidence in record. Christopherson and Christopherson, 112 Or App 166, 827 P2d 950 (1992)

 

      Consideration of future income potential was improper in determining whether presumption of correctness was rebutted. Moore and Moore, 112 Or App 503, 829 P2d 704 (1992); Wesley and Wesley, 125 Or App 128, 865 P2d 432 (1993)

 

      Educational expenses of child may justify deviation from presumed amount of child support provided by this section and relevant guidelines, but those expenses are part of and not in addition to child support obligation and are subject to statutory limitations of such obligation. Wiebe and Wiebe, 113 Or App 535, 833 P2d 333 (1992)

 

      Where child receives social security disability payments, payments are not income attributable to parent but may affect need of child and render presumptive support guideline amount inappropriate. Lawhorn and Lawhorn, 119 Or App 225, 850 P2d 1126 (1993); Krompel and Krompel, 129 Or App 394, 879 P2d 223 (1994)

 

      Support beyond guidelines cap must primarily be based on child’s needs, not available resources. Stringer v. Brandt, 128 Or App 502, 877 P2d 100 (1994)

 

      Guideline amount is amount to actually be paid and is not subject to being reduced by other provisions of judgment. Rossi and Rossi, 128 Or App 536, 876 P2d 820 (1994)

 

      Court is not limited to consideration of listed rebuttal criteria as basis for departing from child support guideline. Petersen and Petersen, 132 Or App 190, 888 P2d 23 (1994); Grile and Grile, 138 Or App 630, 909 P2d 1248 (1996); In the Matter of Mock and Sceva, 143 Or App 362, 923 P2d 1310 (1996)

 

      Neither disparity of income between parties nor joint legal custody of child is valid basis for rebutting presumptive support amount. Larkin and Larkin, 146 Or App 310, 932 P2d 115 (1997)

 

      Court is not required to consider effect of child’s income on child’s needs when setting support amount in accordance with guidelines. Redler and Redler, 153 Or App 135, 956 P2d 232 (1998), aff’d 330 Or 51, 996 P2d 963 (2000)

 

      Where marital assets are placed in trust for children, trust assets do not affect child support obligation until assets are distributed to children. Butler and Butler, 160 Or App 314, 981 P2d 389 (1999)

 

LAW REVIEW CITATIONS: 69 OLR 708 (1990)

 

      25.285

 

      See annotations under ORS 25.287.

 

      25.287

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 25.285)

 

      Provision allowing modification of child support without showing of substantial change of circumstances for parents whose support obligations are subject to support enforcement services did not violate equal protection rights under Article I, section 20, because classification between them and other parents was created by statute itself and intrinsic to regulation statutes are designed to achieve. Thompson and Thompson, 110 Or App 462, 823 P2d 1001 (1992), Sup Ct review denied

 

In general

      Court may consider stipulations in determining whether support guidelines amount is just and appropriate. Petersen and Petersen, 132 Or App 190, 888 P2d 23 (1994); Grile and Grile, 138 Or App 630, 909 P2d 1248 (1996)

 

      25.414

(formerly 25.351)

 

NOTES OF DECISIONS

 

      Where debtor has two wage sources and one source withholds maximum amount for payment of current child support and arrearage, wages from nonwithholding source are subject to garnishment under ORS 18.635 for collection of remaining arrearage. Morrow and Morrow, 191 Or App 354, 82 P3d 647 (2004)

 

      25.424

 

NOTES OF DECISIONS

 

      Where employer withholds child support from obligor’s pay, but fails to forward payment to state in timely manner, obligor does not have cause of action against employer for damages arising from untimely payment. Arvidson v. Kurahashi & Associates, Inc., 217 Or App 74, 175 P3d 979 (2007), Sup Ct review denied