Chapter 107

 

      Chapter 107

 

NOTES OF DECISIONS

 

      Trial court has authority to establish liquidated sum as amount owed by spouse under settlement agreement. Horner and Horner, 119 Or App 112, 849 P2d 560 (1993)

 

ATTY. GEN. OPINIONS: Emergency or necessity as the only grounds for waiver of 90-day period, (1971) Vol 35, p 982

 

LAW REVIEW CITATIONS: 55 OLR 267-277 (1976); 27 WLR 51 (1991)

 

      107.025

 

NOTES OF DECISIONS

 

      Agreement of parties that difference is irreconcilable is not required. Dunn and Dunn, 13 Or App 497, 511 P2d 427 (1973)

 

      Test is whether difference reasonably appears to court to be irreconcilable in mind of petitioner and whether breakdown is irremediable. Dunn and Dunn, 13 Or App 497, 511 P2d 427 (1973)

 

LAW REVIEW CITATIONS: 51 OLR 715-726 (1972)

 

      107.036

 

NOTES OF DECISIONS

 

      Legislative intent is that in dividing, awarding or distributing property of parties, court cannot consider evidence of “fault” used to establish fraud for annulment of marriage. DeVille and DeVille, 45 Or App 53, 607 P2d 228 (1980)

 

LAW REVIEW CITATIONS: 51 OLR 718, 721, 723, 724 (1972); 10 WLJ 118 (1973)

 

      107.046

 

ATTY. GEN. OPINIONS: Duty to pay district attorney appearance fee as mandatory under “no fault divorce” law, (1971) Vol 35, p 808

 

      107.055

 

NOTES OF DECISIONS

 

      Legislative intent expressed in this section dictated against application of the “clean hands” doctrine as a bar to petitioner’s suit for dissolution. Holford and Holford, 19 Or App 508, 528 P2d 119 (1974)

 

      Filing general appearance does not satisfy ORCP 68C pleading requirement for attorney fees. Ornelas and Ornelas, 217 Or App 124, 174 P3d 1077 (2007)

 

LAW REVIEW CITATIONS: 51 OLR 718 (1972)

 

      107.065

 

NOTE: Repealed as of January 1, 2012

 

ATTY. GEN. OPINIONS: Emergency or necessity as the only grounds for waiver of 90-day period, (1971) Vol 35, p 982

 

      107.075

 

      See also annotations under ORS 107.230 in permanent edition.

 

NOTES OF DECISIONS

 

      Status as nonimmigrant alien does not prevent establishment of domicile in Oregon for purposes of dissolution of marriage. Pirouzkar and Pirouzkar, 51 Or App 519, 626 P2d 380 (1981)

 

      Where court has both subject matter and personal jurisdiction, procedural error does not divest court of jurisdiction so as to render order void and subject to collateral attack. Watanabe and Watanabe, 140 Or App 85, 914 P2d 701 (1996), Sup Ct review denied

 

      107.085

 

LAW REVIEW CITATIONS: 51 OLR 718, 721 (1972)

 

      107.095

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 107.250)

 

      Since no temporary order granting fees to plaintiff had been made prior to defendant’s death, the court’s jurisdiction ended and it could not thereafter award attorney fees. Drucker v. Drucker, 7 Or App 85, 488 P2d 1377 (1971), Sup Ct review denied

 

In general

      Each payment under temporary support order becomes judgment upon due date if unpaid and cannot be canceled by court in determining property division. Alls and Alls, 137 Or App 32, 902 P2d 1204 (1995)

 

      Rule against court forgiveness of temporary support arrearage applies to arrearages in noncash obligations. Binnell and Binnell, 153 Or App 204, 956 P2d 1003 (1998)

 

      Support arrearage amount may be made setoff against property division equalizing judgment. Binnell and Binnell, 153 Or App 204, 956 P2d 1003 (1998)

 

ATTY. GEN. OPINIONS

 

In general

      Legal effect of pendente lite order after final divorce decree, (1975) Vol 37, p 698

 

      107.101

 

LAW REVIEW CITATIONS: 35 WLR 523, 585, 643 (1999)

 

      107.102

 

NOTES OF DECISIONS

 

      Permissibility of change in parenting plan depends solely upon proof that proposed change from status quo better serves interests of child. Cooksey and Cooksey, 203 Or App 157, 125 P3d 57 (2005)

 

LAW REVIEW CITATIONS: 35 WLR 523, 643 (1999)

 

      107.104

 

NOTES OF DECISIONS

 

      Characterization of amount as spousal support in marital settlement agreement incorporated in dissolution judgment is not binding on bankruptcy court. In re Jennings, 306 B.R. 672 (Bkrtcy. D. Or. 2004)

 

      Court-approved marital settlement agreement that waives right of party to seek modification does not contravene public policy or impermissibly interfere with court jurisdiction under ORS 107.135. McInnis and McInnis, 199 Or App 223, 110 P3d 639 (2005)

 

      Where settlement agreement does not violate law or clearly contravene public policy, agreement supersedes authority of court under ORS 107.105 to determine just and proper disposition of marital property. Patterson and Kanaga, 206 Or App 341, 136 P3d 1177 (2006)

 

      Limitation on court’s authority to award support in first instance does not establish that agreement providing for greater support violates law or contravenes public policy. Reeves and Elliott, 237 Or App 126, 238 P3d 427 (2010)

 

      Definition in agreement in stipulated judgment that varies from statutory definition does not establish that settlement violates law or contravenes public policy. Reeves and Elliott, 237 Or App 126, 238 P3d 427 (2010)

 

      ORS 107.135 authorizes awarding attorney fees to party seeking enforcement of stipulated terms of original dissolution judgment under this section where enforcement efforts are reasonably and materially related to resolution of modification under ORS 107.135. Berry and Huffman, 247 Or App 651, 271 P3d 128 (2012)

 

      Although section allows court to impose remedies in general, it does not speci fically authorize award of attorney fees or state that attorney fee award is available remedy, and does not itself create a right to fees. Berry and Huffman, 251 Or App 744, 284 P3d 1202 (2012)

 

      Policy encouraging settlement does not limit court’s ability to modify terms of stipulated dissolution judgment only in those circumstances when terms of judgment violate law or clearly contravene public policy. Dow and Dow, 256 Or App 454, 302 P3d 1188 (2013)

 

LAW REVIEW CITATIONS: 43 WLR 421 (2007)

 

      107.105

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 107.100)

 

      The court could consider the amount of the tax the wife would have to pay in setting alimony and maintenance for a child but the court should have fixed the amount instead of directing the husband to pay the income tax. Thomason v. Thomason, 6 Or App 341, 487 P2d 1397 (1971)

 

      Payments arising from service in the Armed Forces, or property acquired with such payments, though exempt as to the claims of ordinary creditors, were not exempt from a claim for alimony, support or maintenance, or from distribution in a divorce action. Gerold v. Gerold, 6 Or App 353, 488 P2d 294 (1971)

 

      Court may award custody in manner that divides children from each other if compelling circumstances show that division is in best interest of children. Amundson v. Amundson, 7 Or App 33, 489 P2d 983 (1971)

 

      The mere fact that one spouse brings more assets to a marriage than the other does not entitle that spouse to recover the value of those assets before division of property. Hardenburger v. Hardenburger, 18 Or App 267, 524 P2d 179 (1974)

 

In general

 

      “Just and proper” means viewed in the light of the existing circumstances. Apling and Apling, 26 Or App 367, 552 P2d 567 (1976), Sup Ct review denied

 

      This section does not authorize court to place marital assets of wife in trust where there are no children to be cared for. Tharp and Tharp, 39 Or App 565, 592 P2d 1079 (1979)

 

      Trial court has authority to determine which parent is entitled to claim children as dependent for tax purposes. Connelly and Connelly, 90 Or App 484, 752 P2d 1258 (1988)

 

      Dissolution judgment does not constitute contract. Dee and Dee, 96 Or App 252, 772 P2d 444 (1989)

 

      Where court in another state awards status-only dissolution during pendency of Oregon dissolution case, ORS 107.115 provides Oregon court subject matter jurisdiction to decide nonstatus issues, such as property and support, and to grant any supplemental relief that is available under this section. Anderson and Anderson, 102 Or App 169, 793 P2d 1378 (1990), Sup Ct review denied; Weller v. Weller, 164 Or App 25, 988 P2d 921 (1999)

 

      Although couples who choose to live together without marriage also choose not to avail themselves of statutory presumptions of equal contribution provided by this section, equitable resolution to proceedings arising from breakdown of nonmarital domestic relationship cannot be reached without consideration of its unique and symbiotic nature. Shuraleff v. Donnelly, 108 Or App 707, 817 P2d 764 (1991)

 

      Decree of “marital annulment” includes termination of both void and voidable marriages. Denis and Denis, 153 Or App 655, 958 P2d 199 (1998)

 

      Court may not approve stipulation that deprives court of authority to modify award. Heinonen and Heinonen, 171 Or App 37, 14 P3d 96 (2000)

 

      Where parties to marital dissolution entered into mediated settlement agreement that parties then contest because one party learned other party had not fully disclosed assets prior to entering into agreement, court must ensure full disclosure of all assets before court enters judgement to enforce contested agreement. Pollock and Pollock, 357 Or 575, 355 P3d 117 (2015)

 

Custody

 

      In determining the best interests of the child the court was required to consider all relevant factors, which generally included: 1) The conduct of the parties; 2) the moral, emotional and physical fitness of the parties; 3) the comparative physical environments; 4) the emotional ties of the child to other family members; 5) the interest of the parties in, and attitude toward the child; 6) the age, sex, and health of the child; 7) the desirability of continuing an existing relationship and environment; and 8) the preference of the child. Ellenwood and Ellenwood, 20 Or App 486, 532 P2d 259 (1975)

 

      Where neither party seeks joint custody, order compelling joint custody is inappropriate. Handy and Handy, 44 Or App 225, 605 P2d 738 (1980)

 

Award for maintenance of minor children

 

      A divorce court is without power to provide for the support of, or aid to, an adult child of the parties, or to continue a provision for support after a child attains his majority. Langnese and Langnese, 13 Or App 88, 508 P2d 831 (1973)

 

      The court may require life insurance as part of a property division or a form of child support if the required coverage does not extend beyond the age limitations for the children set forth in this section and ORS 107.108. Miller and Miller, 21 Or App 253, 534 P2d 512 (1975)

 

      In determining the noncustodial parent’s “just and proper” contribution, the court should balance the needs of the children against the financial conditions and capabilities of both the noncustodial and custodial parents. Cavilee and Cavilee, 21 Or App 506, 535 P2d 774 (1975)

 

      “Minor children of the marriage” includes children conceived during marriage yet born after dissolution, and thus it was improper for court to limit father’s financial responsibility for unborn child to costs of abortion if mother chose to have abortion. Godwin and Godwin, 30 Or App 425, 567 P2d 144 (1977)

 

      Court established formula with modifying factors to aid lower courts in determination of “just and proper” amount of child support in cases where both parties have substantial resources. Smith v. Smith, 290 Or 675, 626 P2d 342 (1981)

 

      Social security payments for benefit of child resulting from father’s eligibility and paid directly to mother should not have been credited to father’s support obligation. Cope and Cope, 291 Or 412, 631 P2d 781 (1981)

 

      Authority to create trusts conferred on trial court by this section relates only to provision of support for children entitled to support. Crowley and Crowley, 82 Or App 27, 727 P2d 141 (1986)

 

      Application of formula set forth in Smith v. Smith, 290 Or 675 (1981), is inappropriate where one parent lacks sufficient income to both support self and pay support. Martin and Ives, 85 Or App 392, 736 P2d 613 (1987)

 

      Where legislature is silent as to intent in applying current version of this statute which took effect on October 3, 1989, Court of Appeals does not apply new child support guidelines on de novo review to judgment entered before that date. Butcher and Butcher, 100 Or App 476, 786 P2d 1293 (1990), Sup Ct review denied

 

      Court may consider future earning capacity in making award of child support. Harper and Harper, 122 Or App 9, 856 P2d 334 (1993), Sup Ct review denied

 

      Trial court is not required to consider potential tax consequences of disability insurance benefits or to adjust tax exempt income upward in determining gross income to calculate child support award. Hoag and Hoag, 122 Or App 230, 857 P2d 208 (1993)

 

      Court was not limited to criteria enumerated under ORS 25.280 as basis for departing from child support guidelines. Petersen and Petersen, 132 Or App 190, 888 P2d 23 (1994); Grile and Grile, 138 Or App 630, 909 P2d 1248 (1996)

 

      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)

 

Spousal support

 

      In motion for modification, amount of increase is governed primarily by needs of supported spouse and ability of payor spouse to pay. Wells v. Wells, 15 Or App 507, 516 P2d 480 (1973)

 

      Employability of dependent spouse includes consideration of education, training, experience, age, health, capacity and custody of small children. Kitson and Kitson, 17 Or App 648, 575 P2d 575 (1974), Sup Ct review denied

 

      In determining the duration that one party should be ordered to contribute to support of the other party, the most significant factor is whether the party to be supported is employable at an income not overly disproportionate from the standard of living he or she enjoyed during the marriage. Kitson and Kitson, 17 Or App 648, 575 P2d 575 (1974), Sup Ct review denied

 

      In determining spousal support amount, considerations include financial condition of parties, nature and value of respective properties, contribution of each to property held by entirety, duration of marriage, payor spouse income, earning capacity, age, health and ability to labor, and dependent spouse age, health, station and ability to earn living. Dodge and Dodge, 19 Or App 363, 527 P2d 750 (1974)

 

      Trial court had authority to give spouse choice between receiving money as spousal support or as increased child support. Duvall and Duvall, 26 Or App 99, 551 P2d 1319 (1976)

 

      Award of modified support retroactive to date of motion for modification is discretionary. Bloch v. Bloch, 26 Or App 245, 552 P2d 278 (1976)

 

      Court did not have authority to modify judgment that was result of pendente lite award of temporary support under ORS 107.095. Derby and Derby, 31 Or App 803, 571 P2d 562 (1977), Sup Ct review denied, modified 31 Or App 1333, 572 P2d 1080 (1977)

 

      Except in special instances, it is improper for dissolution decree to provide for automatic termination of spousal support upon remarriage; includes comprehensive summary of policy with respect to awards of spousal support. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), modified 280 Or 769, 572 P2d 1320 (1977)

 

      In any decree providing for spousal support, decree should enjoin upon supported spouse duty to advise other party if supported spouse remarries. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), modified 280 Or 769, 572 P2d 1320 (1977)

 

      Duration of support must be based on need and ability to pay for period that furthers ending of dependency relationship if possible and that provides dependent spouse with opportunity to increase earning capacity. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), modified 280 Or 769, 572 P2d 1320 (1977)

 

      Where sufficient assets are available, amount of spousal support is not limited to needs of dependent spouse. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), modified 280 Or 769, 572 P2d 1320 (1977)

 

      Where wife gave up secure teaching position to follow husband to Oregon and after separation was unable because of age and lack of other skills to find regular employment, she was properly awarded permanent spousal support though parties were married only four years. McLean and McLean, 36 Or App 809, 585 P2d 750 (1978)

 

      Obligation to make payments for spousal support terminates at death of obligor unless contrary intention clearly appears in property settlement agreement incorporated into dissolution decree. Dement v. Dement, 47 Or App 1047, 615 P2d 1136 (1980); Hendricks v. Hendricks, 109 Or App 80, 817 P2d 1339 (1991), Sup Ct review denied

 

      Retroactive spousal support is not amount “reasonably necessary to enable such party to prosecute...suit.” Olson and Olson, 52 Or App 695, 629 P2d 834 (1981)

 

      Spousal support awarded due to inability of court to equitably divide property is not subject to usual considerations for determining amount and duration. Haguewood and Haguewood, 292 Or 197, 638 P2d 1135 (1981); Madden and Madden, 114 Or App 319, 836 P2d 1349 (1992)

 

      Child support and spousal support are separate provisions of dissolution decree, but are not independent of each other; determination of one requires consideration of other. Gurr and Gurr, 57 Or App 1, 643 P2d 1282 (1982)

 

      Spousal support is not justified to compensate for personal injury suffered during marriage at hands of other spouse and injuries to wife were relevant only insofar as they affected her employability or need for support. Koch and Koch, 58 Or App 252, 648 P2d 406 (1982)

 

      Where husband appealed support awards and interest rate and, while appeal was pending, moved trial court to modify decree as to support payments, motion in trial court was nullity because trial court no longer had jurisdiction in case; overruling Wilson v. Wilson, 242 Or 201, 407 P2d 898, 408 P2d 940 (1965). Nickerson and Nickerson, 296 Or 516, 678 P2d 730 (1984)

 

      Remarriage of supported spouse does not terminate support obligation but may constitute substantial change in circumstances justifying termination. Bates and Bates, 303 Or 40, 733 P2d 1363 (1987)

 

      Where marriage was relatively short but evidence shows that wife’s employment skills and her ability to maintain her current earnings are deteriorating, spousal support to enable wife to retrain herself and then maintain standard of living “not overly disproportionate to that enjoyed during marriage” is appropriate. Holt and Holt, 97 Or App 192, 776 P2d 7 (1989)

 

      Burden to show that remarriage of supported spouse is substantial change of circumstances remains with petitioning spouse. Fouts and Fouts, 98 Or App 483, 779 P2d 145 (1989), Sup Ct review denied

 

      Modification of spousal support is properly based only on party’s present or future ascertainable ability to pay. Curran and Curran, 100 Or App 330, 786 P2d 205 (1990)

 

      Where dissolution of marriage was delayed following separation, decision whether to award spousal support depended on circumstances existing at time of dissolution, not at time of separation. Howard and Howard, 103 Or App 171, 797 P2d 369 (1990)

 

      Because shareholders of corporation and corporation were not parties to dissolution proceeding, shareholder and corporation were not bound to guarantee payments to spouse. Waker and Waker, 114 Or App 255, 834 P2d 522 (1992), Sup Ct review denied

 

      Spousal support of $200 per month for two years was proper considering financial obligations to dependents and responsibility for financial obligations from marriage. Robertson and Robertson, 114 Or App 481, 836 P2d 149 (1992)

 

      Payment of spousal support pending appeal does not constitute acquiescence in judgment that precludes review. Zeedyk and Swanstrom, 120 Or App 6, 852 P2d 210 (1993)

 

      Court may disregard earnings and base award on future income where amount of future income is reasonably determinable. Furlong and Furlong, 120 Or App 105, 852 P2d 233 (1993)

 

      Where disability insurance was intended only to replace lost income, benefits are not marital asset. Hoag and Hoag, 122 Or App 230, 857 P2d 208 (1993)

 

      Court may award spousal support upon termination of void marriage. Denis and Denis, 153 Or App 655, 958 P2d 199 (1998)

 

      Prenuptial agreement waiving spousal support is enforceable unless enforcement deprives spouse of necessary support that cannot be obtained elsewhere. Bridge and Bridge, 166 Or App 458, 998 P2d 780 (2000), Sup Ct review denied

 

      Spouse’s contribution to education, training, vocational skills, career or earning capacity of other spouse need not have resulted in actual increase in income to qualify for compensatory spousal support award. Austin and Austin, 191 Or App 307, 82 P3d 170 (2003)

 

      Characterization of amount as spousal support in marital settlement agreement incorporated in dissolution judgment is not binding on bankruptcy court. In re Jennings, 306 B.R. 672 (Bkrtcy. D. Or. 2004)

 

      Consideration of “other factors” in awarding compensatory spousal support does not include consideration of payor spouse’s misbehavior that is unrelated to determining extent of supported spouse’s contributions to education, training, vocational skills, career or earning capacity of payor spouse. Garza and Garza, 201 Or App 318, 118 P3d 824 (2005)

 

      Requirement that court awarding spousal support consider duration of marriage does not prevent court from also considering duration of premarital cohabitation. Lind and Lind, 207 Or App 56, 139 P3d 1032 (2006)

 

      Court may issue order providing for contribution in gross or contribution in installments to be alternative form of contribution that takes effect upon occurrence of contingency. McLauchlan and McLauchlan, 227 Or App 476, 206 P3d 622 (2009), Sup Ct review denied

 

      Contributions of spouse are significant if they are meaningful and are likely to have influence and effect. Harris and Harris, 349 Or 393, 244 P3d 801 (2010)

 

Costs and attorney fees

 

      An award of attorney fees will only be modified on a showing of abuse of discretion. Erpelding v. Erpelding, 6 Or App 333, 487 P2d 1406 (1971)

 

      Death of party deprived court of jurisdiction to award attorney fees. Drucker v. Drucker, 7 Or App 85, 488 P2d 1377 (1971), Sup Ct review denied

 

      Court may award judgment for cost of expert witness necessary to value marital assets as additional costs and expenses reasonably and necessarily incurred in suit or defense. Cushman and Cushman, 20 Or App 317, 531 P2d 911 (1975); Fowler and Fowler, 52 Or App 223, 627 P2d 1304 (1981)

 

      Wife was entitled to a reasonable fee which reflected the extra expense incurred as a result of husband’s efforts to frustrate the attorney’s efforts to discover his net worth. Hinsdale and Hinsdale, 20 Or App 638, 532 P2d 1137 (1975), Sup Ct review denied

 

      Because attorney fees are required to be judgment in favor of spouse, court could not order specific property to be sold to pay fees. Paget and Paget, 36 Or App 595, 585 P2d 38 (1978), Sup Ct review denied

 

      Where provision for attorney fees to prevailing party in action to enforce agreement was silent as to statutory right to attorney fees, trial court had authority to make award to wife not subject to terms of agreement. Purcell and Purcell, 99 Or App 668, 783 P2d 1038 (1989)

 

      Award of “additional costs and expenses” is subject to ORCP 68 prohibition against awarding deposition costs. Benson and Youngblutt, 141 Or App 458, 919 P2d 496 (1996), Sup Ct review denied

 

      Party intervening in dissolution proceeding is subject to payment of costs, disbursements and attorney fees awarded on appeal. Holm and Holm, 323 Or 581, 919 P2d 1164 (1996)

 

      Attorney fees are not available in action dissolving nonmarital domestic partnership. Stufflebean v. Brown, 147 Or App 347, 935 P2d 482 (1997)

 

      Proposed stipulated dissolution judgment does not make award of attorney fees subject to ORCP 54E determination of whether party has improved position. Saunders and Saunders, 158 Or App 601, 975 P2d 927 (1999)

 

      Recipient of subpoena is not “party” to whom court may award costs in dissolution proceedings unless recipient moves to intervene at trial or on appeal. Githens and Githens, 230 Or App 586, 216 P3d 904 (2009), Sup Ct review denied

 

      Denial of petition for review by Supreme Court is not matter on appeal for which appellate court may order payment of attorney fees. Bolte and Bolte, 349 Or 289, 243 P3d 1187 (2010)

 

      This section does not authorize awarding attorney fees to party seeking enforcement of stipulated terms of dissolution judgment under ORS 107.104 unless attorney fees are required by judgment. Berry and Huffman, 247 Or App 651, 271 P3d 128 (2012)

 

Judgments; contempt and appeal

 

      Judgment for unpaid temporary support could not be entered absent finding of contempt. Lockard and Lockard, 108 Or App 388, 816 P2d 632 (1991), Sup Ct review denied

 

      Court’s authority to order temporary relief does not supersede provisions governing setting of undertaking upon appeal. Benson and Benson, 132 Or App 297, 888 P2d 96 (1995)

 

      Post-judgment order for execution of money judgment is appealable order that is part of suit for dissolution of marriage. Maresh and Maresh, 193 Or App 69, 87 P3d 1154 (2004)

 

Disposition of property

 

      Asset held by party for benefit of children was not property includable in that party’s share of property division. Bates and Bates, 17 Or App 641, 523 P2d 579 (1974)

 

      Temporary use of commerical property is valuable asset attributable at fair market rental value. Marrs and Marrs, 20 Or App 320, 531 P2d 713 (1975)

 

      Where litigants seeking to terminate a financially disastrous marriage of short duration have comparable ability to provide for their own support after dissolution, usually each party should be awarded properties roughly in proportion to their respective contributions. Nolan and Nolan, 20 Or App 432, 532 P2d 35 (1975), Sup Ct review denied

 

      If the provisions of a settlement agreement relate to the division of property, even though it may be through the means of periodic future payment of money, they are invulnerable to change in the event of changed circumstances. Stein v. Stein, 21 Or App 195, 534 P2d 222 (1975)

 

      The court may require life insurance as part of property division or a form of child support if the required coverage does not extend beyond the age limitations for the children set forth in this section and ORS 107.108. Miller and Miller, 21 Or App 253, 534 P2d 512 (1975)

 

      Industrial accident award in settlement of all claims by parties was properly considered marital asset in division of property. Cavilee and Cavilee, 21 Or App 506, 535 P2d 774 (1975); Pugh and Pugh, 138 Or App 63, 906 P2d 829 (1995), Sup Ct review denied

 

      Dissolution decree may not provide for forced sale of property in lieu of partition. Teeter and Teeter, 26 Or App 535, 552 P2d 1338 (1976)

 

      Although trust interests, whether vested or contingent, should be considered when making equitable distribution of parties’ assets where there are no special problems to be solved, it is reasonable to permit parties to retain their respective trusts. Walker and Walker, 27 Or App 693, 557 P2d 36 (1976)

 

      Goodwill may be properly considered when an interest in a corporation is among the marital assets to be divided. Goger and Goger, 27 Or App 729, 557 P2d 46 (1976)

 

      Inherited property is part of marital estate under this section, with division determined by what is just and proper in all circumstances. Beers and Beers, 31 Or App 1273, 572 P2d 364 (1977); Pullen and Pullen, 38 Or App 137, 589 P2d 1145 (1979), Sup Ct review denied; Bodeen v. Bodeen, 43 Or App 141, 602 P2d 336 (1979); Pierson and Pierson, 294 Or 117, 653 P2d 1258 (1982)

 

      Where parties were divorced briefly and remarried, property division based on total marriage time was proper. Flowers and Flowers, 34 Or App 211, 577 P2d 1369 (1978)

 

      Inheritance received after dissolution proceeding for long-term marriage had commenced was properly considered in property distribution. Harrington and Harrington, 57 Or App 316, 644 P2d 620 (1982); Bekooy and Bekooy, 118 Or App 227, 846 P2d 1183 (1993)

 

      Property acquired after separation through exercise of option earned during marriage is marital asset. Clapperton and Clapperton, 58 Or App 577, 649 P2d 620 (1982)

 

      There is nothing in partition statutes, ORS 105.205 to 105.405, that precludes action from being brought under this section and then subsequent one from being brought under partition statutes where res judicata does not bar second action. Hellesvig v. Hellesvig, 59 Or App 356, 650 P2d 1072 (1982), aff’d 294 Or 769, 622 P2d 709 (1983)

 

      Upon filing of petition, property that is acquired during marriage other than by gift or inheritance and that is held in name of one party is converted to co-ownership. Engle and Engle, 293 Or 207, 646 P2d 20 (1982)

 

      Where marriage terminates before financial affairs of parties are commingled, just and proper division of non-appreciated assets is in nature of rescission. Jenks and Jenks, 294 Or 236, 656 P2d 286 (1982); Miller and Miller, 294 Or 660, 661 P2d 1361 (1983)

 

      Where property was acquired by gift and there was no finding that gift was related to spouse’s efforts or that spouse was object of donative intent, presumption of equal contribution to acquisition of property is overcome. Jenks and Jenks, 294 Or 236, 656 P2d 286 (1982); Helm and Helm, 107 Or App 556, 813 P2d 52 (1991); Wolhaupter-Heinzel v. Heinzel, 108 Or App 514, 816 P2d 672 (1991), Sup Ct review denied

 

      Where assets of parties were not sufficient to support child, requirement of “just and proper” division overrides policy of placing parties in relative pre-marriage position. Seefeld and Seefeld, 294 Or 345, 657 P2d 201 (1982)

 

      Where recipient of trust income and spouse did not contribute to creation of trust, presumption of equal contribution to marital asset is rebutted and spouse is not entitled to trust income; however, trust income may be considered in division of assets. Graff and Graff, 71 Or App 194, 691 P2d 520 (1984)

 

      Value of pension as marital asset is its actuarial present value. Phipps and Phipps, 73 Or App 100, 698 P2d 52 (1985)

 

      Value of any social security benefits should not be considered in property division. Swan and Swan, 301 Or 167, 720 P2d 747 (1986). But see Herald and Steadman, 256 Or App 354, 303 P3d 341 (2013), aff’d 355 Or 104, 322 P3d 546 (2014)

      Nature of asset growth does not affect presumption of equal contribution. Crislip and Crislip, 86 Or App 146, 738 P2d 602 (1987)

 

      Separation does not affect presumption of equal contribution to asset growth. Crislip and Crislip, 86 Or App 146, 738 P2d 602 (1987)

 

      Consideration of reasonably determinable future tax effects on value of asset is proper. Alexander and Alexander, 87 Or App 259, 742 P2d 63 (1987); Follansbee and Ackerman, 115 Or App 39, 836 P2d 763 (1992)

 

      Homemaker spouse who works may not use presumption of equal contribution by homemaker in combination with work income to establish contribution exceeding 50 percent of marital assets. Stice and Stice, 308 Or 316, 779 P2d 1020 (1989)

 

      Marital assets transferred without consent of other spouse may be considered in determining just and proper property division. Howard and Howard, 103 Or App 342, 798 P2d 683 (1990)

 

      Where immediate asset division would produce adverse results, division of asset proceeds on “if and when” basis was just and proper. Howard and Howard, 103 Or App 342, 798 P2d 683 (1990)

 

      Failure to assess interest on judgment representing just and equitable share of marital property constituted improper reduction in settlement share. Schmidt and Schmidt, 108 Or App 110, 813 P2d 1129 (1991)

 

      Prior proceeding under this section is not bar to proceeding under ORS 105.205. Weber v. Galton, 111 Or App 33, 824 P2d 1166 (1992), Sup Ct review denied

 

      In long-term marriage where inheriting spouse gave assurances that anticipated inheritance made saving for retirement unnecessary and non-inheriting spouse relied on assurances, inheritance was properly included in marital estate even though inheritance interest became possessory after dissolution proceeding was initiated. Taylor and Taylor, 121 Or App 635, 856 P2d 325 (1993), on reconsideration 124 Or App 581, 863 P2d 473 (1993), Sup Ct review denied

 

      Where value of retirement plan was based on employee contributions rather than length of service, court correctly refused to apply time rule in dividing pension, distinguishingRichardson and Richardson, 307 Or 370, 769 P2d 179 (1989). Hester and Hester, 122 Or App 147, 856 P2d 1048 (1993)

 

      Unequal division of property based on existence of unvested pension was proper. Risch and Risch, 124 Or App 107, 860 P2d 891 (1993)

 

      Where contribution of each spouse to long term marriage was not negligible, greater burden carried by one spouse during marriage does not overcome presumption of equal contribution. Nixon and Nixon, 126 Or App 381, 868 P2d 1352 (1994)

 

      Finding of equal contribution may apply to some specific marital assets and not apply to other specific marital assets. Hadden and Hadden, 127 Or App 483, 873 P2d 394 (1994)

 

      Fact that pension is in payout status does not prohibit court from assigning value to pension account as property asset. Colling and Colling, 139 Or App 16, 910 P2d 1165 (1996), Sup Ct review denied

 

      Proper procedure for valuing defined-benefit pension is to multiply present value of pension by ratio of marriage years to employment years. Caudill and Caudill, 139 Or App 479, 912 P2d 915 (1996)

 

      Application of marketability discount to minority share in asset is not proper where share is unlikely to be sold on open market independently of entire asset. Batt and Batt, 149 Or App 517, 945 P2d 517 (1997), Sup Ct review denied

 

      Interest in defined-value benefit plan as marital asset is determined by multiplying amount of money required to purchase equivalent annuity by length of marriage and dividing by required service period. Reich and Reich, 150 Or App 311, 946 P2d 319 (1997)

 

      Support arrearage amount may be made setoff against property division equalizing judgment. Binnell and Binnell, 153 Or App 204, 956 P2d 1003 (1998)

 

      Court may not direct behavior of party as trustee of trust, but may award spouse judgment that accounts for value of property held in trust. Jones and Jones, 158 Or App 41, 973 P2d 361 (1999), on reconsideration 159 Or App 377, 981 P2d 338 (1999), Sup Ct review denied

 

      Where husband and wife are still cohabiting at time money is commingled with other marital assets, presumption arises that both parties benefited equally from commingling. Butler and Butler, 160 Or App 314, 981 P2d 389 (1999)

 

      Appreciation in value of property brought into marriage is property subject to presumption of equal contribution. Massee and Massee, 328 Or 195, 970 P2d 1203 (1999)

 

      Transfer resulting from division of marital property by way of noncollusive decree of dissolution is not subject to bankruptcy restrictions on preferential transfers. In re Parker, 241 B.R. 722 (Bkrtcy. D. Or. 1999)

 

      Death of party prior to entry of dissolution decree deprives court of jurisdiction over property division issues. Trotts and Trotts, 170 Or App 714, 13 P3d 1035 (2000)

 

      Voluntary separation incentive paid by military is equivalent to retirement pay from pension. Menard and Menard, 180 Or App 181, 42 P3d 359 (2002)

 

      Lien created by property division judgment is exception to ORS 18.395 homestead exemption from sale on execution. Maresh and Maresh, 190 Or App 228, 78 P3d 157 (2003), Sup Ct review denied

 

      Separately acquired asset may be included in property division despite ability to identify source of asset if commingling of asset evidences owner intent that asset be joint property of marital estate. Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004); Tsukamaki and Tsukamaki, 199 Or App 577, 112 P3d 416 (2005)

 

      For education or training to result in enhanced earning capacity under pre-1999 version of statute, education or training must actually result in production of income. Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004)

 

      Intent to make separately acquired asset part of marital estate through commingling does not require that asset be divided equally. Tsukamaki and Tsukamaki, 199 Or App 577, 112 P3d 416 (2005)

 

      Where settlement agreement does not violate law or clearly contravene public policy, agreement supersedes authority of court to determine just and proper disposition of marital property. Patterson and Kanaga, 206 Or App 341, 136 P3d 1177 (2006)

 

      Survivor annuity is property interest in retirement plan subject to valuation and disposition on dissolution. Miller and Garren, 208 Or App 619, 145 P3d 285 (2006)

 

      Contractual right of spouse to possess or dispose of frozen embryos is marital property subject to just and proper disposition by dissolution court. Dahl and Angle, 222 Or App 572, 194 P3d 834 (2008), Sup Ct review denied

 

      Unvested interests, including revocable beneficial interests in trusts, or mere expectancies are not marital property for purposes of division in dissolution proceeding. Githens and Githens, 227 Or App 73, 204 P3d 835 (2009), Sup Ct review denied

 

      Courts must treat retirement accounts as property, not as income streams, even when payments are being made from those accounts to holders of those accounts. Rushby and Rushby, 247 Or App 528, 270 P3d 327 (2011), Sup Ct review denied

 

      Entitlement to social security benefits may be considered in property division. Herald and Steadman, 256 Or App 354, 303 P3d 341 (2013), aff’d 355 Or 104, 322 P3d 546 (2014). But see Swan and Swan, 301 Or 167, 720 P2d 747 (1986)

 

COMPLETED CITATIONS: Emery v. Emery, 5 Or App 133, 481 P2d 656 (1971), Sup Ct review denied; West v. West, 6 Or App 128, 487 P2d 96 (1971); Bohanan v. Bohanan, 6 Or App 141, 487 P2d 113 (1971)

 

ATTY. GEN. OPINIONS

 

In general

      Legal effect of pendente lite order after final divorce decree, (1975) Vol 37, p 698; change of name in public records, (1977) Vol 38, p 945

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 107.100)

      7 WLJ 502 (1971)

 

In general

      51 OLR 715-726 (1972); 53 OLR 204, 205 (1974); 57 OLR 365 (1978); 19 WLR 269 (1983); 24 WLR 464 (1988); 68 OLR 249 (1989); 26 WLR 1020 (1990); 69 OLR 730 (1990); 35 WLR 585, 643 (1999); 78 OLR 735 (1999); 83 OLR 1291 (2004)

 

      107.106

 

NOTES OF DECISIONS

 

      Requirement of provision for “maintenance of insurance . . . for support” provides basis for requiring nonobligor parent to maintain insurance. Willey and Willey, 155 Or App 352, 963 P2d 141 (1998)

 

      107.108

 

NOTES OF DECISIONS

 

      Requirement to maintain life insurance to secure child support payment must be limited to period for which support duty exists. Miller and Miller, 21 Or App 253, 534 P2d 512 (1975)

 

      Absent order in decree requiring payment for schooling, parent had no obligation to support adult child, for this section was not self-executing. Mallory and Mallory, 30 Or App 533, 567 P2d 1051 (1977)

 

      As used in this section, word “decree” encompasses modification of original decree to provide support for “child attending school.” State ex rel Wick v. Wick, 37 Or App 125, 586 P2d 400 (1978)

 

      Although children had not yet reached age 18, support decree could properly be modified to provide for children after reaching age 18 and attending school. Quinby and Quinby, 41 Or App 633, 598 P2d 1284 (1979)

 

      Beginning to attend school is change of circumstances authorizing modification of support decree. Eusterman and Eusterman, 41 Or App 717, 598 P2d 1274 (1979)

 

      Court may modify decree to provide for support at any time prior to child reaching age 21, whether or not support obligation previously lapsed. Eusterman and Eusterman, 41 Or App 717, 598 P2d 1274 (1979)

 

      Substantial change of circumstances is not required for continuation of support obligation. Eusterman and Eusterman, 41 Or App 717, 598 P2d 1274 (1979)

 

      Support obligation applies year-round. Eusterman and Eusterman, 41 Or App 717, 598 P2d 1274 (1979)

 

      Support obligation accrues only if child is attending school, notwithstanding that original support order is not modified. Eusterman and Eusterman, 41 Or App 717, 598 P2d 1274 (1979)

 

      Where dissolution decree was modified to require father to continue child support payments to 18-year-old son as long as son was “child attending school” within meaning of this section, son’s refusal to visit father did not affect father’s support obligation. Smith and Smith, 44 Or App 635, 606 P2d 694 (1980)

 

      In absence of notification to non-custodial parent that child graduating from high school will enter college in the fall, the support obligation for child who reaches 18 ceases during summer months between graduation from high school and entry into college. Riback and Riback, 59 Or App 670, 651 P2d 1089 (1982)

 

      Child attending school could not be party to petition for support where there was no child support order in effect before initiation of proceeding. Thomas and Thomas, 70 Or App 317, 689 P2d 348 (1984)

 

      This section does not authorize trial court to order custodial parent to pay support to child over 18 attending school. Thomas and Thomas, 70 Or App 317, 689 P2d 348 (1984)

 

      Child is not indispensable party where issue involves arrearage of previously accrued child support. Wyllie and Wyllie, 95 Or App 109, 767 P2d 931 (1989), Sup Ct review denied

 

      Child’s involvement in unmarried “adult conjugal relationship with a man” does not disqualify her from receipt of support as child attending school. Sandlin and Sandlin, 113 Or App 48, 831 P2d 64 (1992)

 

      This section does not authorize trial court to order parent to pay college expenses in addition to child support. Wiebe and Wiebe, 113 Or App 535, 833 P2d 333 (1992)

 

      Where education of children was funded by trust consisting of marital property, court was required to provide for distribution of property upon termination of trust. Stephens and Stephens, 125 Or App 25, 865 P2d 374 (1993)

 

      Disparate treatment caused by requiring divorced or separated parent to support child over age 18 when child is attending school has rational basis and thus does not violate state and federal constitutional provisions related to equal protection. Crocker and Crocker, 157 Or App 651, 971 P2d 469 (1998), aff’d 332 Or 42, 22 P3d 759 (2001); McGinley and McGinley, 172 Or App 717, 19 P3d 954 (2001), Sup Ct review denied

 

      Requirement that child attending school maintain grade average applies only for period after court has ordered support. Norton v. MacDonald, 194 Or App 174, 93 P3d 804 (2004)

 

LAW REVIEW CITATIONS: 69 OLR 689 (1990)

 

      107.115

 

NOTES OF DECISIONS

 

      The death of a party after a decree of dissolution does not terminate the right of that party’s personal representative from making a timely appeal of the property division. Libby and Libby, 23 Or App 223, 541 P2d 1077 (1975)

 

      Where court in another state awards status-only dissolution during pendency of Oregon dissolution case, registration of judgment provides Oregon court subject matter jurisdiction to decide nonstatus issues, such as property and support, and to grant any supplemental relief that is available under ORS 107.105. Anderson and Anderson, 102 Or App 169, 793 P2d 1378 (1990), Sup Ct review denied; Weller v. Weller, 164 Or App 25, 988 P2d 921 (1999)

 

 

      107.135

 

NOTES OF DECISIONS

 

In general

 

      Legislative intent was to empower court to provide parental support in modification proceedings for “child attending school” as defined in ORS 107.108. State ex rel Wick v. Wick, 37 Or App 125, 586 P2d 400 (1978)

 

      Accrued child support payments accumulated in trust account were not subject to modification and could not be set aside for misbehavior of custodial parent. Jacot v. Jacot, 37 Or App 803, 588 P2d 122 (1978), Sup Ct review denied

 

      Where case is appealed, substantial change in circumstances is measured from date of trial court hearing appealed from. Lundgren and Lundgren, 39 Or App 135, 591 P2d 763 (1979), Sup Ct review denied

 

      Where trust for minor child was established by third party prior to dissolution, trial court lacked jurisdiction over trust corpus. Melkonian and Melkonian, 55 Or App 586, 639 P2d 662 (1982)

 

      Court retains personal jurisdiction over party to dissolution proceeding notwithstanding change in residency and passage of time. Carlin v. Carlin, 62 Or App 350, 660 P2d 204 (1983)

 

      Nothing in this section authorizes court to order one spouse to pay money necessary to enable other spouse to appear in opposition to motion for modification of decree. Nickerson and Nickerson, 296 Or 516, 678 P2d 730 (1984); Scholze and Scholze, 68 Or App 679, 682 P2d 827 (1984), Sup Ct review denied

 

      Filing of motion in trial court for modification of support order was nullity where appeal was pending; overruling Wilson v. Wilson, 242 Or 201, 407 P2d 898, 408 P2d 940 (1965). Nickerson and Nickerson, 296 Or 516, 678 P2d 730 (1984)

 

      Increase in husband’s income and decrease in his expenses because parties’ children were emancipated, thus ending his duty to support them, taken together, do not constitute substantial change of circumstances. Barron and Barron, 85 Or App 278, 736 P2d 583 (1987)

 

      Adjustment made in modification proceeding must be limited to amount that allows parties to adjust to unanticipated change in circumstances. Maier and Maier, 137 Or App 15, 902 P2d 1214 (1995), Sup Ct review denied

 

      Facts sufficient to show change in circumstance justifying modification for either child support or spousal support payment necessarily show sufficient change to justify modification for both payments. Eidlin and Eidlin, 140 Or App 479, 916 P2d 338 (1996)

 

      Court may not approve stipulation that deprives court of authority to modify award. Heinonen and Heinonen, 171 Or App 37, 14 P3d 96 (2000)

 

      Court may enforce agreement between parents not to seek modification of child support terms in stipulated dissolution judgment unless enforcing agreement would violate law or contravene public policy. Matar and Harake, 353 Or 446, 300 P3d 144 (2013)

 

Custody awards

 

      While immoral conduct standing alone may be insufficient to justify a change in custody, any moral transgressions must be considered together with other relevant factors in determining what is the best interests of the children. Mace v. Mace, 9 Or App 435, 497 P2d 677 (1972)

 

      The party seeking modification must show a change of circumstances sufficient to support a modification and present substantial evidence that the best interest of the children would be served thereby. Rorer v. Rorer, 10 Or App 479, 500 P2d 734 (1972)

 

      Where erroneous order transferring custody is not stayed, parent right to appeal order outweighs avoiding instability caused by retransfer of custody if appeal succeeds. Niedert and Niedert, 28 Or App 309, 559 P2d 515 (1977), Sup Ct review denied

 

      Interference with parental visitation is not change in circumstances justifying change in custody unless interference is severe enough to constitute attempt to alienate child from noncustodial parent. Birge and Birge, 34 Or App 581, 579 P2d 297 (1978); Heuberger and Heuberger, 155 Or App 310, 963 P2d 153 (1998), Sup Ct review denied

 

      Where initial placement was not result of judicial proceeding, substantial change in circumstances is not prerequisite to changing custody based on best interest of child. Whitaker v. Glerup, 35 Or App 201, 580 P2d 1073 (1978)

 

      Court may award temporary custody at time dissolution decree issues where exceptional circumstances make award in best interest of child. Deffenbaugh and Deffenbaugh, 286 Or 759, 596 P2d 966 (1979)

 

      Illegal conduct of parent in absconding with child does not prevent consideration of resulting change in circumstances. State ex rel Johnson v. Bail, 325 Or 392, 938 P2d 209 (1997)

 

      Establishment of substantial change in circumstances is prerequisite to court’s consideration of best interest of child. Francois and Francois, 179 Or App 165, 39 P3d 265 (2002)

 

Maintenance of children

 

      Court granting order of custody retains jurisdiction over questions of custody and support. Asbridge v. Lefever/Gekas, 15 Or App 563, 516 P2d 746 (1973)

 

      Following motion asking decree modification to provide support for oldest child until age 21, memorandum of law which notified father that mother intended to seek modification for three remaining children was akin to amendment of original motion served on father, and father was thus given requisite notice as to three remaining children. Eusterman and Eusterman, 41 Or App 717, 598 P2d 1274 (1979)

 

      Accrued support obligations are not subject to modification. Alspaugh and Alspaugh, 44 Or App 505, 605 P2d 1386 (1980); Eagen and Eagen, 292 Or 492, 640 P2d 1019 (1982); Sheldon and Sheldon, 82 Or App 621, 728 P2d 946 (1986), Sup Ct review denied

 

      Obligor parent could not reduce support obligation by amount of child’s social security benefits without court modification of obligation. Cope and Cope, 49 Or App 301, 619 P2d 883 (1980), aff’d 291 Or 412, 631 P2d 781 (1981)

 

      Where decree provides for support while attending college, lapse while children did not attend college does not prevent resurrection of obligation upon children beginning college. Riback and Riback, 59 Or App 670, 651 P2d 1089 (1982)

 

      This section was not applicable to a determination of whether support obligation had ended because of child’s emancipation as no question of setting aside, altering or modifying a decree was involved. Ellis v. Ellis, 292 Or 502, 640 P2d 1024 (1982)

 

      Noncustodial parent could not offset amount of property division improperly withheld by custodial parent against accrued child support obligation. Bryant and Bryant, 70 Or App 443, 689 P2d 1025 (1984)

 

      Change of circumstances occurs where there is inability or unwillingness to continue to cooperate in arrangement and one party believes that arrangement is unworkable. Swilling and Swilling, 97 Or App 384, 775 P2d 929 (1989); Horner and Horner, 119 Or App 112, 849 P2d 560 (1993)

 

      Where original decree was not issued under Uniform Child Support Guidelines, guidelines apply where substantial change in circumstances warrants any change in support amount or where obligation is collected through enforcing agency. Gay and Gay, 108 Or App 121, 814 P2d 543 (1991)

 

      Ability to modify child support in later proceeding does not prevent court from considering future changes in income in determining original award. Harper and Harper, 122 Or App 9, 856 P2d 334 (1993), Sup Ct review denied

 

      Order for provision of health insurance coverage was child support obligation includable in calculation of arrearage. Ramberg and Ramberg, 123 Or App 281, 859 P2d 571 (1993)

 

      Education expense of continuing student can justify deviation from amount of child support presumed under guidelines. Seever and Seever, 124 Or App 54, 861 P2d 1038 (1993)

 

      Court lacks authority to create trust through child support modification proceeding. Stringer v. Brandt, 128 Or App 502, 877 P2d 100 (1994)

 

      Unless decree is modified, child support obligation cannot be satisfied by parties agreeing to substitute different performance. Forrester and Forrester, 147 Or App 319, 936 P2d 388 (1997), modified 149 Or App 111, 942 P2d 299 (1997)

 

      Where substantial change in economic circumstances is “sufficient for court to reconsider” order of support, reconsideration of proper child support amount is mandatory. Glithero and Glithero, 326 Or 259, 951 P2d 682 (1998)

 

Maintenance of spouse; stipulated settlement and remarriage

 

      Fact that wife is currently, but was not previously, earning salary is but one circumstance which may properly be considered in allowing a modification of alimony award. Gueldenzopf v. Gueldenzopf, 7 Or App 298, 490 P2d 1042 (1971)

 

      Substantial change in circumstances supporting modification requires change in ability of obligor spouse to pay or in obligee spouse’s need for support. Osterholme v. Osterholme, 13 Or App 73, 508 P2d 824 (1973); Case v. Case, 18 Or App 637, 526 P2d 467 (1974)

 

      Where settlement agreement is incorporated into decree, parties are held to have contracted subject to court’s authority to modify support. Copenhaver v. Copenhaver, 15 Or App 142, 515 P2d 185 (1973); Garnett v. Garnett, 270 Or 102, 526 P2d 549 (1974)

 

      Increase in supporting spouse income does not in itself constitute sufficient change in circumstances to justify modification. Wells v. Wells, 15 Or App 507, 516 P2d 480 (1973)

 

      When agreement between parties to divorce is incorporated into divorce decree, it loses its contractual nature and party must seek modification of support provisions rather than reformation. Davis v. Davis, 19 Or App 209, 527 P2d 149 (1974), Sup Ct review denied; Edwards and Edwards, 124 Or App 646, 863 P2d 513 (1993), as modified by 127 Or App 489, 873 P2d 401 (1994)

 

      Court has authority to extend period of support beyond that provided for in original decree. McReynolds v. McReynolds, 24 Or App 891, 547 P2d 664 (1976)

 

      Support payments accruing after filing of motion to modify are subject to enforcement efforts although payment obligation is subject to later modification. Walker v. Walker, 26 Or App 701, 554 P2d 591 (1976), Sup Ct review denied

 

      Use of periodic payment schedule to provide income source to spouse does not convert interest in divisible property into spousal support. Horesky and Horesky, 30 Or App 941, 569 P2d 34 (1977), Sup Ct review denied

 

      Decree that provides for spousal support should enjoin upon supported spouse duty to advise other party if and when supported spouse remarries. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), as modified by 280 Or 769, 572 P2d 1320 (1977)

 

      Trial court lacked authority to renew spousal support payments pursuant to motion that was not filed until after expiration of limited time period during which support was required to be paid under original decree. Park and Park, 43 Or App 367, 602 P2d 1123 (1979), Sup Ct review denied

 

      Occurrence contemplated and provided for in spousal support agreement cannot be change in circumstances. Pope and Pope, 301 Or 42, 718 P2d 735 (1986); Porter and Porter, 100 Or App 401, 786 P2d 740 (1990), Sup Ct review denied

 

      Remarriage of supported spouse may represent change in circumstances but it will not automatically terminate spousal support award because remarriage will not always supplant purposes behind award. Bates and Bates, 303 Or 40, 733 P2d 1363 (1987); Smith and Smith, 103 Or App 614, 798 P2d 717 (1990), Sup Ct review denied, on reconsideration 108 Or App 335, 813 P2d 1137 (1991); Grage and Grage, 109 Or App 311, 819 P2d 322 (1991)

 

      Court could not require yearly physical examinations of spouse. Baumgartner and Baumgartner, 95 Or App 723, 770 P2d 965 (1989), Sup Ct review denied

 

      Court lacked authority to award spousal support in modification proceeding where support obligation had been terminated by prior modification. Woita and Woita, 98 Or App 83, 778 P2d 504 (1989), Sup Ct review denied

 

      Substantial deterioration in wife’s health may constitute changed circumstances, as could failure to improve if significant improvement was contemplated at time of original judgment. Polette and Polette, 99 Or App 327, 781 P2d 1253 (1989), Sup Ct review denied; Winnie and Winnie, 109 Or App 304, 818 P2d 1292 (1991), Sup Ct review denied

 

      Income potentially available due to nonmarital domestic partnership could be considered as changed circumstance in same manner as income potentially available from remarriage. Bliven and Bliven, 106 Or App 93, 806 P2d 177 (1991); Bishop and Bishop, 137 Or App 112, 903 P2d 383 (1995); Morrison and Morrison, 139 Or App 137, 910 P2d 1176 (1996)

 

      Where there was no substantial change of circumstances, court erred in setting date for termination of spousal support in order to end support dependency relationship. Hearing and Hearing, 122 Or App 337, 857 P2d 877 (1993)

 

      Court lacked authority to retroactively reinstate suspended spousal support. Seever and Seever, 124 Or App 54, 861 P2d 1038 (1993)

 

      Instruction to trial court to modify award of spousal support “effective upon entry of appellate judgment” meant that trial court award of spousal support continued until superseded by modified award at time of entry of appellate judgment. Truitt and Truitt, 125 Or App 621, 866 P2d 497 (1994)

 

      Where obligee spouse remarries, burden of proof is on obligor spouse to show that remarriage constitutes substantial change of circumstance justifying modification. Ganger and Little, 139 Or App 350, 911 P2d 1276 (1996)

 

      Court may accept stipulated agreement of parties permitting additional grounds for modification if stipulated agreement is not unfair and does not remove court’s authority to modify on statutory grounds. Eidlin and Eidlin, 140 Or App 479, 916 P2d 338 (1996)

 

      Where party is temporarily unable to meet support obligation, proper remedy is modification of support amount, not temporary suspension of support obligation. Cutting and Cutting, 147 Or App 30, 934 P2d 622 (1997)

 

      Income of obligor spouse at time of modification is irrelevant in determining whether purpose of initial award of spousal support has been met. Moser and Gilmore, 184 Or App 377, 56 P3d 417 (2002)

 

      Consideration of income from all sources includes potential income from property awarded to obligor spouse at time of dissolution. McArdle and McArdle, 186 Or App 672, 64 P3d 1178 (2003)

 

      Marital settlement agreement cannot authorize court to make support obligation retroactive to date before filing date of motion to modify obligation. Hutchinson and Hutchinson, 187 Or App 733, 69 P3d 815 (2003)

 

      Post-dissolution increase in payor spouse’s income does not by itself ordinarily constitute substantial change in economic circumstances. Weber and Weber, 337 Or 55, 91 P3d 706 (2004)

 

      Where initial judgment of dissolution has previously been modified to reduce spousal support obligation based on change in income of payor spouse, further modification to restore original spousal support obligation does not require showing change in needs of payee spouse. Mitchell and Mitchell, 201 Or App 670, 120 P3d 491 (2005)

 

      Where termination date for support obligation occurred on weekend, time for filing petition to modify support obligation was not extended to next business day. Goertel and Goertel, 209 Or App 585, 149 P3d 247 (2006)

 

      In determining whether modification of spousal support is just and equitable, court must consider both principal and income of retirement benefits. Gibson and Gibson, 217 Or App 12, 174 P3d 1066 (2007)

 

Finality of decrees and liens

 

      One who seeks modification of a prior support order must show a material change in the ability of the payor to pay or in the other party’s need for support. Case v. Case, 18 Or App 637, 526 P2d 467 (1974)

 

      A divorce decree providing for payment by each party of one-half the monthly mortgage payments on property held as tenants in common do not create a lien for the payments until an installment accrued and remained unpaid. Clark v. McCoy, 273 Or 81, 539 P2d 639 (1975)

 

      Court-approved marital settlement agreement that waives right of party to seek modification does not contravene public policy or impermissibly interfere with court jurisdiction. McInnis and McInnis, 199 Or App 223, 110 P3d 639 (2005)

 

Vacation of decrees

 

      Provisions of a settlement agreement relating to a division of property, even though it be through the means of periodic payment of money, are invulnerable to change. Garnett v. Garnett, 270 Or 102, 526 P2d 549 (1974)

 

      Trial court lacks power to modify property division portions of final judgment dissolving marriage. Murray and Murray, 88 Or App 143, 744 P2d 1005 (1987); Dee and Dee, 96 Or App 252, 772 P2d 444 (1989)

 

      Agreement of parties to modify property division does not give court authority to enter order of modification. Spady v. Graves, 307 Or 483, 770 P2d 53 (1989)

 

Costs and attorney fees

 

      Father’s motion to terminate child support because son was not “child attending school” was motion under this section and, as result, attorney fees provision of this section was applicable. Yokum and Yokum, 87 Or App 336, 742 P2d 655 (1987)

 

      It is not necessary to specify statutory basis for attorney fees when facts asserted provide basis, parties have been fairly alerted that fees would be sought and no prejudice would result. Page and Page, 103 Or App 431, 797 P2d 408 (1990); Hogue and Hogue, 118 Or App 89, 846 P2d 422 (1993)

 

      Attorney fee award does not require that dispute be resolved through contested case hearing on merits rather than through stipulated agreement. Floeter and Floeter, 113 Or App 182, 830 P2d 626 (1992)

 

      Where opposing party made litigation unduly complex, reasonable and necessary attorney fees included additional cost incurred to respond to extensive legal maneuvering. Weiner and Weiner, 118 Or App 466, 848 P2d 122 (1993)

 

      Because intervening grandparents are not “parties” to modification proceeding, they are not eligible for award of attorney fees. Cerda and Cerda, 136 Or App 104, 901 P2d 263 (1995), Sup Ct review denied

 

      Award of attorney fees payable directly to organization that provided party with free legal services was assessment of legal fees for benefit of party. State ex rel Binschus v. Schreiber, 141 Or App 288, 917 P2d 1063 (1996)

 

      This statute does not exclude intervening parties as parties against whom attorney fees may be awarded on appeal. Holm and Holm, 323 Or 581, 919 P2d 1164 (1996)

 

      ORS 20.075 applies where court exercises discretion to award or deny attorney fees in modification proceeding. Baker and Baker, 173 Or App 33, 20 P3d 263 (2001)

 

      This section authorizes awarding attorney fees to party seeking enforcement of stipulated terms of original dissolution judgment under ORS 107.104 where enforcement efforts are reasonably and materially related to resolution of modification under this section. Berry and Huffman, 247 Or App 651, 271 P3d 128 (2012)

 

      Where child custody proceeding was held to determine best interests and welfare of child, and attorney fees were awarded to claimant, attorney fees were intended to be in nature of support for welfare of child. In re Moser, 530 B.R. 872 (Bkrtcy. D. Or. 2015)

 

COMPLETED CITATIONS: Hogan v. Hogan, 6 Or App 122, 486 P2d 1309 (1971)

 

LAW REVIEW CITATIONS: 51 OLR 725, 726 (1972); 69 OLR 689 (1990)

 

      107.136

 

NOTES OF DECISIONS

 

      Reinstatement of spousal support was not allowed where support was terminated prior to 1991 effective date of statute. Edwards and Edwards, 124 Or App 646, 863 P2d 513 (1993), as modified by 127 Or App 489, 873 P2d 401 (1994)

 

      107.137

 

NOTES OF DECISIONS

 

      Specific acts of custodial parent misfeasance justifying custody change must be of sufficient number and nature to establish course of conduct or pattern of inadequate care having adverse effects. Niedert and Niedert, 28 Or App 309, 559 P2d 515 (1977), Sup Ct review denied

 

      Where erroneous order transferring custody was not stayed, parent right to appeal order outweighs instability caused by retransfer of custody if appeal succeeds. Niedert and Niedert, 28 Or App 309, 559 P2d 515 (1977), Sup Ct review denied

 

      Where court takes unusual action of awarding temporary custody at time of dissolution decree, standard at time of awarding permanent custody is best interest of child, not change of circumstances. Deffenbaugh and Deffenbaugh, 286 Or 759, 596 P2d 966 (1979)

 

      Prohibition on giving preference to mother over father does not prevent consideration of which parent was primary caregiver. Van Dyke and Van Dyke, 48 Or App 965, 618 P2d 465 (1980), Sup Ct review denied

 

      Age difference does not overcome preference for keeping siblings together. Sagner and Sagner, 49 Or App 215, 619 P2d 660 (1980), Sup Ct review denied; Moe and Moe, 66 Or App 947, 676 P2d 336 (1984)

 

      Absence of provision in dissolution decree regarding movement of children out-of-state by custodial parent did not mean custodial parent could move children without court approval, as determination of “best interest of the child” must be made. Smith and Smith, 290 Or 567, 624 P2d 114 (1981)

 

      Joint legal custody and physical custody are not concepts subject to separate awards. Klock and Klock, 83 Or App 656, 733 P2d 65 (1987)

 

      Judgment provision for automatic change in custody without determining whether change served best interest of child is invalid. Jacobson and Jacobson, 84 Or App 704, 735 P2d 627 (1987), Sup Ct review denied; Korteweg v. Shroyer, 127 Or App 32, 870 P2d 863 (1994)

 

      Court may not place conditions on custodial parent behavior unless necessary to protect best interest of child. Rollins v. Rollins, 93 Or App 150, 760 P2d 1381 (1988)

 

      Application of “best interests of child” standard in custody dispute between natural parent and stepparent was improper. McQuade and McQuade, 124 Or App 243, 862 P2d 545 (1993)

 

      Where custodial parent seeks to move out of state, maintaining close geographic connection between child and both parents is not controlling factor in determining best interest of child. Duckett and Duckett, 137 Or App 446, 905 P2d 1170 (1995), Sup Ct review denied

      Where modification of custody is sought, establishment of substantial change in circumstances is prerequisite to court’s consideration of best interests of child. Francois and Francois, 179 Or App 165, 39 P3d 265 (2002)

 

      Issuance of ex parte order against parent under Family Abuse Prevention Act is insufficient to trigger presumption that parent has committed abuse. Weismandel-Sullivan and Sullivan, 228 Or App 41, 206 P3d 1141 (2009), Sup Ct review denied

 

LAW REVIEW CITATIONS: 35 WLR 467, 523, 585, 601, 643 (1999); 36 WLR 549 (2000)

 

      107.149

 

LAW REVIEW CITATIONS: 35 WLR 585 (1999)

 

      107.154

 

LAW REVIEW CITATIONS: 35 WLR 523 (1999)

 

      107.169

 

NOTES OF DECISIONS

 

      Where dissolution judgment awards sole physical custody to one parent, provision of extensive visitation rights does not create de facto joint custody. Gatti and Gatti, 73 Or App 581, 699 P2d 1151 (1985); Willey and Willey, 155 Or App 352, 963 P2d 141 (1998)

      Inability or unwillingness to abide by support provision of joint custody agreement constitutes changed circumstance. Horner and Horner, 119 Or App 112, 849 P2d 560 (1993)

 

LAW REVIEW CITATIONS: 35 WLR 523, 601 (1999)

 

      107.174

 

NOTES OF DECISIONS

 

      Because this section provides exclusive form of stipulated modification of child visitation, oral stipulation was not sufficient. Wylde and Alpert, 110 Or App 401, 823 P2d 429 (1991), Sup Ct review denied

 

      107.405

 

NOTES OF DECISIONS

 

      Court may temporarily suspend visitation whether or not requested by custodial parent. Jones and Jones, 31 Or App 1171, 572 P2d 347 (1977)

 

      Court has power to issue contempt to enforce compliance with property division, but cannot modify division. Drake and Drake, 36 Or App 53, 583 P2d 1165 (1978)

 

      This section does not authorize an award of attorney fees in proceedings brought pursuant to [former] ORS 18.160 to set aside decree of dissolution. Praegitzer and Praegitzer, 49 Or App 981, 620 P2d 979 (1980)

 

      Grant of “full equity powers” by this section refers only to equity powers appropriate for fashioning or modifying dissolution decree, so trial court had no jurisdiction over trust created prior to dissolution by husband’s mother for benefit of parties’ child. Melkonian and Melkonian, 55 Or App 586, 639 P2d 662 (1982)

 

      “Full equity powers” of court are limited to property division and support issues. Koch and Koch, 58 Or App 252, 648 P2d 406 (1982)

 

LAW REVIEW CITATIONS: 51 OLR 719 (1972)

 

      107.407

 

NOTES OF DECISIONS

 

      Labeling of monthly property division payment as spousal support for tax purposes does not make payment subject to termination after 10 years. Schaffer v. Schaffer, 57 Or App 43, 643 P2d 1300 (1982)

 

      107.415

 

NOTES OF DECISIONS

 

      Noncustodial parent has burden of proof to show lack of notice concerning child’s income. Bohm and Bohm, 30 Or App 49, 566 P2d 200 (1977)

 

LAW REVIEW CITATIONS: 69 OLR 717 (1990)

 

      107.425

 

NOTES OF DECISIONS

 

      Investigation under this section is subject to the discretion of the trial court, and the court is not required to order an investigation on its own motion. Gasser v. Gasser, 16 Or App 675, 519 P2d 1290 (1974)

 

      Authority to defer entry of custody order to protect child does not allow court to issue long-term “temporary” orders. Gwinner and Gwinner, 24 Or App 743, 547 P2d 151 (1976)

 

      Trial court may exercise authority to appoint counsel for child for purpose of facilitating appeal. Cerda and Cerda, 136 Or App 104, 901 P2d 263 (1995), Sup Ct review denied

 

      Court authority to appoint counsel for children is limited to instances where domestic relations action has been filed and is pending before court, habeas corpus proceeding is before court or motion to modify existing judgment is before court. Thomason and Thomason, 174 Or App 37, 23 P3d 395 (2001)

 

LAW REVIEW CITATIONS: 51 OLR 719, 721-724 (1972)

 

      107.431

 

NOTES OF DECISIONS

 

      Interference with visitation rights may not be raised in Revised Uniform Reciprocal Enforcement of Support Act proceeding. State ex rel. State of Washington v. Bozarth, 80 Or App 397, 722 P2d 48 (1986)

 

LAW REVIEW CITATIONS: 69 OLR 708 (1990)

 

      107.434

 

NOTES OF DECISIONS

 

      To engage in “wrongful deprivation of parenting time,” one party must deprive other party of parenting time in pursuit of improper motive or by improper means. State ex rel Maubach v. Sarangi, 223 Or App 421, 196 P3d 26 (2008)

 

      107.445

 

NOTES OF DECISIONS

 

      The reasonable value of services performed by an attorney in a given case is a question of fact to be determined in light of the particular circumstances of that case, including the following factors: 1) The nature of the proceedings; 2) the novelty of the issues involved; 3) the time required; 4) the value of interests involved; 5) the results secured; 6) the skill and standing of counsel; and 7) the other financial demands the decree places upon the husband. Colbath and Colbath, 15 Or App 568, 516 P2d 763 (1973)

 

      Award of attorney fees must be in nature of judgment in favor of one party against other and for liquidated amount. Paget and Paget, 36 Or App 595, 585 P2d 38 (1978), Sup Ct review denied

 

      Although wife did not cite this section, wife satisfied requirements described in ORCP 68C (2) because she alleged facts showing husband was in contempt, thereby alerting husband of intention to seek attorney fees and husband was not prejudiced by failure to cite this section. Hogue and Hogue, 118 Or App 89, 846 P2d 422 (1993)

 

      Attorney fees could not be awarded where action was brought to obtain compensation for past contempt rather than to “compel compliance.” Rowland and Kingman, 131 Or App 204, 884 P2d 561 (1994)

 

      107.452

 

NOTES OF DECISIONS

 

      Court may grant relief based upon fraudulent concealment of true ownership of significant asset, notwithstanding that existence of asset was known at time of trial. Conrad and Conrad, 191 Or App 283, 81 P3d 749 (2003)

 

      107.465

 

NOTES OF DECISIONS

 

      Motion for supplemental proceedings to dissolve marriage pursuant to this section is part of same “action” as original decree of unlimited separation and, therefore, party is entitled to notice of other party’s intent to apply for default judgment. Wagner and Wagner, 89 Or App 102, 747 P2d 400 (1987)

 

      107.475

 

      See annotations under ORS 107.220 in permanent edition.

 

      107.510 to 107.610

 

LAW REVIEW CITATIONS: 51 OLR 717, 721 (1972)

 

      107.540

 

ATTY. GEN. OPINIONS: Duty to pay fees as mandatory even in default case under “no fault divorce” law, (1971) Vol 35, p 808

 

      107.550

 

ATTY. GEN. OPINIONS: Duty to pay fees as mandatory even in default case under “no fault divorce” law, (1971) Vol 35, p 808

 

      107.590

 

LAW REVIEW CITATIONS: 43 WLR 421 (2007)

 

      107.700 to 107.735

 

NOTES OF DECISIONS

 

      Criminal contempt proceeding for failure to obey restraining order issued pursuant to Family Abuse Prevention Act is not “criminal prosecution” within meaning of Article I, section 11 of Oregon Constitution. State ex rel Hathaway v. Hart, 70 Or App 541, 690 P2d 514 (1984), aff’d 300 Or 231, 708 P2d 1137 (1985); Bachman v. Bachman, 171 Or App 665, 16 P3d 1185 (2000), Sup Ct review denied

 

      Existence of restraining order prohibiting petitioner from contacting respondent does not provide grounds for refusing to issue restraining order prohibiting respondent from contacting petitioner. Rosiles-Flores v. Browning, 208 Or App 600, 145 P3d 328 (2006)

 

      Judgment holding individual in contempt of “stay away” portion of restraining order does not constitute violation of protection order under federal Immigration and Nationality Act. Szalai v. Holder, 572 F3d 975 (9th Cir. 2009)

 

LAW REVIEW CITATIONS: 33 WLR 971 (1997); 85 OLR 325 (2006)

 

      107.705

 

NOTES OF DECISIONS

 

      Definition for “interfere” suggests behavior that constitutes direct interference with person protected by Family Abuse Prevention Act order. State v. Trivitt, 247 Or App 199, 268 P3d 765 (2011)

 

LAW REVIEW CITATIONS: 35 WLR 643 (1999)

 

      107.716

 

NOTES OF DECISIONS

 

      Existence of restraining order prohibiting petitioner from contacting respondent does not provide grounds for refusing to issue restraining order prohibiting respondent from contacting petitioner. Rosiles-Flores v. Browning, 208 Or App 600, 145 P3d 328 (2006)

 

      Where parties did not have opportunity to be heard on issues of law or fact related to relief available under ORS 107.718 (1) and court was not asked to make determination on those issues, hearing was not “held pursuant to” ORS 107.718 (10) and court lacked statutory authority to award attorney fees under this section. Rhodes v. Gannon, 281 Or App 1, 381 P3d 869 (2016)

 

      107.718

 

NOTES OF DECISIONS

 

      This section is mandatory, not permissive, and court had non-discretionary duty to hold hearing on Petition for Restraining Order and to Prevent Abuse. State ex rel Marshall v. Hargreaves, 302 Or 1, 725 P2d 923 (1986)

 

      “Molest” means to annoy, disturb or persecute, especially with injurious effect, and includes general harassment. State ex rel Emery v. Andisha, 105 Or App 473, 805 P2d 718 (1991)

 

      “Menace” means to show intention to harm or to act in threatening manner. State ex rel Emery v. Andisha, 105 Or App 473, 805 P2d 718 (1991)

 

      Party to hearing on relief granted by restraining order has right to call witnesses. Miller and Miller, 128 Or App 433, 875 P2d 1195 (1994)

 

      Right to hearing contemplates both sworn testimony of parties and examination under oath of other witnesses on relevant matters. Nelson v. Nelson, 142 Or App 367, 921 P2d 412 (1996)

 

      Return of service for restraining order is admissible under hearsay exception for official records. Frady v. Frady, 185 Or App 245, 58 P3d 849 (2002)

 

      Existence of restraining order prohibiting petitioner from contacting respondent does not provide grounds for refusing to issue restraining order prohibiting respondent from contacting petitioner. Rosiles-Flores v. Browning, 208 Or App 600, 145 P3d 328 (2006)

 

      Phrases “interfering with” and “interfere with” suggest behavior that constitutes direct interference with person protected by Family Abuse Prevention Act order. State v. Trivitt, 247 Or App 199, 268 P3d 765 (2011)

 

      Where parties did not have opportunity to be heard on issues of law or fact related to relief available under subsection (1) of this section and court was not asked to make determination on those issues, hearing was not “held pursuant to” subsection (10) of this section and court lacked statutory authority to award attorney fees under ORS 107.716. Rhodes v. Gannon, 281 Or App 1, 381 P3d 869 (2016)

 

LAW REVIEW CITATIONS: 33 WLR 971 (1997)

 

      107.721

 

LAW REVIEW CITATIONS: 35 WLR 643 (1999)

 

      107.755 to 107.785

 

LAW REVIEW CITATIONS: 27 WLR 551 (1991)

 

      107.765

 

LAW REVIEW CITATIONS: 35 WLR 485, 523 (1999)

 

      107.820

 

NOTES OF DECISIONS

 

      ORS 107.106 provides authority for requiring parent maintenance of insurance that is independent of requirement imposed by this section. Willey and Willey, 155 Or App 352, 963 P2d 141 (1998)

 

ATTY. GEN. OPINIONS: Insurable interest in life of support obligor where decree existed on effective date of law establishing interest, (1982) Vol 42, p 301