The Oregon Divorce Blog » Modification

New Case Law – Substantial Change of Circumstances Since the Last Custody Order

Meg Clark-Kilcoyne — Fri, 30 Mar 2012 21:05:43 +0000

On March 28, 2012, the Oregon Court of Appeals decided Sconce and Sweet. In this case, the trial court granted the father’s 2010 motion for a change in custody, granting him sole custody of the parties’ child. The trial court found that there had been a substantial change in circumstances since the parties’ general judgment entered in 2001, which granted sole custody to the mother. The Court of Appeals, however, stated that whether or not there had been a substantial change of circumstances should be measured from the “last custody order,” or “most recent” custody order. In this case, there had been a 2004 supplemental judgment denying the father’s request for sole custody. The Court of Appeals stated that the last or most recent custody order is not limited to an order which modifies custody, but rather means any order relating to custody, including orders denying a change in custody. The court further stated that to look back further than the most recent order related to custody – whether that order modified custody or not – would undermine the preclusive effect of that order. The Court of Appeals found that there was no substantial change of circumstances since the 2004 judgment and reversed the trial court’s award of custody to the father.

The entire opinion can be found here.

New Case Law – Modifications of Spousal Support

Meg Clark-Kilcoyne — Thu, 29 Mar 2012 21:42:22 +0000

On March 28, 2012, the Oregon Court of Appeals decided Spillane and Spillane. In this case, the trial court had terminated the husband’s obligation to pay spousal support based on his declining health, and the wife appealed that decision. The court of appeals considered the evidence related to the husband’s declining health and determined that there was not a current change in circumstances related to the husband’s ability to pay, since his health problems had not yet prevented him from working full time, although he anticipated that they may do so at some point in the future. The court further found that both the husband’s COPD and hearing loss predated the parties’ divorce and that although they may have gotten worse since then, that was anticipated by the court at the time of the divorce and the court ordered indefinite spousal support in spite of it. The court also found that the husband had not proved a substantial decline in his income, and that he was enjoying a standard of living similar to that enjoyed during the marriage. The court stated that the husband had not met his burden of proof and reversed the trial court’s decision.

The entire opinion can be found here.

New Case Law – Support Enforcement Division Does Not Have Authority to Modify Child Support While an Appeal is Pending

Meg Clark-Kilcoyne — Thu, 10 Nov 2011 20:03:06 +0000

On August 31, 2011, the Oregon Court of Appeals decided Division of Family Support Unit v. Sullivan.

This case deals with a parent’s ability to modify child support through the Support Enforcement Division while the divorce judgment is being appealed. Mother had appealed the trial court’s decision in the divorce case and, while her appeal was pending, Father requested a modification of child support. There followed a number of different administrative and Circuit Court hearings related to Father’s request to modify child support, and Mother eventually appealed the final decision. The Court of Appeals stated that the Support Enforcement Division did not have the authority to modify child support while the appeal was pending.

It is important to note that, under ORS 19.275, the trial court can modify child support while an appeal is pending based on a substantial change of circumstances. This decision only limits administrative changes to child support.

The entire opinion can be found here.

New Case Law – Agreement Not To Modify Child Support Does Not Violate Law or Public Policy

Meg Clark-Kilcoyne — Mon, 07 Nov 2011 23:18:43 +0000

On October 26, 2011, the Oregon Court of Appeals decided Matar and Harake.

In this case, the parties signed a stipulated general judgment which awarded child support to Mother. The judgment included a provision preventing either party from modifying child support in the future based on changes in income or any other change of circumstances, such as a change in parenting time. Four years later, Father attempted to modify his child support obligation based on a decrease in his income, and the trial court upheld the agreement not to modify. Father argued that the provision violated public policy because it deprived the state of the right to set child support according to the support guidelines and deprived the court of its authority to modify child support. The Court of Appeals found the agreement did not take away the court’s authority to modify child support, but rather was an agreement between the parties waiving their right to seek modification. The Court found that such waiver provisions are enforceable, unless the circumstances of a particular case make enforcement of the agreement contrary to public policy. The Court left the open the possibility that it would not enforce such an agreement if doing so would negatively impact the children in a particular case.

Parties to a divorce should generally avoid provisions which limit their ability to seek future modifications which would be allowed under Oregon law.

The entire opinion can be found here.

Child Support and The New Economy – A Letter From The Oregon Attorney General’s Office

Daniel Margolin — Thu, 07 May 2009 23:58:19 +0000

I wrote a post a few weeks ago about the effect of the current enconomy on child support modification. The State of Oregon has taken note of the problem. Margaret Olney with the Oregon Attorney General’s Office sent out the following email with regard to the changes being made effective today, May 7th. Please contact Stephens Margolin P.C. to see how the changes may affect your child support situation.

Here is the letter:

Greetings,

As you know, the Attorney General has initiated a special project to respond to current economic crisis. The goal of this project is to speed the entry of fair and enforceable orders. We are also hoping to use the project as an opportunity to try out some other changes in the guidelines and procedures.

There are two important changes that will become effective May 7, 2009. First, at the request of the Division of Child Support, the legislature has enacted and the Governor signed emergency legislation and rules authorizing the temporary modification of existing orders based upon employment related loss of income to either parent. HB 2275A. These temporary modifications are only available through the child support program, either through the Division of Child Support (DCS) or through District Attorneys offices. Private attorneys and the court cannot independently issue temporary modifications. DCS has established a specialized unit in Salem called the “Recession Response Team” (RRT) to handle these modifications, using streamlined procedures designed to encourage consent and expedite modifications. Parents can access this team through the DCS interactive telephone system, by dialing 1-800-850-0228 and listening to the instructions.

The second change is to the child support guidelines themselves. The most significant changes include a cap on child care costs, adjustments relating to medical support orders and the establishment of a presumption $100 minimum order.

More details regarding the changes follow. The proposed rules are currently posted on the DOJ/DCS website in draft form. http://www.dcs.state.or.us/oregon_admin_rules/child_support_rules/draft.htm. In addition, a training module will be available through the DOJ-DCS website.

Statutory Change:

HB 2275A was signed by the Governor on May 5 and makes a number of changes to ORS 416.400 through ORS 416.465. It authorizes the Attorney General to declare that we are in a period of significant unemployment (an unfortunately easy decision to make in this economy), during which time existing orders can be suspended and replaced with a temporary modification based upon actual income. These temporary modifications automatically expire six months from the date of entry in court, but may be renewed. HB 2275A also authorizes alternate forms of service designed to speed the modification process.

Regular Division Rule Changes:

OAR 137-055-2140 (Delegations to Administrative Law Judge): this change allows an administrative law judge (ALJ) to enter a final order by default on employment-related modifications. It also allows the ALJ to dismiss the temporary modification request if the requesting party fails to appear for the hearing.

OAR 137-055-2165 (Request to Reschedule): this change requires requests to reschedule a hearing to be filed within 60 days of the notice of hearing cancellation.

OAR 137-055-3420 (Periodic Review): this change clarifies that a temporary modification does not affect the time period for a periodic review and adjustment of the order that is suspended.

OAR 137-055-3430 (Change of Circumstance Review): this change amends the change of circumstance rule to:

• Provide a definition of an “temporary modification” pursuant to HB 2275
• Define “employment-related change of income”
• Allow for a verbal request for temporary modifications
• Allow for alternative service methods on temporary modifications

The online calculator will be modified and ready with the changes outlined above on May 1, 2009.

Guideline Rule Changes:

OAR 137-050-0320 (Definitions): this change provides that when a parent must self-enroll in medical coverage in order to enroll his/her child(ren), the providing party’s portion of the health care coverage premium may be deducted from modified gross income. The coverage must still be found to be appropriate before it can be ordered. The child’s portion of the cost is still handled as set out in OAR 137-050-0410.

OAR 137-050-0330 (Computation): this change clarifies that when the self-support reserve lowers the child support obligation, the reduction is applied first to the cash medical support amount and then to the cash child support amount.

OAR 137-050-0340 (Gross Income): this change moves the requirement that gross income must be attributed to the parent who is a recipient of TANF to the “Income Presumptions” rule.

OAR 137-050-0360 (Potential Income): this change renames the rule to “Income Presumptions” and provides that a rebuttable presumption of actual income is to be used for temporary modifications and potential income for all other modifications.

OAR 137-050-0420 (Child Care Costs): this change caps child care costs based on the age of the child and where the care is provided. The figures used for the cap are captured from the Department of Human Services administrative rules, averaged across the board.

OAR 137-050-0430 (Cash Medical Support): this change creates the priority of cash child support over cash medical support when the self-support reserve lowers the obligation amount. It also prohibits entry of an order for cash medical support if the obligor’s income is less than Oregon minimum wage.

OAR 137-050-0475 (Ability to Pay): this change provides that where the self support reserve is presumed to be the correct obligation amount, any reduction in the obligation amount applies first to the cash medical support amount, if any, and then to the cash child support amount.

OAR 137-050-0485 (Minimum Order): this new rule authorizes a rebuttable $100 per family minimum order, except in certain situations.

Looking to the Future

The Attorney General is extremely committed to making the Oregon Child Support Program effective and fair to all participants. DCS staff have worked extraordinarily hard to develop and implement this Recession Response project on a very short timeline. I am confident that many families will benefit from the program and that we will be able to learn from this project. Some aspects will work, others not, so please let us know your experience and thoughts.

If you have questions, you may contact me directly and I will attempt to answer you question or point you in the right direction.

Margaret Olney
Special Counsel
Office of the Attorney General
margaret.olney@doj.state.or.us

1162 Court Street, NE
Salem, OR 97301
503.378.6002
971.673.1880 (Portland)
503.367.4017 (fax)

Modification of Spousal Support – Part 1 (a few thoughts)

Jon Berman — Tue, 14 Apr 2009 23:15:08 +0000

Though my girlfriend might be insulted to discover that my attention can, in fact, be diverted from the madness of college hoops in March, that’s exactly what happened last Saturday as I watched A.J. Price drain his forth 3-pointer of the game, sealing yet another Final Four berth for the Huskies. Let me clarify. First, though the Huskies of Washington put forth a valiant effort this year, I’m a UCONN man, so I’m talking about the Connecticut Huskies. Second, my attention was only diverted after UCONN took an insurmountable lead. Nevertheless, the clock was still ticking, and instead of watching the screen, I found myself staring at my french fries, contemplating something that I had just overheard at the table next to mine.

“I don’t know what to do… I won’t be able to make my spousal support payment this month… I feel horrible.” The man who spoke these words was well-dressed, middle-aged and an obvious sports fan. By all accounts, he was a “regular guy.” This does not surprise me, because if there is one near constant among family law matters it is this: folks don’t like paying spousal support.

The payment of any monthly obligation can be tedious; keeping up with consumer obligations (paying high interest credit cards), or even providing for more basic needs (paying the mortgage), is a dreary process which is constantly eating away at our disposable income. Nevertheless, whereas we have presumably derived some benefit from accruing consumer debt (e.g., the purchase of new clothes, an automobile, vacation, etc), and whereas we derive current and future benefits by making our monthly mortgage payment, there does not appear to be any comparable benefit derived from the payment of spousal support. This seemingly thankless obligation, coupled with the probability that the person to whom this obligation is owed is often someone who we may not particularly like very much, can make the payment of spousal support particularly loathsome.

And so this is exactly what struck me about the comment made by this “regular guy.” I got to thinking that, perhaps, for some, once the obligation to pay support has “sunk in”, and after the pain and hurt feelings associated with divorce have passed, the payment of spousal support may appear different to the person paying it then it once did. Perhaps the notion of helping out a former (or maybe even a current) loved one starts to feel pretty good.

The economy is clearly in bad shape and the downturn has affected everyone. While many companies are trying to avoid lay-offs by reducing employee salaries, other employers are having to take more drastic measures. For some, this means lay-offs and severance packages. For others, it means unemployment checks. Whatever the situation, for many, the economic downturn means a decrease in income.

Please continue to parts 2 and 3 of this post: Part 2 (http://oregondivorceblog.com/wordpress/?p=407); Part 3 (http://oregondivorceblog.com/wordpress/?p=409)

Can I get custody of my child now if he or she is in danger?

C. Sean Stephens — Wed, 13 Aug 2008 04:52:38 +0000

As family law attorneys based in Portland, Oregon, we talk to a lot of parents with safety concerns about the other parent’s home. We hear questions about how to get custody quickly, or change a parenting plan quickly if a child is not safe with the other parent.

The court can establish custody or parenting time in divorces, annulments, legal separations, modifications, custody actions, filiation actions, and third party custody cases. If custody is established in these cases at the time of the final hearing, it may take months between the filing of the petition or motion and the court’s final decision. But what do you do if a child is in danger now, and a full evidentiary hearing is months away? Oregon courts provide for an emergency remedy if a child is in immediate danger of harm.

Oregon courts can award emergency custody even if there is no previous custody determination between the parties. ORS 107.097 provides in part that “[a] court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

(A) The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and
(B) The court finds, based on the facts presented in the party’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

Oregon courts can also award emergency custody even if there is already a custody judgment between the parties. ORS 107.139 provides in part that “[f]ollowing entry of a judgment, a court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

(A) A parent of the child is present in court and presents an affidavit alleging that the child is in immediate danger;
(B) The parent has made a good faith effort to confer with the other party regarding the purpose and time of this court appearance; and
(C) The court finds by clear and convincing evidence, based on the facts presented in the parent’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

The main difference between the two provisions is that pre-judgment no notice is required; while post-judgment you must make a good faith effort to talk to the other party about the appearance. If the court grants an emergency motion, the non-moving party is entitled to a hearing. The issue at the hearing is limited to whether or not the child was in an immediate danger at the time the emergency order was issued.

If you already have a parenting plan, you need the court’s permission to change it. You cannot simply refuse to return a child in violation of the parenting plan. The consequences for refusing to follow parenting plans are serious, and can include jail time in some situations. The emergency custody statutes do not offer much guidance to the courts, and judges in the same courthouse can have different interpretations of what both “immediate” and “danger” mean. You should immediately consult with an experienced family lay attorney if you believe your child is in danger of harm with the other parent.

Can I move out with the kids? The “Temporary Protective Order of Restraint” and “Status Quo Order”

C. Sean Stephens — Thu, 15 May 2008 04:46:29 +0000

As family law lawyers based in Portland, Oregon, potential clients ask us about if they can move out of the family home with the children, or if they can prevent a move. We hear questions like the following:

Can I move with the children out of the marital home?
Can the other parent move out with the children without my consent?
If we haven’t followed the parenting plan in our judgment, can I prevent the other parent from changing the agreed upon plan?
Can I prevent a move that disrupts the children’s routine?
Can I move and change the children’s routine?

This post was almost a “divorce myth” post for the sole reason there so much misinformation about moving away from the other parent with children. The answer is that you can move without the other parent’s permission, but Oregon provides two potential remedies to block a move out of the family home, or force a return of the children to the family home.

Prior to a final judgment, as part of a divorce, annulment, legal separation, or third party custody case, Oregon law allows a parent to obtain a temporary order called a “Temporary Protective Order of Restraint” The order is temporary because it is only in effect during a case. The statue, ORS 107.097, allows you to obtain a court order that prevents the other party from:

Changing the child’s usual place of residence;
Interfering with the present placement and daily schedule of the child;
Hiding or secreting the child from the other party;
Interfering with the other party’s usual contact and parenting time with the child;
Leaving the state with the child without the written permission of the other party or the permission of the court; or
In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.

With a few exceptions, if the other parent moves out of the house without your permission, you can use ORS 107.097 to force the children’s return to the home, and force a return to your pre-move level of contact with the kids.

During a modification of custody or parenting time (after entry of a final judgment), the court allows for entry of a “Status Quo Order” that is very similar to the “Temporary Protective Order of Restraint.” ORS 107.138 allows you to obtain a “Status Quo Order” in a custody modification action that prevents the other parent from:

Changing the child’s usual place of residence;
Interfering with the present placement and daily schedule of the child;
Hiding or secreting the child from the other party;
Interfering with the other party’s usual contact and parenting time with the child;
Leaving the state with the child without the written permission of the other party or the permission of the court; or
In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.

To obtain a status quo order, you must:

Notify the other party;
Give the other party an opportunity to contest issuance of the order;
File an affidavit that sets forth with specificity the information required by ORS 109.767 and the person with whom the child has lived during the preceding year and the child’s current schedule, daily routine and usual place of residence.
Give the other party 21 days notice before the date set for the hearing.

For both a “”Temporary Protective Order of Restraint” and a “Status Quo Order,” a “Child’s usual place of residence” means the place where the child is living at the time the motion for the temporary order is filed and has lived continuously for a period of three consecutive months, excluding any periods of time during which the noncustodial parent did exercise, or would otherwise have exercised, parenting time. A“Parent’s usual contact and parenting time,” “present placement and daily schedule of the child” and “current schedule and daily routine of the child” mean the contact, parenting time, placement, schedule and routine at the time the motion for the temporary order is filed.

If you are thinking of moving out of the family home with the children without consent, or the other parent moves out of the family home without your consent, you should consult with a family law lawyer to discuss the legal effect of the move in light of ORS 107.097 and ORS 107.138. The lawyers at Stephens & Margolin can help you with how these laws apply to your particular situation.

New Case Law: Moving Away and Modification of Custody and Parenting Time

C. Sean Stephens — Sat, 03 May 2008 16:25:38 +0000

A “move away” case is where one parent, either in an initial filing or modification, seeks to move a child away from the other parent. Move away cases are hard. In Oregon, the legislature’s stated policy is that good parents should have frequent and continuing contact with their children. ORS 107.101. Parenting plans that allow frequent contact between the children and both parents work well if people live close, but is very difficult if parents do not live close.

On April 30, 2008, the Oregon Court of Appeals published an opinion in Pfaff and Pfaff that provided a frustrating twist to father’s objection to mother’s move. Mom was awarded custody of the child in the 2002 divorce. In December of 2005, she asked the court to modify parenting time so she could move to California with the child. She alleged the move was in the child’s best interests, because she had family in the area and a good job prospect. After hearing, mother was granted permission to move to the Bay Area, and take the child with her.

Additional motions were filed. The court clarified parenting time by a supplemental judgment in January of 2007. In August 2007, a hearing was held where mother testified she had instead moved to Las Vegas, was pregnant, and had built a house with her fiancee. In a November 2007 hearing, father was awarded temporary custody pending a December 2007 hearing.

The Court of Appeals dismissed father’s appeal as moot, because the trial court ruling did not decide whether moving the child out of state was in the child’s best interest, but rather, the specific question whether relocating to the Bay Area was in the child’s best interests. The Court reasoned that since mother was not going to return to California, any decision regarding the child’s interests in living in California wouldn’t affect the parties’ rights.

What does this mean? If you are resisting a move, ask the court to make specific findings that any relocation out of the area is not in the child’s best interests.

You can review the full opinion in Pfaff and Pfaff at http://www.publications.ojd.state.or.us/A123987.htm.

Divorce Myths: My ex will have to pay for my attorney fees.

C. Sean Stephens — Wed, 12 Mar 2008 03:52:26 +0000

Based on questions we hear from clients, there is a lot of confusion about who ultimately has to pay for attorney fees. The belief that the opposing party will have to pay some of your fees isn’t exactly a myth, because sometimes the court does order one side to pay a portion of the other side’s legal bill. We hear a range of questions on the subject, from “Can I make my spouse pay for my lawyer?” to “He/She started this, they will have to pay, won’t they?” While it is the client’s responsibility to pay for work as it progresses, in many cases it is appropriate to ask the other side to pay some, or all of your lawyer’s bill.

Can the court order my spouse to pay legal fees at the beginning of my case? The court can, and sometimes does order one side to provide a retainer and expenses for experts to the other side. ORS 107.095 authorizes the court, at a hearing after a divorce filing, to order one side to pay a lump sum towards future attorney fees and costs to allow a party to pursue or defend a divorce.

The court can also order that one spouse reimburse the other for lawyers fees and costs already incurred. The general rule in Oregon is that each side pays their own legal fees, unless there is a statute that shifts liability to the other side. Many family law cases have such a statute, from modification (ORS 107.135) to divorce (107.105) to enforcement of parenting time (ORS 107.434), to contempt of court (ORS 33.105). When specified, you have the right to ask for fees at the beginning of the case, and the right to have a hearing on the issue of who pays at the end of the case. The procedure for asking for fees is governed by ORCP 68. The question as to if fees should be awarded, and how much, is covered in ORS 20.075. The first test is whether fees should be awarded. The court looks to ORS 20.075(1) to answer this question, which reads:

Factors to be considered by court in awarding attorney fees; limitation on appellate review of attorney fee award. (1) A court shall consider the following factors in determining whether to award attorney fees in any case in which an award of attorney fees is authorized by statute and in which the court has discretion to decide whether to award attorney fees:

(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.

(b) The objective reasonableness of the claims and defenses asserted by the parties.

(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.

(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.

(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.

(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.

(g) The amount that the court has awarded as a prevailing party fee under ORS 20.190.

(h) Such other factors as the court may consider appropriate under the circumstances of the case.

If appropriate to award fees, the court analyzes what fees to award per ORS 20.075(2), which reads:

A court shall consider the factors specified in subsection (1) of this section in determining the amount of an award of attorney fees in any case in which an award of attorney fees is authorized or required by statute. In addition, the court shall consider the following factors in determining the amount of an award of attorney fees in those cases:

(a) The time and labor required in the proceeding, the novelty and difficulty of the questions involved in the proceeding and the skill needed to properly perform the legal services.

(b) The likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney from taking other cases.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the results obtained.

(e) The time limitations imposed by the client or the circumstances of the case.

(f) The nature and length of the attorney’s professional relationship with the client.

(g) The experience, reputation and ability of the attorney performing the services.

(h) Whether the fee of the attorney is fixed or contingent.

(3) In any appeal from the award or denial of an attorney fee subject to this section, the court reviewing the award may not modify the decision of the court in making or denying an award, or the decision of the court as to the amount of the award, except upon a finding of an abuse of discretion.

(4) Nothing in this section authorizes the award of an attorney fee in excess of a reasonable attorney fee.

How do you get your lawyer’s fees paid by the other side? Be prepared, be reasonable, and document the conduct of the unreasonable opposing party. How do you avoid paying the other sides fees? Be prepared, be reasonable, and make a good faith effort to settle.