In re the Marriage of Gilmore

311 P.3d 970, 258 Or. App. 747, 2013 WL 5561350, 2013 Ore. App. LEXIS 1198
CourtCourt of Appeals of Oregon
DecidedOctober 9, 2013
DocketC030893DRA; A149032
StatusPublished
Cited by4 cases

This text of 311 P.3d 970 (In re the Marriage of Gilmore) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Gilmore, 311 P.3d 970, 258 Or. App. 747, 2013 WL 5561350, 2013 Ore. App. LEXIS 1198 (Or. Ct. App. 2013).

Opinion

ORTEGA, P. J.

Father in this dissolution case appeals a supplemental judgment modifying child support. ORS 107.135(l)(a). The trial court, in that judgment, ordered mother to pay child support in the amount of $327 per month. Father asserts that the trial court improperly failed to “impute income to mother in an amount consistent with that monthly income she voluntarily left.” In particular, after losing custody of the parties’ only child to father, mother retired from her job at age 56 and moved to Panama. The trial court calculated mother’s child support obligation using mother’s actual retirement income. In father’s view, in calculating child support, the court improperly failed to utilize mother’s potential income pursuant to OAR 137-050-0715 (7/1/10).1 We agree with father and, therefore, reverse and remand.

On appeal, father requests that we exercise our discretion to review the trial court’s decision de novo. See ORS 19.415(3)(b) (providing for discretionary de novo review on appeal in certain equitable actions); Turner and Muller, 237 Or App 192, 194-98, 238 P3d 1003 (2010), rev den, 350 Or 231 (2011) (exercising discretion to conduct de novo review in a domestic relations case). However, in our view, this is not an exceptional case justifying exercise of de novo review. See ORAP 5.40(8)(c) (“The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases.”). Accordingly, we review the trial court’s decision for legal error and “state the facts consistently with those found by the trial court to the extent that there is evidence to support them.” Nice v. Townley, 248 Or App 616, 618, 274 P3d 227 (2012).

In 2003, mother filed a petition for dissolution of marriage, and the trial court entered a general judgment of dissolution in 2005. At that time, mother was awarded sole custody of the parties’ child; father had parenting time and was ordered to pay child support. In 2008, father sought modification of the dissolution judgment, asserting that he [749]*749should be awarded custody of child. The court appointed a custody evaluator and, in June 2009, entered a supplemental judgment awarding custody to father, subject to mother’s parenting time.

In October 2010, father filed a motion to modify mother’s parenting time. In an affidavit in support of the motion, father stated that he had received an e-mail from mother stating that she would be moving out of town on October 14, 2010, and that child had informed him that she and mother were moving to Panama. Mother’s response confirmed that she had, indeed, moved to Panama without child. In January 2011, father filed a motion to modify the dissolution judgment to require mother to pay child support. Thereafter, the court entered a supplemental judgment modifying mother’s parenting time and, in May 2011, held a hearing on the issue of child support.

At the hearing, mother testified that, because of an early retirement incentive offered by her employer, she had voluntarily retired from her job at Portland Community College (PCC) in August 2010 at the age of 56. She received $2,130 each month in public employee retirement (PERS) benefits; while teaching at PCC she had earned $6,450 each month. At the time mother elected to retire, child was 10 years old.

According to mother, she had decided to retire and move for “the emotional and the physical and the mental health of [child] after * * * father had been awarded custody” in view of the problematic relationship between mother and father and his wife:

“[Child] was being really deeply affected by that, and I didn’t feel — I didn’t — I couldn’t think of any other way to get her out of the middle than for * * * one of us to be farther away.”

Mother further explained:

“I weighed all the pros and cons, and I realized that if I were going to retire, knowing how little money I was going to get when I retired, and if I was going to move away to keep [child] out of all of this, that I had to move someplace where the cost of living was really low.”

[750]*750According to mother, she chose Panama primarily

“for the cost of living because of my reduced income. I didn’t feel like I could afford to live anywhere in the United States that was- — -I don’t know what the word is — desirable, I guess, to me, based on the amount of income that I was getting.”

Mother also stated that she was not able to work in Panama.

Father, for his part, described child’s special needs and discussed the medical expenses associated with those special needs. He stated that, among other things, child required tutoring, medication, and treatment by a psychologist for children with special needs. With respect to the child support that mother should be required to pay, father asserted that she could not “elect to retire with a ten-year-old, particularly a ten-year-old child with special needs, and expect that [her] child support is going to be established at an income level that is about 30 percent of what [she has] the capability of earning.” He emphasized that mother was unemployed and had reduced income solely as the result of her own choices. According to father, child is “entitled to the full support of both of her parents” and, under the circumstances, the “child support guidelines require the use of potential income, and that potential is what she was earning at PCC.”

Mother, in turn, argued that she “appropriately retired under the rules of PERS” and that there was “nothing wrong with what she did.” She asserted that, “if you retire appropriately under the rules of where you’re working, * * * that ends the discussion.” Also, as to potential income, mother contended that, because she now lives in Panama and cannot work there, there are “no real additional funds that she can make.”

The court did not discuss mother’s potential income, instead concluding that her income “for purposes of child support” is the $2,130 she actually receives in retirement benefits. The court reasoned:

“[T]he move to Panama is consistent with so many different steps along the way, all of which are not well considered, all which seem to ignore the overall consequences, all [751]*751which seem to be, in the Court’s opinion, almost irrational. But are all consistent.
«if: if: if: if: if:
“[I]n reality, she doesn’t think like I think. She doesn’t think like [father] thinks. * * * The reason she is in Panama is because she doesn’t think the way we think. I couldn’t imagine retiring at age 56. That’s just — and just lay around all day long, I just can’t imagine that. But that’s not for me to judge, except to see whether it’s totally inconsistent with all the other things I’ve seen along the way, and it isn’t.
“And she’s, in her way, created peace for the child, and created peace for [father] by being so far away. I mean, so removed that she can’t cause you any problems. And she can’t cause the child any problems.

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Cite This Page — Counsel Stack

Bluebook (online)
311 P.3d 970, 258 Or. App. 747, 2013 WL 5561350, 2013 Ore. App. LEXIS 1198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-gilmore-orctapp-2013.