In re the Marriage of Glithero

934 P.2d 492, 146 Or. App. 398, 1997 Ore. App. LEXIS 109

• Court: Court of Appeals of Oregon
• Decided: February 19, 1997
• Docket: 93-4535; CA A90270
• Status: Published

Opinions

RIGGS, J.

Father appeals from the trial court’s denial of his motion to reduce child support. We affirm.

At the time of the parties’ marital dissolution trial in January 1995, father was earning $3,309 per month at Myers Container, where he had worked for 17 years. That income was based on a 40-hour work week plus mandatory overtime. On February 3, 1995, father was laid off work. He received unemployment income and worked sporadically until March 27, 1995, at which time he accepted a job with another company, CMSI, that paid $2,236 per month. He declined an offer to return to his old job at Myers.

At a hearing on his subsequent motion to reduce child support,¹ father produced evidence of his reduced income and testified that in his opinion, decreased support would not create a hardship for his children. He testified that he had chosen to keep the new job at CMSI even after being offered his job back at Myers, because:

“I would be starting at the bottom and I can move up where [as] * * * at Myers Container, I was at the top and [had] nowhere to go. There’s more chances for advancement at CMSI. There’s more chances to learn * * * more about machinery, different types of machinery.

“They offer educational — tuition reimbursement where [as] Myers Container didn’t offer any of that.”

When questioned by the court as to why he had taken a job that paid approximately $10,000 less per year, father explained that he hoped the new job would provide “a better opportunity” and that he was tired of working mandatory overtime that required him to be on the job between nine and 12 hours a day, six or seven days each week, “with no relief in sight.” He also testified that being at work so much of the time had “dramatically” affected his relationship with his children and that he would now have more time to spend with them. He denied that he had taken the new job in order to reduce his child support obligation.

The trial court made the following rulings from the bench:

“It appears to me, first, that there’s no doubt that Mr. Glithero changed his occupation. It appears to me that he had an opportunity to go back to his old job, chose not to, and so I believe that his change of occupation was voluntary. I also believe it was in good faith.

“I don’t believe that Mr. Glithero did it just to reduce his income. I think he did it because, as he told me, he was tired of working all that overtime. He saw that this job maybe has some greater potential, in his mind, and so I believe that it was in good faith.

“So the question comes down to who should bear the burden of the fact that there is now less income available to be distributed? Should the children through the child support, should they have a reduction or should Mr. Glithero have to bear the expense of the fact that he has made a decision, even though that decision was made in good faith?

“I think that that is the decision that basically drives the rest of this matter. It appears to me that the law is that having found that there is a good faith change in his employment, now I have to determine whether or not there has been evidence offered here today that would show that the decrease in support to the children — I’m stating that wrong — that the decrease [hardship] to the obligor, if he has to continue paying the same support amount because he will have less income, outweighs any hardship to the children.

“I’m not able to find that. It appears to me that — and it should come as no surprise to anybody in this courtroom, that there is no more money to be divided up between these parties for their needs and the childrens’ needs than there was at the time of the divorce six months ago.

<Ci£ * * *

“Mrs. Glithero, now Silvas * * * indicates that she has a difficult time making her payments [on regular bills]. In fact, [she] has had a very difficult time in keeping her house payments current and is behind on certain of her bills at this time. So it appears to me that at this time I cannot make that finding and as such I’m going to have to deny Mr. Glithero’s request for a reduction in child support at this time.” (Emphasis supplied.)

Father’s counsel then asked the court to “reconsider whether there is in fact evidence in the record from Mr. Glithero that there isn’t a hardship for the children.” The court denied that request, saying:

“I just want to make clear for the record that if I did improperly state it, what my intention was in effect to say was that the hardship on the obligor [father] has to be greater than the hardship on the children to allow a modification and it’s my finding that there was not sufficient evidence on that point for me to find that the hardship on the father outweighed the hardship on the children if I were to allow a reduction in child support.” (Emphasis supplied.)

As framed by the court’s ruling and by the parties’ briefs, the narrow issue on appeal is whether father carried his burden of proving that the hardship that he will suffer if the motion to decrease support is not allowed outweighs any hardship that the children will experience if support payments are reduced.

We begin by noting that the trial court applied the correct legal standard in the modification proceeding. The relevant statute, ORS 107.135(3)(b), provides in part:

“If the motion for modification is one made by the obligor to reduce or terminate support, and if the obligee opposes the motion, the court shall not find a change in circumstances sufficient for reconsideration of support provisions, if the motion is based upon a reduction of the obligor’s financial status resulting from the obligor’s taking voluntary retirement, partial voluntary retirement or any other voluntary reduction of income or self-imposed curtailment of earning capacity, if it is shown that such action of the obligor was not taken in good faith but was for the primary purpose of avoiding the support obligation.”

In Willis and Willis, 314 Or 566, 840 P2d 697 (1992), the court applied that statute to an incarcerated father, found that the father’s reduction in income was made in good faith, and reaffirmed that courts must consider each motion for modification “on a case-by-case basis, to determine whether the obligor has shown a ‘substantial change in economic circumstances,’ ORS 107.135(2)(a), which is 'sufficient for reconsideration of support provisions,’ ” ORS 107.135(3)(b).” Id. at 571 (emphasis supplied).

Although the phrase “sufficient for reconsideration” is not defined in the text of the statute, the well-established case law in this area provides the following contextual meaning: A support obligation will not necessarily be reduced even if the obligor’s reduction in income was in good faith; in each case, the court must also consider the relative economic circumstances of the children and the obligor. Nelson and Nelson, 225 Or 257, 357 P2d 536 (1960); see also Hogue and Hogue, 115 Or App 697, 700, 839 P2d 760 (1992), mod 118 Or App 89, 846 P2d 422 (1993) (“[E]ven when an obligor acts in good faith, child support will not necessarily be modified. We evaluate the ‘particulars of his changed circumstances, considering all the relevant factors,’ as well as [the child’s] welfare.”) (citation omitted); Zorn and Zorn, 112 Or App 222, 224-25, 828 P2d 481 (1992) (even assuming that father’s voluntary reduction in income was in good faith, he provided no evidence concerning how a reduction would affect the child and therefore failed to show that the hardship to him outweighed the hardship to the child); Gay and Gay, 108 Or App 121, 125, 814 P2d 543 (1991) (“[b]ecause the welfare of the child is the paramount consideration,” voluntary reduction in obligor’s income may justify reduction in child support if the change is made in good faith and the hardship to obligor, if decrease is not allowed, outweighs hardship to children that the reduction would cause); Jones and Jones, 106 Or App 264, 268, 806 P2d 1170 (1991) (Even where father’s reduction in income was in good faith, “we examine the particulars of his changed circumstances, considering all the relevant factors, to determine whether a modification is warranted. We consider the children’s economic circumstances and father’s as well. Additionally, we must consider the position of mother, who might be faced with the challenge of making ends meet * * *.”) (citation omitted).

Father, on appeal, asserts that the evidence was sufficient to show that his hardship will outweigh the children’s. Below, he sought to show that, as a result of funds that wife receives from her live-in boyfriend, wife’s income is considerably greater than she stated on her uniform support affidavit; he also sought to show that her expenses are lower than she claims. Although there was some testimony to support those allegations, there was also testimony that, in order to make the mortgage payment, wife has been unable to pay her telephone and electric bills. Wife sought to show that husband’s discretionary expenditures include trips to Utah, substantial long distance phone charges and $70 per month on cigarettes.

Having reviewed the parties’ vitriolic testimony and the voluminous trial court record, it appears that father’s strongest argument is that at trial, he testified that in his opinion, the children would not suffer and that testimony was not rebutted. Wife on appeal makes the unhelpful argument that, simply because “the family [came] to rely upon” the income that father obtained by working overtime, “it would be a gross hardship on the children to allow petitioner to reduce his child support obligation by virtue of this voluntary change of jobs.”

Neither side’s argument is persuasive and neither presents a clear factual basis for reaching a conclusion on the question of relative hardship. All that can be said in the final analysis is that, given his discretionary expenditures, father did not show that the continued payment of his current child support obligation will cause him to suffer any actual hardship, and there was evidence that the children might suffer from a reduction in support. Therefore, we affirm the trial court’s denial of father’s motion. Zorn and Zorn, above.

Father’s other assignments of error, which relate to wife’s award of attorney fees and a modification of his support obligation to reflect his brief period of unemployment, are without merit and need not be discussed.

We now turn to the arguments of the dissent. First, the dissent makes much of the fact that ORS 107.135 does not explicitly state that courts must consider the relative hardships of the parties, when ruling on a motion to modify child support. The dissent erroneously takes that to mean that courts cannot consider relative hardships. It is well established that the text of a statute must be viewed in the light of judicial interpretations, Alto v. State Fire Marshal, 319 Or 382, 392, 876 P2d 774 (1994) (when interpreting a statute, an analysis of “text and context” includes “prior interpretation [s] of a statute”); Kilminster v. Day Management Corp., 323 Or 618, 629-30, 919 P2d 474 (1996) (stating principle); Errand v. Cascade Steel Rolling Mills, Inc., 320 Or 509, 527, 888 P2d 544 (1995) (Graber, J., dissenting) (“When reading the text of a statute, certain principles apply, including the principle that the text means what this court’s prior interpretation thereof states.”); Davis v. O’Brien, 320 Or 729, 741, 891 P2d 1307 (1995) (“As part of the text and context, the court includes consideration of its own prior interpretations of the statute.”), and the cases in this area — Nelson, Hogue, Zorn, Gay and Jones — clearly have included the weighing of hardships in child support modifications. Because these are suits in equity and the interests of the children are of paramount importance, it is appropriate that the court take into consideration the effect that a reduction in support will have on the children.

The dissent eschews this application of equitable principles, apparently based on the fact that in a footnote in Willis, the Supreme Court said that we should not have employed the doctrine of “unclean hands” when Willis was before this court. 314 Or at 569 n 1. The dissent understands that to be a Supreme Court pronouncement that courts no longer have the authority to apply any equitable considerations in child support modification proceedings. As a consequence, the dissent ignores the fact that our novel approach in Willis, which was reversed by the Supreme Court, had no precedential support; indeed, our holding in that case required that we overrule one of our earlier cases. See Willis and Willis, 109 Or App 584, 586, 820 P2d 858 (1991). In contrast to the unconventional approach that we employed in Willis, since 1960 Nelson and its progeny have established, applied and reiterated the rule that the economic welfare of children is a relevant consideration in deciding whether to modify a child support award. The Supreme Court’s footnoted comment in Willis simply informed us that our unprecedented use of the “unclean hands” doctrine in a support modification proceeding was not a viable basis for deciding that the incarcerated father’s reduction in income had been made in bad faith. That makes sense, because a supporting parent’s criminal wrongdoing may not have been for the purpose of reducing child support and does not establish that the children will be economically harmed thereby.²

Moreover, the footnote on which the dissent relies cannot properly be understood without reference to its placement in the Supreme Court’s Willis opinion. The court stated, in the text of that opinion, that ORS 107.135(3)(c) “lists factors to consider in deciding the issue of‘good faith.’ ” 314 Or at 569. It then inserted its footnoted comment that the equitable doctrine of unclean hands, on which this court had relied, “does not bar a party from seeking a modification of the child support provisions of a dissolution judgment[.]” Id. at 569 n 1. In context, then, that footnote simply tells us that equitable considerations are not determinative of whether the payor’s reduction in income was made in good faith. But good faith is not at issue in the present case; it is clear that father’s reduction was in good faith.

Finally, it bears noting that the dissent’s approach, if adopted, would have the effect of transforming a discretionary statute into one that is mandatory. By its very terms, ORS 107.135 does not require a court to recalculate an award of support if a party shows that it has made a good faith reduction in income. The statute simply provides examples of what is “sufficient” for a court to reconsider a support order. Rather than stating that in the presence of certain facts a court must reconsider support, it states that certain facts are enough to justify reconsideration. The dissent also forgets that the act of reconsideration does not require a wholesale adoption of the moving party’s position. A court may reconsider its original award and conclude that it remains correct.

Affirmed.

1 We note that the parties’ briefs fail to state what father was originally ordered to pay, what he is actually paying and what he hopes to pay under a reduced support obligation award. From our review of the entire record, it appears that father was ordered to pay $584 per month as child support, but that he is actually paying either $455 or an average of $430 per month, depending on which party’s testimony is believed. The parties do not discuss the import, if any, of this apparent discrepancy between amount ordered and amount paid.

2 In Willis, there was no need to weigh the relative hardships that would be created by reducing the incarcerated father’s support obligation because the father was unable to produce any income.