In re the Marriage of McGinley

19 P.3d 954, 172 Or. App. 717
CourtCourt of Appeals of Oregon
DecidedFebruary 28, 2001
DocketD8712-68732; CA A101792
StatusPublished
Cited by1 cases

This text of 19 P.3d 954 (In re the Marriage of McGinley) 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 McGinley, 19 P.3d 954, 172 Or. App. 717 (Or. Ct. App. 2001).

Opinion

ARMSTRONG, J.

Father appeals from a judgment modifying his child support obligation for his son and affirming his support obligation for his daughter, who is a student at a private liberal arts college. Mother cross-appeals from the judgment. She challenges the trial court’s refusal to increase father’s support obligation for daughter based on a decrease in daughter’s financial aid award. On de novo review, we affirm in part and reverse in part.

The court entered a judgment in 1988 dissolving the parties marriage. The dissolution judgment awarded custody of the parties’ two children to mother and ordered father to pay both child and spousal support. Both parties sought to modify the dissolution judgment in 1996 and again in 1997. In response to the first motion, the trial court terminated spousal support due to changed circumstances, terminated child support for son based on son’s incarceration in the state correctional system, and increased father’s support obligation for daughter based on her educational expenses as a child attending school, ORS 107.108. In its ruling on the second motion for modification, the trial court refused to increase father’s support obligation for daughter because it concluded that no substantial change of economic circumstances had occurred; it reinstated father’s support obligation for son as a result of son’s transitional release from state boot camp; and it declined to terminate father’s support obligation for daughter based on father’s contention that ORS 107.108 violates the state and federal constitutions.

Father appeals, assigning error (1) to the trial court’s refusal to hold that ORS 107.108 violates the state and federal constitutions and (2) to the amount of child support that the court ordered for son. Father argues that ORS 107.108 violates the Oregon Constitution’s Equal Privileges and Immunities Clause, Or Const, Art I, § 20, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. With regard to son’s support, father argues that the trial court improperly deviated from [720]*720the Uniform Child Support Guidelines without entering findings to support the deviation. ORS 25.280. Mother cross-appeals. She assigns error to the trial court’s refusal to increase father’s support obligation for daughter based on a decrease in daughter’s financial aid award. She alleges that the trial court committed an error of law in not recognizing the decrease as a change in circumstances that was sufficient to justify a modification. ORS 107.135(2)(a) (1997).

We conclude that ORS 107.108 does not violate either the state or federal constitutional guarantee of equal treatment. Additionally, we conclude that the decrease in daughter’s financial aid award did not constitute an unanticipated substantial change in economic circumstances. ORS 107.135(2)(a) (1997). Accordingly, we affirm the child support award for daughter. With regard to the support award for son, we agree with father that the trial court improperly deviated from the guidelines without making findings to support its decision to do so. ORS 25.280. We therefore remand that portion of the judgment to the trial court for entry of findings or modification of the award.

Before discussing the merits of the case, we first address mother’s concern that both father’s constitutional challenge to ORS 107.108 and mother’s cross-appeal may be moot as a result of father having fulfilled his statutory support obligation to daughter since the court entered its second modification judgment. “A case becomes moot for the purpose of an appeal when, because of a change of circumstances prior to the appellate decision, the decision would resolve merely an abstract question without practical effect.” State ex rel Juv. Dept. v. Holland, 290 Or 765, 767, 625 P2d 1318 (1981) (citations omitted). Because we have the power to make any modification of father’s support obligation for daughter retroactive to the date that father moved to modify the dissolution judgment, our decision could affect father’s support obligation for daughter. See Pedroza and Pedroza, 128 Or App 102, 107, 875 P2d 478 (1994) (“[Mjodification of a support order can be made retroactive to the date of the filing of the motion to modify.”) (citations omitted). Consequently, that issue is not moot.

[721]*721In our analysis of the merits, we turn first to father’s state and federal constitutional challenges to ORS 107.108.1 ORS 107.108(1) provides in relevant part that, in cases of dissolution or separation, “the court may enter an order against either parent, or both of them, to provide for the support or maintenance of a child attending school.” The statute defines a “child attending school” as

“a child of the parties who is unmarried, is 18 years of age or older and under 21 years of age and is a student regularly attending school, community college, college or university, or regularly attending a course of professional or technical training designed to fit the child for gainful employment. A child enrolled in an educational course load of less than one-half that determined by the educational facility to constitute ‘full-time’ enrollment is not a ‘child attending school.’ ”

ORS 107.108(8). Enacted in 1973, ORS 107.108 reflects Oregon’s commitment to make higher education as available as possible to its citizens. Our state’s tradition of requiring divorced parents to support their children while they attend college goes back at least to the Supreme Court’s 1941 decision in Jackman v. Short, 165 Or 626, 638-39, 109 P2d 860 (1941), in which the court held that the trial court properly required a noncustodial father to help pay for his 18-year-old daughter to attend Oregon State College.2 In so holding, the court emphasized the importance of a college education in our society.3 Since the court decided Jackman, the importance of a college education to success in our society has [722]*722undoubtedly become greater. See, e.g., Charles F. Willison,

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Related

MATTER OF MARRIAGE OF McGINLEY
19 P.3d 954 (Court of Appeals of Oregon, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
19 P.3d 954, 172 Or. App. 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-mcginley-orctapp-2001.