In the Matter of Marriage of Petersen and Petersen

888 P.2d 23, 132 Or. App. 190, 1994 Ore. App. LEXIS 1959

• Court: Court of Appeals of Oregon
• Decided: December 28, 1994
• Docket: 92-676; CA A79658
• Status: Published

Opinions

EDMONDS, J.

Husband appeals a dissolution of marriage judgment, which incorporates the terms of a settlement agreement that the parties made several months before trial. At trial, husband objected to various provisions of the agreement, but the trial court adopted it in its entirety. On appeal, husband challenges the child support, spousal support, property division and visitation provisions of the judgment. On de novo review, ORS 19.125(3), we affirm.

The parties were married for ten years. They are the parents of two children, ages 7 and 4. When the parties decided to dissolve their marriage, they discussed and generally agreed on the terms of a property settlement agreement. Those discussions commenced in August of 1992. In order to finalize the agreement, wife went to an attorney, who memorialized the agreement for the parties. Husband reviewed the written agreement, requested changes and eventually signed the agreement in October, 1992. The attorney who prepared the agreement told husband that he should obtain his own attorney if he felt he needed independent advice. Husband declined that invitation. Among other things, the agreement provided that wife would receive custody of the children, and that husband would pay $1,000 a month for child support and would provide medical and dental insurance coverage for the children.

After the agreement was signed, wife filed a petition for dissolution of the parties’ marriage which requested relief in accordance with the agreement. However, husband filed a response. At trial, husband argued that the trial court should not adopt the terms of the agreement, because they were inequitable. Specifically, he argued that he was unaware of the extent of the marital obligations when he made the agreement. The trial court rejected husband’s argument. It made this finding regarding the amount of child support:

“The child support guidelines presume that the total child support amount in this action is $642.84. However, pursuant to ORS 25.280, the court determines that amount to be unjust or inappropriate, and the presumption of its correctness is rebutted because the parties entered into a Property Settlement Agreement wherein [wife] and [husband] both agreed that [husband] was able to and was willing to pay the increased amount. In consideration of this circumstance, [husband] is ordered to pay monthly child support of $1,000.”

On appeal, husband makes assignments of error concerning child support, spousal support, property division and visitation. Except for the assignment of error regarding the amount of child support, husband’s arguments do not require discussion. Husband argues that the trial court had no authority to depart from the presumed amount of child support under the Uniform Child Support Guidelines on the basis of the parties’ agreement. He says:

“The Guidelines allow rebuttal of the presumed child support award only where one of 10 listed factors is present. That the parties at one time agreed — and by the time of trial, ho longer agreed — to a different amount is not one of the 10 factors. Therefore, the trial court’s refusal to follow the Guidelines was error.”

ORS 107.105(l)(c) authorizes the court to order payment of child support in such amounts as constitute a just and proper contribution toward the support and welfare of the child. It further provides:

“The court, in determining the amount to be paid, shall use the scale and formula provided for in * * * ORS 25.280.”

ORS 25.280 provides, in part:

“In any judicial or administrative proceeding for the establishment or modification of a child support obligation under ORS [chapter 107], the amount of support determined by the formula * * * shall be presumed to be the correct amount of the obligation. This shall be a rebuttable presumption and a written finding or a specific finding on the record that the application of the formula would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption. The following criteria shall be considered in making the finding:

“(1) Evidence of the other available resources of a parent;

“(2) The reasonable necessities of a parent;

“(3) The net income of a parent remaining after with-holdings required by law or as a condition of employment;

“(4) A parent’s ability to borrow;

“(5) The number and needs of other dependents of a parent;

“(6) The special hardships of a parent including, but not limited to, any medical circumstances of a parent affecting the parent’s ability to pay child support;

“(7) The needs of the child;

* ‘ (8) The desirability of the custodial parent remaining in the home as a full-time parent and homemaker;

“(9) The tax consequences, if any, to both parents resulting from spousal support awarded and determination of which parent will name the child as a dependent; and

“(10) The financial advantage afforded a parent’s household by the income of a spouse or another person with whom the parent lives in a relationship similar to husband and wife.” (Emphasis supplied.)

It is apparent from the trial court’s statement that it considered the provisions of ORS 25.280. It made a written finding that the presumed amount was “unjust or inappropriate,” pursuant to the direction of the statute. Husband and the dissent argue that the trial court’s reliance on the parties’ agreement is not permitted by ORS 25.280, because it is not among the factors listed in the statute as a basis for departing; thus, the trial court was without authority to impose child support in the amount of $1,000, but instead was required to impose the presumed correct amount of $642. That argument raises an issue of statutory construction.

The goal of any statutory analysis is to discern the legislature’s intent. The issue in this case is whether the legislature intended the criteria used in ORS 25.280 to be the exclusive criteria in determining whether the presumed amount of support is rebutted. That analysis begins with the text and context of the pertinent statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). ORS 25.280 says that “the following criteria shall be considered in making the finding” that the presumed amount of support is “unjust or inappropriate.” (Emphasis supplied.) We agree with the dissent’s characterization that “the provision does not clearly require the court to base a departure from the presumption only on the criteria enumerated.”¹ 132 Or App at 204. Thus, on its face, although the statute mandates “consideration” of certain criteria, it does not forbid the consideration of other factors. That omission is significant.

ORS 174.010 says that the office of a judge is “simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted * * *. ” In Barrett et al. v. Union Bridge Co., 117 Or 566, 245 P 308 (1926), the court considered what is necessary under the predecessor to ORS 174.010 before a court could add words to a statute:

“Section 715, Or. L., directs that the courts in the construction of statutes, are ‘simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, nor to omit what has been inserted.’ We ought never to import into a statute words which are not to be found there, unless from a careful consideration of the entire statute it be ascertained that to import such words is necessary to give effect to the obvious and plain intention and meaning of the legislature. Under the directions of the statute last referred to, we are not at liberty to give effect to any supposed intention or meaning in the legislature, unless the words to be imported into the statute are, in substance at least, contained in it.” 117 Or at 570. (Emphasis supplied.)

Thus, because ORS 25.280 does not say that the listed criteria are exclusive, we can deem them to be exclusive only if exclusivity is necessary to give effect to the intention of the legislature as expressed in the text and context of the statute.

ORS 25.280 is part of the statutory scheme enacted by the legislature in response to the federal Family Support Act of 1988. ORS 25.270 explains:

“The Legislative Assembly finds that:

“(1) The federal Family Support Act of 1988 mandates that the state must establish a formula for child support award amounts that is applicable in any judicial or administrative proceeding for the award of child support.

“(2) It is further mandated that the amount of child support determined by the formula must he presumed to be the correct amount unless rebutted by a specific finding on the record that the application of the formula would be unjust or inappropriate in the particular case as determined under criteria established by the state.

“(3) It is also mandated that the formula is to be reviewed at least once every four years to insure that the application of the formula results in appropriate child support awards.

“(4) There is a need for uniformity in child support awards, and child support awards often are based upon noneconomic factors and are inadequate in terms of the needs of the child.

“(5) The Support Enforcement Division of the Department of Justice is the appropriate agency to establish the required formula.”

Subsection (4) tells us that the federal Family Support Act is intended to prevent arbitrary awards of child support that are not based on economic factors and that do not supply the needs of the child. To that end, the federal government requires states to promulgate guidelines for the determination of the amount of child support. The state has complied with the federal law by enacting ORS 25.270 et seq.

The dissent asserts that the Family Support Act of 1988 requires that the guidelines, when promulgated, be the only criteria on which the amount of support can be determined. See 132 Or App at 203. However, nothing in the language on which it relies suggests that intention. The Act and the legislative history underlying it use the word “guidelines.” When the words used in a statute have an ordinary meaning that reveals the intent of the drafters, there is no need to resort to rules of statutory construction or other aids to interpretation. Whipple v. Howser, 291 Or 475, 482, 632 P2d 782 (1981). The word “guidelines” has an ordinary meaning.² Webster’s Third New International Dictionary 1009 (1976), defines a guideline as “an indication or outline of future policy or conduct (as of a government).” The Family Support Act is merely that; an outline of general policy that directs the states to enact a formula for child support awards that will meet the goals expressed in ORS 25.270(4). It is apparent that Congress intended no more than a broad general directive to the states, leaving it to them to adopt specific standards.

Although the legislature could have made the criteria in ORS 25.280 exclusive, it chose not to do so expressly. As the dissent correctly notes, the legislature knows how to make a statutory requirement exclusive or nonexclusive. See former ORS 107.105(1)(c). The fact that it chose not to use express language to make the enumerated criteria exclusive leaves a question of whether such an intent can be implied.³

First, it is not necessary to interpret the criteria as exclusive in order to give effect to the intention of the legislature as expressed in ORS 25.270(4). What the statutory scheme is intended to prohibit is the use of noneconomic factors in the determination of the amount of child support; factors that have no relevance to the needs of the child. When ORS 25.280 and ORS 25.270(4) are read together, it is apparent that the legislature required only that the trial court “consider” the enumerated economic factors. Had it intended that the courts are prohibited from considering other economic factors, it would have said so expressly by using the word “only,” or similar language.

Second, ORS 25.280 must be read together with ORS 107.105(l)(c) in determining the authority of a trial court to award an amount of child support in excess of the presumed amount, based on the agreement of the parties. When the legislature enacted ORS 25.270 et seq, it left intact certain language in ORS 107.105(1)(c). ORS 107.105(1)(c) provides that the court may decree “such amount of money, in gross or installments, or both, as constitutes just and proper contribution toward the support and welfare of such children.” Then it says, “in determining the amount to be paid, [the court] shall use the scale and formula provided for in ORS 25.275 and 25.280.” If we were to adopt husband’s argument, we would be ignoring the legislature’s direction that the amount of child support to be paid by a parent is to be based on a standard of “just and proper” contribution. Moreover, despite the dissent’s arguments to the contrary, the language of OAR 137-50-330 merely tracks the language of ORS 107.105. OAR 137-50-330(2)(a) provides that the presumption is rebutted “by a finding that the amount is unjust or inappropriate based upon the criteria * * (Emphasis supplied.) Like the statute, the criteria are nonexclusive factors to be considered. The directive remains that the court set a just and proper child support amount.

Based on our reading of the statutes, the obvious intent of ORS 107.105(1)(c) and ORS 25.280 is to provide for an amount of support that is in the best interest of the dependent child. It would be inconsistent with that legislative purpose to prohibit a trial court from considering other nonenumerated economic factors that are relevant to the needs of the dependent child. Thus, we need go no further than the text and context of ORS 25.280 to determine that the legislature has not expressly or implicitly said that trial courts are forbidden from considering other nonenumerated economic factors.

The dissent says:

“Nevertheless, prior decisions of the Supreme Court and this court remove any doubt that that is precisely what the law requires.” 132 Or App at 204.

First, the dissent relies on Perlenfein and Perlenfein, 316 Or 16, 24, 848 P2d 604 (1993). In that case, the issue was whether undistributed income of a closely held corporation that was attributable to a minority shareholder of the corporation for income tax purposes, also was attributable to the shareholder for the purposes of determining his child support obligation. One of the arguments made by the shareholder husband was that the result would be unfair if “gross income” as defined by the guidelines was not limited to “available income.” In response to that argument, the court noted that the act contemplates adjustment of the presumed amount to avoid an unjust result “by reason of various listed criteria.” 316 Or at 24. The opinion does not purport to decide the issue in this case: whether the court can consider factors outside the listed criteria in ORS 25.280. The dissent seizes on language that is unrelated to the issue in this case.

Second, the dissent relies on Rossi and Rossi, 128 Or App 536, 876 P2d 820 (1994). There is language in that case that supports husband’s and the dissent’s position. There, we said:

“Consistent with the statute, the uniform child support guidelines provide that child support must be calculated in accordance with the formula required by the statute, and that, only if the trial court expressly finds that the amount required by the formula is unjust or inappropriate, based on one or more of the ten statutory criteria, can the trial court depart from the amount determined by the formula. OAR 137-50-330(2).

“On its face, the statute and the regulations impose a mandatory, mechanical, two-step process. When setting child support amounts, trial courts must use the formula required by the statute unless the amount dictated by the formula is expressly found to be unjust or inappropriate based on one or more of the ten factors enumerated in the statute.” 128 Or App at 543. (Emphasis in original.)

The dissent invokes the principle of stare decisis and contends that we ought not to disavow the above language in Rossi. For purposes of considering its value as precedent, it is important to review the facts in Rossi which are different from the facts here. In that case, the trial court required the wife to file a satisfaction of judgment for one month’s child support to offset the husband’s obligation in the event that the husband incurred transportation costs during summer vacation. The trial court made the satisfaction contingent on expenses actually being incurred. The majority opinion reasoned that the trial court lacked authority to make the satisfaction conditional and to give the husband the credit, because it had made no written or specific findings that the presumptive award was unjust or inappropriate. 128 Or App at 544. Here, in contrast to Rossi, this trial court did make a written and specific finding as to why the presumptive award was unjust and inappropriate and, thus, complied with ORS 25.280.

The dissent is unpersuaded by the distinction. It complains:

“According to the majority, all that is required by ORS 25.280 is that the trial court say that it ‘considered’ the enumerated factors. Then, the court is free to justify its decision to depart from the guidelines on any basis it chooses.

“I encourage the members of this court and the members of the domestic relations bar to think about that proposition carefully. If the majority is correct, then the guidelines and the process that they prescribe are completely illusory. All a court need do is utter certain magic words — T have considered the factors in ORS 25.280’ — and it is free to set child support as it pleases.” 132 Or App at 210.

Whatever fears the dissent has about trial courts exercising their discretion is unfounded. ORS 25.270(4) clearly requires that the determination of child support amounts be based on economic factors that bear on the needs and the best interests of children, and the trial court’s authority is circumscribed to that extent. We are confident that the trial bench in Oregon will exercise its discretion properly in the light of those guidelines. Moreover, the quoted language from Rossi is a mistaken interpretation of legislative intent unsupported by the language of the statutes as we have previously illustrated. We choose not to sacrifice a correct interpretation of legislative intent on the alter of stare decisis, and we disavow the proposition that trial courts are forbidden under ORS 25.280 from “considering” nonenumerated factors.

The dissent also says that our interpretation of ORS 25.280 is contrary to the legislative history underlying the statute. It offers the testimony of a representative of the Support Enforcement Division before a legislative committee in support of its argument. See 132 Or App at 207. First, resort to legislative history is inappropriate under ORS 174.010 unless the language and context of the statute do not provide sufficient insight into legislative intent. State ex rel Kirsch v. Curnutt, 317 Or 92, 97, 853 P2d 1312 (1993). Here, ORS 25.280 and its companion statutes clearly do not say that the enumerated criteria are the only factors that the trial court may consider, and their text and context do not require that interpretation to give effect to the intention of the legislature as expressed in the statutes. However, even if it is permissible to refer to legislative history to construe ORS 25.280, the testimony relied on by the dissent is not persuasive that the legislature intended the criteria to be exclusive. In substance, the testimony simply says that the trial court must “reference” the criteria in deciding whether to award the presumed amount. The language of ORS 25.280 tracks accordingly when it says the trial court must “consider” the specified criteria in arriving at its decision.

Beyond all of the specific arguments made by husband and the dissent, there is a more fundamental reason why those arguments do not prevail. For the sake of argument only, we will assume that the language in ORS 25.280 and the other statutes do not clearly answer the question of whether the legislature intended the enumerated criteria to be exclusive or nonexclusive. When it is necessary to construe an ambiguous statute, we discern the legislature’s intent and interpret the statute in a manner that will be reasonable and consistent with the legislature’s general policy. McKean-Coffman v. Employment Div., 312 Or 543, 549, 824 P2d 410, mod, 314 Or 645, 842 P2d 380 (1992). As we have said, ORS 25.270(4) expresses the policy that child support awards be based on economic factors that address the needs of the dependant children. ORS 25.270 et seq spring from the perception that there is a need for uniformity in child support awards because, previously, those awards had been based on noneconomic factors and were inadequate to meet the needs of the child. An increase in the amount of child support above the presumed amount is not inconsistent with the legislative policy underlying the statute. The agreement in this case was obviously based on economic factors and presumably will more adequately supply the needs of the child than would the presumed amount. If a child’s parents agree that a greater amount of support than the presumed amount is appropriate to meet the needs of their children, why would the legislature have intended ORS 25.280 to be an impediment to that result? The dissent’s interpretation would have the opposite effect; it is an interpretation that is inconsistent with the policy of the federal Family Support Act, as well as the Oregon statutory scheme enacted pursuant to it.

“I do not read the law to prohibit courts from accepting settlement agreements as to amounts of child support. I do insist, however, that the courts cannot blindly accept such agreements without expressly evaluating them under the criteria enumerated in the statute and the guidelines. Any other reading of the law makes the determination of child support an exercise of unfettered discretion, which is exactly what the guidelines were enacted to prevent.” 132 Or App at 211 n 4.

That suggests that either this trial court did not consider the enumerated factors or that it did not make a good enough record. Again, the dissent would add requirements to ORS 25.280 that are not there. The only finding that the statute requires to be in writing or on the record is the finding that the presumed amount is “unjust” or “inappropriate.” The trial court did exactly that, and its ruling demonstrates that it did consider the requirements of ORS 25.280.

In summary, we hold that the trial court did not exceed its authority under ORS 25.280 when it adopted the parties’ agreement for payment of child support in an amount greater than the presumed amount under the guidelines. Although the trial court and we, on review, are at liberty to reject the parties’ agreement and require husband to pay the presumed amount of support, we decline to do so, findingthat the agreement is in the best interests of their children.

Affirmed. Costs to wife.

1 The dissent says that it accepts that interpretation “for the sake of argument.”

2 In construing a statute, words of common usage are to be given their ordinary meaning. Perez v. State Farm Mutual Ins. Co., 289 Or 295, 299, 613 P2d 32 (1980).

3 The dissent infers from the absence of language in the statute that the factors are nonexclusive and that, therefore, the legislature must have intended them to be exclusive. However, we are forbidden by ORS 174.010 from making such an implication, unless the concept of “exclusivity” is necessary to give effect to the intention of the legislature as expressed in the language of the statute and its companion statutes. Barrett el al. v. Union Bridge Co., supra, 117 Or at 570; see also Porter v. Hill, 314 Or 86, 91, 838 P2d 45 (1992).