McMurchie

304 P.3d 751, 256 Or. App. 712, 2013 WL 2250581, 2013 Ore. App. LEXIS 553
CourtCourt of Appeals of Oregon
DecidedMay 22, 2013
DocketDR0209201; A146713
StatusPublished
Cited by5 cases

This text of 304 P.3d 751 (McMurchie) 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
McMurchie, 304 P.3d 751, 256 Or. App. 712, 2013 WL 2250581, 2013 Ore. App. LEXIS 553 (Or. Ct. App. 2013).

Opinion

DUNCAN, J.

Mother appeals the trial court’s supplemental judgment modifying child support; she asserts that the amount of child support the trial court ordered father to pay is too low. Father cross-appeals; he asserts that the amount is too high. Both parties contend that the trial court erred in calculating father’s presumed income.1 In addition, mother contends that, even if the trial court did not err in calculating father’s presumed income, it erred in failing to consider father’s other available resources — specifically, his portion of a $3.3 million lottery prize — when determining whether the presumed child support obligation based on father’s presumed income was unjust or inappropriate.

For the reasons explained below, we conclude that the trial court erred in calculating father’s presumed income. Therefore, we remand for the trial court to determine whether the presumed child support obligation based on father’s properly calculated presumed income is unjust or inappropriate.

To provide necessary context for the parties’ arguments on appeal, we begin by reviewing the statutes and rules that govern how a parent’s child support obligation is to be calculated. ORS 25.275 establishes the statutory criteria for determining the amount of a child support award. ORS 25.275(1) provides, “The Division of Child Support of the Department of Justice shall establish by rule a formula for determining child support awards in any judicial or administrative proceeding.” The subsection further provides that, “ [i] n establishing the formula, the division shall take into consideration” certain criteria, including “ [a] 11 earnings, income and resources of each parent,” ORS 25.275(1)(a), and “[t]he earnings history and potential of each parent!,]” ORS 25.275(1)(b). In addition, ORS 25.275(2)(a) provides that the formula must comply with certain policies, including that “[t]he child is entitled to benefit from the income of both parents to the same extent that the child would have benefited had the family unit remained intact or if there had been an intact family unit consisting of both parents and [715]*715the child.” ORS 25.280 provides that “the amount of support determined by the formula established under ORS 25.275 is presumed to be the correct amount of the obligation,” but that presumption “is a rebuttable presumption and a written finding or specific finding on the record that the application of the formula would be unjust or inappropriate in a particular case is sufficient to rebut the presumption.” “[C]riteria [that] shall be considered in making the finding” include:

“(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;
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“(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.”

ORS 25.280.

As directed by ORS 25.275(1), the Division of Child Support (the division) has established a formula for determining child support awards. The formula is set out in the Oregon Child Support Guidelines (the guidelines), OAR 137-050-0700 to 137-050-0765. As relevant here, the formula has three basic steps. OAR 137-050-0710. The first step is to determine the parents’ presumed incomes. OAR 137-050-0710(4), (5); OAR 137-050-0715; OAR 137-050-0720. The second step is to use the parents’ presumed incomes to determine their presumed support obligations. OAR 137-050-0710(6), (7); OAR 137-055-0025. The third step is to determine if the presumed support obligations are unjust or inappropriate. OAR 137-050-0710(15); OAR 137-050-0760. In accordance with ORS 25.280, the guidelines identify several “rebuttal factors” relevant to whether a parent’s presumed support obligation is unjust or inappropriate, including “[e]vidence of the other available resources of the parent[.]” OAR 137-050-0760(1)(a). “The rebuttal factors may [716]*716be applied by adjusting the income of a parent, the costs for the child or the presumed support amount.” OAR 137-050-0760(1).

With those statutes and rules in mind, we turn to the facts of this case. In 2002, mother and father divorced, and the trial court ordered father to pay child support in the amount of $1,057 per month and to provide health insurance for the parties’ two children, who were born in 1989 and 1996.

In 2006, father filed a written request with the division, asking that his child support obligation be reviewed and modified. See ORS 25.287 (providing for periodic reviews of child support obligations and for reviews based on substantial changes in circumstances). The division prepared an administrative order reducing father’s support obligation to $497 per month, and the trial court entered the order.

Both mother and father remarried. In March 2008, father’s current wife won the Oregon Lottery, claiming a prize of $3.3 million. Father’s wife purchased the winning lottery ticket with marital funds, and she and father shared the winnings. After paying federal and state taxes, they deposited the remaining winnings into joint accounts. They used some of the winnings to buy a house and to make large cash gifts to family and friends. They also used some of the winnings to pay father’s debts, including past due child support and interest on that past due amount.

Thereafter, father and his wife placed most of the remaining winnings in investment accounts, held in both their names. Their investments, which primarily consist of municipal bonds, generate approximately $40,000 in interest each year. Father and his wife pay their living expenses with that interest, as neither works. Father has been unemployed since 2001 and has been convicted of several felonies. Thus, the trial court found that father was “virtually unemployable in his former field,” computer network administration.

In December 2008, the division filed a motion in the Clackamas County Circuit Court to set aside the 2006 [717]

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Related

In re the Marriage of DeShaw
369 P.3d 1194 (Court of Appeals of Oregon, 2016)
In re the Marriage of Carleton
366 P.3d 365 (Court of Appeals of Oregon, 2015)
In re the Marriage of Adams
360 P.3d 742 (Court of Appeals of Oregon, 2015)
In re the Marriage of Morgan
344 P.3d 81 (Court of Appeals of Oregon, 2015)
In re the Marriage of Gilmore
311 P.3d 970 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
304 P.3d 751, 256 Or. App. 712, 2013 WL 2250581, 2013 Ore. App. LEXIS 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmurchie-orctapp-2013.