State ex rel. Department of Human Resources v. Fairchild

979 P.2d 768, 159 Or. App. 517, 1999 Ore. App. LEXIS 522
CourtCourt of Appeals of Oregon
DecidedApril 14, 1999
Docket97399; CA A100942
StatusPublished
Cited by1 cases

This text of 979 P.2d 768 (State ex rel. Department of Human Resources v. Fairchild) 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
State ex rel. Department of Human Resources v. Fairchild, 979 P.2d 768, 159 Or. App. 517, 1999 Ore. App. LEXIS 522 (Or. Ct. App. 1999).

Opinion

DE MUNIZ, P. J.

Mother appeals from a judgment amending father’s child support obligation in which the trial court departed from the Child Support Guidelines to reduce father’s support obligation because he had incurred debts in reliance on mother’s representation that the children were to be adopted. We review de novo, ORS 19.415(3), and reverse.

Mother gave birth to twin girls on March 2, 1993. Mother and father were never married; however, paternity is not disputed. Father lives with his wife, their two daughters, ages four and five at the time of trial, and his step-daughter. Father did not have any direct contact with mother after the twins were born, but his wife has had several telephone conversations with her and visited her and the twins a couple of times. Father initially did not pay child support as it was his understanding that mother did not want child support from him. In September 1995, father learned through a letter from mother that she had married and moved to Connecticut. In the letter, mother requested that father relinquish his parental rights to the twin girls so that mother’s husband could adopt them. Because mother’s husband was in military service, the adoption was to be processed through the office of the Judge Advocate General in Connecticut. After lengthy consideration, father agreed and completed the necessary paperwork, returning it to that office in early 1996.

In July 1996, before the adoption had been completed, mother learned that her husband had molested her two older daughters. She and the children moved out the following day. In November 1996, mother telephoned husband’s wife to inform her that things had not worked out in Connecticut and that she was back in Baker City, Oregon, with the twin girls. This was the first notice husband received that the adoption had not been completed.

Mother received some public assistance and, as a result, the state obtained an administrative order requiring father to pay child support. After a telephone hearing, child support was set at $500 per month by the State of Oregon Support Enforcement Division. Father appealed that order. [520]*520After a trial de novo, the Baker County Circuit Court determined that there was sufficient basis to depart from the Oregon Child Support Guidelines and set the support at $250 per month. Both parties agree that, under the Oregon Child Support Guidelines, the presumed child support obligation of father to mother is $586 per month.

Mother appeals, assigning error to the trial court’s finding that there was sufficient basis to depart from the Oregon Child Support Guidelines. To depart from the presumed amount, a court must make a finding that the amount is unjust or inappropriate. A departure finding must be made on the record and include the reason why the order varies from the guidelines amount. ORS 25.280; OAR 137-050-0330(2); Van Etten and Van Etten, 158 Or App 122, 125, 972 P2d 1213, on recons 159 Or App 421, 980 P2d 1131 (1999). The list of criteria for departure is set forth in subsections (A) through (P) of OAR 137-050-0330(2)(a).1 See also [521]*521ORS 25.280(1)-(1). However, that list is not exclusive, and courts may consider “other nonenumerated economic factors that are relevant to the needs of the dependent child.” Petersen and Petersen, 132 Or App 190, 198, 888 P2d 23 (1994).

At trial, in reference to the departure criteria, the court stated that if it had to pick a “fudge factor,” it would choose “fudge factor F,” which is:

“The special hardships of a parent including, but not limited to, any medical circumstances or extraordinary visitation travel related costs, if any, of a parent affecting the parent’s ability to pay child support^]” OAR 137-050-0330(2)(a)(F).

In the Order Amending Child Support Order and Entering Judgment, the court made the following findings to support the departure:

“It is found that the presumed amount of child support is unjust or inappropriate based on the fact that the Petitioner/Obligee represented that the children would be adopted and the Respondent/Obligor signed an agreement to terminate his parental rights and, thereafter, believing that he had no further parental rights, incurred certain reasonable long-term debt which effectively prevents him from paying the full amount of child support as set by the guidelines.”

[522]*522The court did not specify what long-term debt father had incurred but, at trial, father testified that since signing the adoption papers he had purchased a house, for which the payments are $775 per month, and a truck, for which the payments are $200 per month. Thus, it appears that the trial court based its downward departure on its conclusion that the house and car payments constitute a special hardship for father, in light of the fact that he incurred those debts in reliance on mother’s representation that the children would be adopted and his belief that he had terminated his parental rights.

Mother argues that the house and car payments are not a special hardship, particularly in this case. We agree. Both house payments and car payments are ordinary expenses that most people have. They do not normally constitute a special hardship. In this case, father makes $3,758 per month, so both payments combined constitute about 25 percent of his gross income, a reasonable amount for such necessities. Furthermore, this debt does not appear to have put father at a financial disadvantage; in fact, it seems to have improved his financial situation. At trial, father testified that the rental payment on a similar three bedroom house “would be probably two to three hundred dollars greater than what [his] mortgage payment is.” Therefore, his house and car payments combined are equal to or slightly less than what his rent alone would have been had he not purchased the house.

Even if father’s recently acquired debt is not a special hardship under OAR 137-050-0330(2)(a)(F), the trial court is not confined to the rebuttal criteria listed in OAR 137-050-0330(2)(a)(A)-(P) to find that the presumed amount of child support is unjust or inappropriate. Here, the trial court found that the fact that father signed an agreement terminating his parental rights at mother’s request and therefore believed that he had successfully done so, based on mother’s representations that the children would be adopted, makes the presumed amount of child support unjust and inappropriate.

However, to the extent that there is any unfairness in the fact that father is not being allowed to rely on his justified belief that he had terminated his parental rights and [523]*523therefore his parental responsibilities, that unfairness is far outweighed by the needs of the children. Not only is “the needs of the child” one of the factors to be considered in determining whether the presumed amount is unjust or inappropriate, ORS 25.280(7) and OAR 137-050-0330(2)(a)(G), that factor is of paramount importance. In Petersen,

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Related

STATE EX REL. DHR v. Fairchild
979 P.2d 768 (Court of Appeals of Oregon, 1999)

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Bluebook (online)
979 P.2d 768, 159 Or. App. 517, 1999 Ore. App. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-human-resources-v-fairchild-orctapp-1999.