State ex rel. Pedroza v. Pedroza

875 P.2d 478, 128 Or. App. 102, 1994 Ore. App. LEXIS 768
CourtCourt of Appeals of Oregon
DecidedMay 25, 1994
DocketCV 87-314; CA A77076
StatusPublished
Cited by12 cases

This text of 875 P.2d 478 (State ex rel. Pedroza v. Pedroza) 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. Pedroza v. Pedroza, 875 P.2d 478, 128 Or. App. 102, 1994 Ore. App. LEXIS 768 (Or. Ct. App. 1994).

Opinion

ROSSMAN, P. J.

This is a proceeding to modify child support and to establish the amount of past due support owed by father. The state appeals a judgment in which the trial court reduced father’s accrued child support arrearage to $0 and ordered child support that is less than the child support guidelines’ presumptive amount.

In 1977, father and mother married in Washington. They had three children who, at the time of the hearing, were ages 14,12 and 10. The parties separated in 1983 and divorced in Washington in 1987. Father moved to Oregon and remarried; he and his present wife have a seven-year-old child.

Mother, a resident of Washington, has been receiving Aid to Dependent Children since she and father separated.1 In 1985, before the parties’ marriage ended, father was ordered to pay a total of $255 per month for child support. He complied with that order. In the 1987 marital dissolution judgment, which was based on a written agreement between the parties, child support was set at 25 percent of father’s gross income. Father testified that English is not his native language and that, in 1987, he did not know what “gross income” meant.

Beginning in 1987, father’s child support payments have been made to the State of Oregon through payroll deductions. Notwithstanding the 25 percent provision in the dissolution decree, the Oregon Department of Human Resources Adult and Family Services Division’s Child Support Program sent monthly statements to father’s employer, erroneously showing that his obligation was still $255 per month.2 Father testified that he knew otherwise, however. At one point, Washington sent father a refund check, suggesting that he had paid more than he owed. On another occasion, Oregon sent him a refund check. In May, 1988, the State of Oregon informed father’s [105]*105employer that father’s account had been overpaid and directed the employer to temporarily suspend withholding wages. In August, 1990, the state informed father that he was $37 in arrears. In April, 1991, the state learned that the parties’ dissolution judgment had set child support at 25 percent of father’s gross income. Thereafter, father’s arrearage was adjusted upward to $19,364 and his employer was directed to withhold 25 percent of father’s gross monthly pay.

On December 2,1991, father filed a motion to modify the dissolution judgment. He sought to delete the 25 percent provision and to reduce his child support obligation to $133 per child, per month. He also sought an order establishing that he is not in arrears. The state sought an increase in father’s child support payments and requested that the court establish the amount of unpaid support that had accrued under the dissolution judgment’s 25 percent provision.

The evidence presented at the hearing shows that mother’s monthly gross income is $935. Father’s gross income is approximately $3,050 per month. His present wife usually earns $1,450 per month, but at the time of the hearing, she had been temporarily laid off. According to father’s uniform support affidavit, his monthly expenses include a $369 car payment, ten minimum credit card payments that total $616, and an optional retirement fund deduction of $340. At the time of the hearing, he was paying approximately $500 per month for child support.

It is undisputed that, under the child support guidelines, ORS 25.270 to ORS 25.285; OAR 137-50-320 to OAR 137-50-490, father’s total monthly support obligation for the three children is $761.3 In an effort to rebut the presumption that $761 is the correct amount, OAR 137-50-330(2)(a), father testified that he is unable to pay that amount because of a $14,000 credit card debt that was a result of having left his household furnishings with mother when their marriage ended, and having needed to purchase furnishings and all of the “basic necessities” for the house that he now shares with his wife. Also, he presented evidence that he had attempted to refinance his house and consolidate his loans, but his application had been denied.

[106]*106The trial court reduced, father’s child support arrearage to $0, on equitable grounds. It noted that father had been faced with language difficulties and conflicting support orders, and that he had relied on assurances from Oregon and Washington agencies that he was not in arrears. As for his future child support obligation, the court found that father was “not able to pay” more than $133 monthly for each of his children, and imposed a total monthly obligation of $399. The state assigns error to both rulings.

A court has authority to consider, as a part of a modification proceeding, a motion to alter support arrearages that have accrued under a dissolution decree. See, e.g., ORS 107.135(8). However, the circumstances under which such a motion may be granted are narrow. Under ORS 107.135(6), a decree of dissolution of marriage is

“a final judgment as to any installment or payment of money which has accrued up to the time either party makes a motion to set aside, alter or modify the decree, and the court does not have the power to set aside, alter or modify such decree, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of such motion. However, the court may allow a credit against child support arrearages for periods of time, excluding reasonable visitation unless otherwise provided by order or decree, during which the obligated parent has physical custody of the child with the knowledge and consent of the custodial parent.” (Emphasis supplied.)

In short, the parties’ dissolution decree is a final judgment as to the child support that was due and unpaid before father filed his motion to modify.

The Oregon appellate courts have repeatedly held that, under ORS 107.135(6) and its predecessors, “installments of child support that have accrued before a motion to modify is made become final judgments and are beyond the power of the court to modify.” Sheldon and Sheldon, 82 Or App 621, 623, 728 P2d 946 (1986), rev den 302 Or 615 (1987); see also Cope and Cope, 291 Or 412, 415, 631 P2d 781 (1981); Seever and Seever, 124 Or App 54, 58, 861 P2d 1038 (1993); Edwards and Edwards, 73 Or App 272, 280, 698 P2d 542 (1985); Jacot v. Jacot, 37 Or App 803, 808, 588 P2d 122 (1978), rev den 286 Or 745 (1979). Further, “the law in Oregon is clear that a court [107]*107may not order accrued support satisfied on either equitable or estoppel grounds.” Sheldon and Sheldon, supra, 82 Or App at 624; see also Eagen and Eagen, 292 Or 492, 494-97, 640 P2d 1019 (1982); Bryant and Bryant, 70 Or App 443, 447, 689 P2d 1025 (1984). Accordingly, the trial court was without authority to modify or set aside father’s accrued and unpaid child support.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kim and Kinnersley
337 Or. App. 503 (Court of Appeals of Oregon, 2025)
In the Matter of Hunt
242 P.3d 682 (Court of Appeals of Oregon, 2010)
In Re the Marriage of Hunt
242 P.3d 682 (Court of Appeals of Oregon, 2010)
Matter of Marriage of Crook
110 P.3d 648 (Court of Appeals of Oregon, 2005)
In Re the Marriage of Parker
69 P.3d 811 (Court of Appeals of Oregon, 2003)
In re the Marriage of McGinley
19 P.3d 954 (Court of Appeals of Oregon, 2001)
MATTER OF MARRIAGE OF McGINLEY
19 P.3d 954 (Court of Appeals of Oregon, 2001)
State Ex Rel Dept. of Human Resources of State of Cal. v. Remirez
2 P.3d 437 (Court of Appeals of Oregon, 2000)
In re the Marriage of Thomsen
2 P.3d 432 (Court of Appeals of Oregon, 2000)
In re the Marriage of Mannix
932 P.2d 70 (Court of Appeals of Oregon, 1997)
State ex rel. O'connor v. O'connor
902 P.2d 114 (Court of Appeals of Oregon, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
875 P.2d 478, 128 Or. App. 102, 1994 Ore. App. LEXIS 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-pedroza-v-pedroza-orctapp-1994.