State v. Nguyen

344 P.3d 49, 268 Or. App. 789, 2015 Ore. App. LEXIS 111
CourtCourt of Appeals of Oregon
DecidedFebruary 4, 2015
Docket601207124; A153574
StatusPublished
Cited by4 cases

This text of 344 P.3d 49 (State v. Nguyen) 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 v. Nguyen, 344 P.3d 49, 268 Or. App. 789, 2015 Ore. App. LEXIS 111 (Or. Ct. App. 2015).

Opinion

HADLOCK, J.

Father appeals a judgment requiring him to pay child support, contending that the trial court erred in five ways in determining the appropriate amount of support. We agree that the trial court erred in determining father’s income and in ordering a rebuttal based on father’s access to funds of his ex-wife, and we therefore reverse and remand.

Father and mother have one child, who was born in February 2011. Father lives in Georgia, and mother and the child live in Oregon. In August 2011, the Oregon Department of Justice, Division of Child Support (DCS), initiated a filiation proceeding in which it was determined that father is the biological father of the child. At the conclusion of that proceeding, DCS issued a Notice and Finding of Financial Responsibility requiring father to pay $609 support per month, provide private health-care coverage when available or an additional $163 per month as cash medical support if it was not, and pay past support for the period February 1, 2011 to August 31, 2011, in the amount of $5,404. That notice was based on a child-support worksheet that identified father’s monthly income as $5,251 and mother’s monthly income as $1,473.33. The notice stated that father’s income had been determined using “[p] resumed income for chicken ranchers/farmers in Georgia” and that mother’s income had been determined based on “[potential minimum wage for Oregon.”

Father requested a hearing, and DCS referred the matter to the Office of Administrative Hearings. An administrative law judge (AL J) presided over a telephonic hearing in May 2012. Both parents participated and testified as witnesses. Father appeared pro se, and mother was represented by counsel and testified through an interpreter. DCS did not participate.

The ALJ made the following factual findings pertinent to this appeal:

“(1) [The child], age one, is the child of [father] and [mother]. The child primarily resides with [mother]. There is no court order or written agreement that grants [father] parenting time with the child. [Father] does not exercise any parenting time with [the child].
[791]*791“(2) [Father] has two other biological children ***. [Father] resides in a barn on a chicken farm. His ex-wife Tina resides in the primary family home on the farm. The two children live in the primary home with Tina. There is no court order that requires [father] to pay ongoing support for [the two other children].
“(3) [Mother] is employed in a nail salon, working nine hour shifts, six to seven days per week. She earns commissions only in the approximate amount of $1,500 per month. She has worked for this employer for two years.
“(4) [Father] is employed in a nail salon, working eight hour shifts, six days per week. He earns commissions only of $350 to $500 every two weeks. He began this job in December 2011.
“(5) In Oregon, the 10th percentile wage for manicurists is $8.98 per hour. In Georgia, the 10th percentile wage for manicurists is $8.60 per hour. [Mother] resides in Oregon. [Father] resides in Georgia.
“(6) From August 2010 through September 2011, [father] operated a Georgia chicken farm in which he was part owner. During that period, he was the sole operator of the farm and received all the income and incurred all the expenses related to the farm. He worked all day on the farm, seven days per week. In September 2011, he assigned any interest he had in the chicken farm to the co-owners, his ex-wife Tina and his ex-sister-in-law, for $2. He no longer had any capital to invest in the chicken farm and could not continue to operate it. He had a capital loss of $21,084 for this transaction. In 2011, he had gross receipts from the farm of $153,578 and gross business expenses of $121,547. * * * Prior to operating the chicken farm, [father] performed computer repair work in Oregon, earning $15 per hour.
“(7) The State of Oregon’s minimum wage is $8.80 per hour, and the State of Georgia’s minimum wage is $7.25 per hour.
“(8) Neither [father] nor [mother] has access to private health care coverage.
“(9) On February 19, 2011, DCS received a mandatory referral to establish support for [the child]. In March 2011, [father] began making regular monthly payments to [mother]. From March 2011 through September 2011, [792]*792he made the following payments: $300, $200, $450, $300, $200, $350, $100, and $400. He made no other payments after September 2011. Four months prior to the birth of [the child], [mother] visited [father] in Georgia.”

(Footnotes omitted.)

Based on those factual findings, the ALJ ordered father to pay $277 monthly cash support and $0 monthly cash medical support to mother. That calculation was based on father’s income of $1,490.67 and mother’s income of $1,556.53. Those numbers represent parents’ potential incomes, based on the 10th percentile wage for manicurists in Georgia, for father, and in Oregon, for mother. The ALJ assigned those potential incomes after finding that both parents made less than Oregon minimum wage. See OAR 137-050-0715(6) (7/1/10) (“Income is presumed to be the amount determined as potential income in the following scenarios: *** (c) A parent with income less than Oregon minimum wage for full-time employment.”). The ALJ also found that father owed past support of $5,193 for the period of February 2011 through June 2012. The ALJ calculated that past-due amount based on the actual monthly income that it determined father made from the chicken farm that he owned and operated from February through September 2011, which the ALJ determined to be $4,315.67, and his potential income of $1,490.67 as a manicurist thereafter.

Father requested a hearing de novo in Lane County Circuit court by filing a form entitled “Appeal From Administrative Order & Petition For Hearing De Novo.” See ORS 416.427(6) (“Appeal of the order of the administrative law judge * * * may be taken to the circuit court of the county in which the order has been entered pursuant to ORS 416.440 for a hearing de novo”). In printed text, the form stated, “I request a hearing to appeal all or part of the administrative order as follows [.]” In the space after that text, father wrote, “The amount of past child support and my income from nail salon.”

The hearing de novo occurred in November 2012. Father participated in the hearing by telephone, and both he and mother testified through an interpreter. Neither parent was represented by counsel. DCS appeared through [793]*793counsel. At the start of the hearing, the attorney for DCS explained that “the main issue that [father] objects to is how the administrative law judge computed his income and his obligations for past support.” DCS’s attorney also noted that “the State believes [father] is partially right, that the ALJ might have overstated his income.”

As we will explain in more detail below as we discuss each of father’s assignments of error, the trial court found that father’s current actual income as a manicurist in Georgia was $1,750 per month.

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Cite This Page — Counsel Stack

Bluebook (online)
344 P.3d 49, 268 Or. App. 789, 2015 Ore. App. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nguyen-orctapp-2015.