Vacation or modification of judgment
- policy regarding settlement
- enforcement of settlement terms
- remedies
Source:
Section 107.135 — Vacation or modification of judgment; policy regarding settlement; enforcement of settlement terms; remedies, https://www.oregonlegislature.gov/bills_laws/ors/ors107.html.
Notes of Decisions
In general
Legislative intent was to empower court to provide parental support in modification proceedings for “child attending school” as defined in ORS 107.108. State ex rel Wick v. Wick, 37 Or App 125, 586 P2d 400 (1978)
Accrued child support payments accumulated in trust account were not subject to modification and could not be set aside for misbehavior of custodial parent. Jacot v. Jacot, 37 Or App 803, 588 P2d 122 (1978), Sup Ct review denied
Where case is appealed, substantial change in circumstances is measured from date of trial court hearing appealed from. Lundgren and Lundgren, 39 Or App 135, 591 P2d 763 (1979), Sup Ct review denied
Where trust for minor child was established by third party prior to dissolution, trial court lacked jurisdiction over trust corpus. Melkonian and Melkonian, 55 Or App 586, 639 P2d 662 (1982)
Court retains personal jurisdiction over party to dissolution proceeding notwithstanding change in residency and passage of time. Carlin v. Carlin, 62 Or App 350, 660 P2d 204 (1983)
Nothing in this section authorizes court to order one spouse to pay money necessary to enable other spouse to appear in opposition to motion for modification of decree. Nickerson and Nickerson, 296 Or 516, 678 P2d 730 (1984); Scholze and Scholze, 68 Or App 679, 682 P2d 827 (1984), Sup Ct review denied
Filing of motion in trial court for modification of support order was nullity where appeal was pending; overruling Wilson v. Wilson, 242 Or 201, 407 P2d 898, 408 P2d 940 (1965). Nickerson and Nickerson, 296 Or 516, 678 P2d 730 (1984)
Increase in husband’s income and decrease in his expenses because parties’ children were emancipated, thus ending his duty to support them, taken together, do not constitute substantial change of circumstances. Barron and Barron, 85 Or App 278, 736 P2d 583 (1987)
Adjustment made in modification proceeding must be limited to amount that allows parties to adjust to unanticipated change in circumstances. Maier and Maier, 137 Or App 15, 902 P2d 1214 (1995), Sup Ct review denied
Facts sufficient to show change in circumstance justifying modification for either child support or spousal support payment necessarily show sufficient change to justify modification for both payments. Eidlin and Eidlin, 140 Or App 479, 916 P2d 338 (1996)
Court may not approve stipulation that deprives court of authority to modify award. Heinonen and Heinonen, 171 Or App 37, 14 P3d 96 (2000)
Court may enforce agreement between parents not to seek modification of child support terms in stipulated dissolution judgment unless enforcing agreement would violate law or contravene public policy. Matar and Harake, 353 Or 446, 300 P3d 144 (2013)
Custody awards
While immoral conduct standing alone may be insufficient to justify a change in custody, any moral transgressions must be considered together with other relevant factors in determining what is the best interests of the children. Mace v. Mace, 9 Or App 435, 497 P2d 677 (1972)
The party seeking modification must show a change of circumstances sufficient to support a modification and present substantial evidence that the best interest of the children would be served thereby. Rorer v. Rorer, 10 Or App 479, 500 P2d 734 (1972)
Where erroneous order transferring custody is not stayed, parent right to appeal order outweighs avoiding instability caused by retransfer of custody if appeal succeeds. Niedert and Niedert, 28 Or App 309, 559 P2d 515 (1977), Sup Ct review denied
Interference with parental visitation is not change in circumstances justifying change in custody unless interference is severe enough to constitute attempt to alienate child from noncustodial parent. Birge and Birge, 34 Or App 581, 579 P2d 297 (1978); Heuberger and Heuberger, 155 Or App 310, 963 P2d 153 (1998), Sup Ct review denied
Where initial placement was not result of judicial proceeding, substantial change in circumstances is not prerequisite to changing custody based on best interest of child. Whitaker v. Glerup, 35 Or App 201, 580 P2d 1073 (1978)
Court may award temporary custody at time dissolution decree issues where exceptional circumstances make award in best interest of child. Deffenbaugh and Deffenbaugh, 286 Or 759, 596 P2d 966 (1979)
Illegal conduct of parent in absconding with child does not prevent consideration of resulting change in circumstances. State ex rel Johnson v. Bail, 325 Or 392, 938 P2d 209 (1997)
Establishment of substantial change in circumstances is prerequisite to court’s consideration of best interest of child. Francois and Francois, 179 Or App 165, 39 P3d 265 (2002)
Maintenance of children
Court granting order of custody retains jurisdiction over questions of custody and support. Asbridge v. Lefever/Gekas, 15 Or App 563, 516 P2d 746 (1973)
Following motion asking decree modification to provide support for oldest child until age 21, memorandum of law which notified father that mother intended to seek modification for three remaining children was akin to amendment of original motion served on father, and father was thus given requisite notice as to three remaining children. Eusterman and Eusterman, 41 Or App 717, 598 P2d 1274 (1979)
Accrued support obligations are not subject to modification. Alspaugh and Alspaugh, 44 Or App 505, 605 P2d 1386 (1980); Eagen and Eagen, 292 Or 492, 640 P2d 1019 (1982); Sheldon and Sheldon, 82 Or App 621, 728 P2d 946 (1986), Sup Ct review denied
Obligor parent could not reduce support obligation by amount of child’s social security benefits without court modification of obligation. Cope and Cope, 49 Or App 301, 619 P2d 883 (1980), aff’d 291 Or 412, 631 P2d 781 (1981)
Where decree provides for support while attending college, lapse while children did not attend college does not prevent resurrection of obligation upon children beginning college. Riback and Riback, 59 Or App 670, 651 P2d 1089 (1982)
This section was not applicable to a determination of whether support obligation had ended because of child’s emancipation as no question of setting aside, altering or modifying a decree was involved. Ellis v. Ellis, 292 Or 502, 640 P2d 1024 (1982)
Noncustodial parent could not offset amount of property division improperly withheld by custodial parent against accrued child support obligation. Bryant and Bryant, 70 Or App 443, 689 P2d 1025 (1984)
Change of circumstances occurs where there is inability or unwillingness to continue to cooperate in arrangement and one party believes that arrangement is unworkable. Swilling and Swilling, 97 Or App 384, 775 P2d 929 (1989); Horner and Horner, 119 Or App 112, 849 P2d 560 (1993)
Where original decree was not issued under Uniform Child Support Guidelines, guidelines apply where substantial change in circumstances warrants any change in support amount or where obligation is collected through enforcing agency. Gay and Gay, 108 Or App 121, 814 P2d 543 (1991)
Ability to modify child support in later proceeding does not prevent court from considering future changes in income in determining original award. Harper and Harper, 122 Or App 9, 856 P2d 334 (1993), Sup Ct review denied
Order for provision of health insurance coverage was child support obligation includable in calculation of arrearage. Ramberg and Ramberg, 123 Or App 281, 859 P2d 571 (1993)
Education expense of continuing student can justify deviation from amount of child support presumed under guidelines. Seever and Seever, 124 Or App 54, 861 P2d 1038 (1993)
Court lacks authority to create trust through child support modification proceeding. Stringer v. Brandt, 128 Or App 502, 877 P2d 100 (1994)
Unless decree is modified, child support obligation cannot be satisfied by parties agreeing to substitute different performance. Forrester and Forrester, 147 Or App 319, 936 P2d 388 (1997), modified 149 Or App 111, 942 P2d 299 (1997)
Where substantial change in economic circumstances is “sufficient for court to reconsider” order of support, reconsideration of proper child support amount is mandatory. Glithero and Glithero, 326 Or 259, 951 P2d 682 (1998)
Maintenance of spouse; stipulated settlement and remarriage
Fact that wife is currently, but was not previously, earning salary is but one circumstance which may properly be considered in allowing a modification of alimony award. Gueldenzopf v. Gueldenzopf, 7 Or App 298, 490 P2d 1042 (1971)
Substantial change in circumstances supporting modification requires change in ability of obligor spouse to pay or in obligee spouse’s need for support. Osterholme v. Osterholme, 13 Or App 73, 508 P2d 824 (1973); Case v. Case, 18 Or App 637, 526 P2d 467 (1974)
Where settlement agreement is incorporated into decree, parties are held to have contracted subject to court’s authority to modify support. Copenhaver v. Copenhaver, 15 Or App 142, 515 P2d 185 (1973); Garnett v. Garnett, 270 Or 102, 526 P2d 549 (1974)
Increase in supporting spouse income does not in itself constitute sufficient change in circumstances to justify modification. Wells v. Wells, 15 Or App 507, 516 P2d 480 (1973)
When agreement between parties to divorce is incorporated into divorce decree, it loses its contractual nature and party must seek modification of support provisions rather than reformation. Davis v. Davis, 19 Or App 209, 527 P2d 149 (1974), Sup Ct review denied; Edwards and Edwards, 124 Or App 646, 863 P2d 513 (1993), as modified by 127 Or App 489, 873 P2d 401 (1994)
Court has authority to extend period of support beyond that provided for in original decree. McReynolds v. McReynolds, 24 Or App 891, 547 P2d 664 (1976)
Support payments accruing after filing of motion to modify are subject to enforcement efforts although payment obligation is subject to later modification. Walker v. Walker, 26 Or App 701, 554 P2d 591 (1976), Sup Ct review denied
Use of periodic payment schedule to provide income source to spouse does not convert interest in divisible property into spousal support. Horesky and Horesky, 30 Or App 941, 569 P2d 34 (1977), Sup Ct review denied
Decree that provides for spousal support should enjoin upon supported spouse duty to advise other party if and when supported spouse remarries. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), as modified by 280 Or 769, 572 P2d 1320 (1977)
Trial court lacked authority to renew spousal support payments pursuant to motion that was not filed until after expiration of limited time period during which support was required to be paid under original decree. Park and Park, 43 Or App 367, 602 P2d 1123 (1979), Sup Ct review denied
Occurrence contemplated and provided for in spousal support agreement cannot be change in circumstances. Pope and Pope, 301 Or 42, 718 P2d 735 (1986); Porter and Porter, 100 Or App 401, 786 P2d 740 (1990), Sup Ct review denied
Remarriage of supported spouse may represent change in circumstances but it will not automatically terminate spousal support award because remarriage will not always supplant purposes behind award. Bates and Bates, 303 Or 40, 733 P2d 1363 (1987); Smith and Smith, 103 Or App 614, 798 P2d 717 (1990), Sup Ct review denied, on reconsideration 108 Or App 335, 813 P2d 1137 (1991); Grage and Grage, 109 Or App 311, 819 P2d 322 (1991)
Court could not require yearly physical examinations of spouse. Baumgartner and Baumgartner, 95 Or App 723, 770 P2d 965 (1989), Sup Ct review denied
Court lacked authority to award spousal support in modification proceeding where support obligation had been terminated by prior modification. Woita and Woita, 98 Or App 83, 778 P2d 504 (1989), Sup Ct review denied
Substantial deterioration in wife’s health may constitute changed circumstances, as could failure to improve if significant improvement was contemplated at time of original judgment. Polette and Polette, 99 Or App 327, 781 P2d 1253 (1989), Sup Ct review denied; Winnie and Winnie, 109 Or App 304, 818 P2d 1292 (1991), Sup Ct review denied
Income potentially available due to nonmarital domestic partnership could be considered as changed circumstance in same manner as income potentially available from remarriage. Bliven and Bliven, 106 Or App 93, 806 P2d 177 (1991); Bishop and Bishop, 137 Or App 112, 903 P2d 383 (1995); Morrison and Morrison, 139 Or App 137, 910 P2d 1176 (1996)
Where there was no substantial change of circumstances, court erred in setting date for termination of spousal support in order to end support dependency relationship. Hearing and Hearing, 122 Or App 337, 857 P2d 877 (1993)
Court lacked authority to retroactively reinstate suspended spousal support. Seever and Seever, 124 Or App 54, 861 P2d 1038 (1993)
Instruction to trial court to modify award of spousal support “effective upon entry of appellate judgment” meant that trial court award of spousal support continued until superseded by modified award at time of entry of appellate judgment. Truitt and Truitt, 125 Or App 621, 866 P2d 497 (1994)
Where obligee spouse remarries, burden of proof is on obligor spouse to show that remarriage constitutes substantial change of circumstance justifying modification. Ganger and Little, 139 Or App 350, 911 P2d 1276 (1996)
Court may accept stipulated agreement of parties permitting additional grounds for modification if stipulated agreement is not unfair and does not remove court’s authority to modify on statutory grounds. Eidlin and Eidlin, 140 Or App 479, 916 P2d 338 (1996)
Where party is temporarily unable to meet support obligation, proper remedy is modification of support amount, not temporary suspension of support obligation. Cutting and Cutting, 147 Or App 30, 934 P2d 622 (1997)
Income of obligor spouse at time of modification is irrelevant in determining whether purpose of initial award of spousal support has been met. Moser and Gilmore, 184 Or App 377, 56 P3d 417 (2002)
Consideration of income from all sources includes potential income from property awarded to obligor spouse at time of dissolution. McArdle and McArdle, 186 Or App 672, 64 P3d 1178 (2003)
Marital settlement agreement cannot authorize court to make support obligation retroactive to date before filing date of motion to modify obligation. Hutchinson and Hutchinson, 187 Or App 733, 69 P3d 815 (2003)
Post-dissolution increase in payor spouse’s income does not by itself ordinarily constitute substantial change in economic circumstances. Weber and Weber, 337 Or 55, 91 P3d 706 (2004)
Where initial judgment of dissolution has previously been modified to reduce spousal support obligation based on change in income of payor spouse, further modification to restore original spousal support obligation does not require showing change in needs of payee spouse. Mitchell and Mitchell, 201 Or App 670, 120 P3d 491 (2005)
Where termination date for support obligation occurred on weekend, time for filing petition to modify support obligation was not extended to next business day. Goertel and Goertel, 209 Or App 585, 149 P3d 247 (2006)
In determining whether modification of spousal support is just and equitable, court must consider both principal and income of retirement benefits. Gibson and Gibson, 217 Or App 12, 174 P3d 1066 (2007)
Finality of decrees and liens
One who seeks modification of a prior support order must show a material change in the ability of the payor to pay or in the other party’s need for support. Case v. Case, 18 Or App 637, 526 P2d 467 (1974)
A divorce decree providing for payment by each party of one-half the monthly mortgage payments on property held as tenants in common do not create a lien for the payments until an installment accrued and remained unpaid. Clark v. McCoy, 273 Or 81, 539 P2d 639 (1975)
Court-approved marital settlement agreement that waives right of party to seek modification does not contravene public policy or impermissibly interfere with court jurisdiction. McInnis and McInnis, 199 Or App 223, 110 P3d 639 (2005)
Vacation of decrees
Provisions of a settlement agreement relating to a division of property, even though it be through the means of periodic payment of money, are invulnerable to change. Garnett v. Garnett, 270 Or 102, 526 P2d 549 (1974)
Trial court lacks power to modify property division portions of final judgment dissolving marriage. Murray and Murray, 88 Or App 143, 744 P2d 1005 (1987); Dee and Dee, 96 Or App 252, 772 P2d 444 (1989)
Agreement of parties to modify property division does not give court authority to enter order of modification. Spady v. Graves, 307 Or 483, 770 P2d 53 (1989)
Costs and attorney fees
Father’s motion to terminate child support because son was not “child attending school” was motion under this section and, as result, attorney fees provision of this section was applicable. Yokum and Yokum, 87 Or App 336, 742 P2d 655 (1987)
It is not necessary to specify statutory basis for attorney fees when facts asserted provide basis, parties have been fairly alerted that fees would be sought and no prejudice would result. Page and Page, 103 Or App 431, 797 P2d 408 (1990); Hogue and Hogue, 118 Or App 89, 846 P2d 422 (1993)
Attorney fee award does not require that dispute be resolved through contested case hearing on merits rather than through stipulated agreement. Floeter and Floeter, 113 Or App 182, 830 P2d 626 (1992)
Where opposing party made litigation unduly complex, reasonable and necessary attorney fees included additional cost incurred to respond to extensive legal maneuvering. Weiner and Weiner, 118 Or App 466, 848 P2d 122 (1993)
Because intervening grandparents are not “parties” to modification proceeding, they are not eligible for award of attorney fees. Cerda and Cerda, 136 Or App 104, 901 P2d 263 (1995), Sup Ct review denied
Award of attorney fees payable directly to organization that provided party with free legal services was assessment of legal fees for benefit of party. State ex rel Binschus v. Schreiber, 141 Or App 288, 917 P2d 1063 (1996)
This statute does not exclude intervening parties as parties against whom attorney fees may be awarded on appeal. Holm and Holm, 323 Or 581, 919 P2d 1164 (1996)
ORS 20.075 applies where court exercises discretion to award or deny attorney fees in modification proceeding. Baker and Baker, 173 Or App 33, 20 P3d 263 (2001)
This section authorizes awarding attorney fees to party seeking enforcement of stipulated terms of original dissolution judgment under ORS 107.104 where enforcement efforts are reasonably and materially related to resolution of modification under this section. Berry and Huffman, 247 Or App 651, 271 P3d 128 (2012); Baertlein and Stocks, 303 Or App 51, 464 P3d 433 (2020)
Where child custody proceeding was held to determine best interests and welfare of child, and attorney fees were awarded to claimant, attorney fees were intended to be in nature of support for welfare of child. In re Moser, 530 B.R. 872 (Bkrtcy. D. Or. 2015)
COMPLETED CITATIONS: Hogan v. Hogan, 6 Or App 122, 486 P2d 1309 (1971)
Law Review Citations
51 OLR 725, 726 (1972); 69 OLR 689 (1990)
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