In re the Marriage of McGinley
In re the Marriage of McGinley
Opinion of the Court
Father appeals from a judgment modifying his child support obligation for his son and affirming his support obligation for his daughter, who is a student at a private liberal arts college. Mother cross-appeals from the judgment. She challenges the trial court’s refusal to increase father’s support obligation for daughter based on a decrease in daughter’s financial aid award. On de novo review, we affirm in part and reverse in part.
The court entered a judgment in 1988 dissolving the parties marriage. The dissolution judgment awarded custody of the parties’ two children to mother and ordered father to pay both child and spousal support. Both parties sought to modify the dissolution judgment in 1996 and again in 1997. In response to the first motion, the trial court terminated spousal support due to changed circumstances, terminated child support for son based on son’s incarceration in the state correctional system, and increased father’s support obligation for daughter based on her educational expenses as a child attending school, ORS 107.108. In its ruling on the second motion for modification, the trial court refused to increase father’s support obligation for daughter because it concluded that no substantial change of economic circumstances had occurred; it reinstated father’s support obligation for son as a result of son’s transitional release from state boot camp; and it declined to terminate father’s support obligation for daughter based on father’s contention that ORS 107.108 violates the state and federal constitutions.
Father appeals, assigning error (1) to the trial court’s refusal to hold that ORS 107.108 violates the state and federal constitutions and (2) to the amount of child support that the court ordered for son. Father argues that ORS 107.108 violates the Oregon Constitution’s Equal Privileges and Immunities Clause, Or Const, Art I, § 20, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. With regard to son’s support, father argues that the trial court improperly deviated from
We conclude that ORS 107.108 does not violate either the state or federal constitutional guarantee of equal treatment. Additionally, we conclude that the decrease in daughter’s financial aid award did not constitute an unanticipated substantial change in economic circumstances. ORS 107.135(2)(a) (1997). Accordingly, we affirm the child support award for daughter. With regard to the support award for son, we agree with father that the trial court improperly deviated from the guidelines without making findings to support its decision to do so. ORS 25.280. We therefore remand that portion of the judgment to the trial court for entry of findings or modification of the award.
Before discussing the merits of the case, we first address mother’s concern that both father’s constitutional challenge to ORS 107.108 and mother’s cross-appeal may be moot as a result of father having fulfilled his statutory support obligation to daughter since the court entered its second modification judgment. “A case becomes moot for the purpose of an appeal when, because of a change of circumstances prior to the appellate decision, the decision would resolve merely an abstract question without practical effect.” State ex rel Juv. Dept. v. Holland, 290 Or 765, 767, 625 P2d 1318 (1981) (citations omitted). Because we have the power to make any modification of father’s support obligation for daughter retroactive to the date that father moved to modify the dissolution judgment, our decision could affect father’s support obligation for daughter. See Pedroza and Pedroza, 128 Or App 102, 107, 875 P2d 478 (1994) (“[Mjodification of a support order can be made retroactive to the date of the filing of the motion to modify.”) (citations omitted). Consequently, that issue is not moot.
“a child of the parties who is unmarried, is 18 years of age or older and under 21 years of age and is a student regularly attending school, community college, college or university, or regularly attending a course of professional or technical training designed to fit the child for gainful employment. A child enrolled in an educational course load of less than one-half that determined by the educational facility to constitute ‘full-time’ enrollment is not a ‘child attending school.’ ”
ORS 107.108(8). Enacted in 1973, ORS 107.108 reflects Oregon’s commitment to make higher education as available as possible to its citizens. Our state’s tradition of requiring divorced parents to support their children while they attend college goes back at least to the Supreme Court’s 1941 decision in Jackman v. Short, 165 Or 626, 638-39, 109 P2d 860 (1941), in which the court held that the trial court properly required a noncustodial father to help pay for his 18-year-old daughter to attend Oregon State College.
Although father does not dispute the value of higher education, he argues that the state’s decision to require divorced parents to support their children in such endeavors, while not imposing a similar burden on married parents living together, violates the state and federal constitutions. Father urges that classifications based on marriage or divorce should be recognized as suspect under both the state and federal constitutions and, therefore, that such classifications should be subject to heightened scrutiny by courts. Alternatively, he argues under the federal Equal Protection Clause that ORS 107.108 interferes with the fundamental right to make decisions about marriage and divorce and, for that reason, that the law should be subject to strict scrutiny. Finally, father contends that, even if we do not apply heightened scrutiny, ORS 107.108 is invalid under both the state and federal constitutions because it is not rationally related to any legitimate governmental purpose. We conclude that the law does not discriminate against a suspect class and therefore that it is not subject to heightened scrutiny on that basis under Article I, section 20, of the Oregon Constitution or the Fourteenth Amendment to the United States Constitution. We also conclude that the law does not significantly interfere with the exercise of a fundamental right and therefore that heightened scrutiny is not warranted under the Fourteenth Amendment. Finally, we conclude that ORS
We begin by addressing father’s state constitutional challenge to ORS 107.108. Article I, section 20, provides that “[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” “[T]he clause ‘forbids inequality of privileges or immunities not available upon the same terms, first, to any citizen, and second, to any class of citizens.’ ”
As a preliminary matter, we note that, although father argues that ORS 107.108 distinguishes between parents solely on the basis of marital status, that is not precisely true. The class of parents who are burdened by the statute
The question remains, however, whether the classification created by ORS 107.108 (i.e., between parents of children attending school who are currently married to each other and parents of children attending school who are not) is a suspect classification. As stated previously, we will consider a classification to be suspect if it is based on “characteristics [that have been] historically regarded as defining distinct, socially recognized groups that have been the subject of adverse social or political stereotyping or prejudice.” Tanner, 157 Or App at 523. Father argues that ORS 107.108 discriminates against divorced parents and that such parents, particularly fathers, have been the subject of adverse stereotypes and prejudice.
Arguably, divorced parents are part of a distinct, socially recognized group, although the group is not as well recognized as are other socially recognized groups. There are songs and movies and books about divorced parents and organizations of and for them. There also have been several national and statewide campaigns to recover unpaid child support from such people. Thus, although father has not provided evidence of entrenched group status, we will assume for the sake of argument that divorced parents do comprise a socially recognized group.
The next question under Article I, section 20, is whether that group has been the subject of “adverse social or political stereotyping or prejudice.” Tanner, 157 Or App at 523. Although the issue is not beyond dispute, we conclude that divorced parents have not been the subject of stereotyping or prejudice to an extent that would render them a suspect class. Gender, race, religious affiliation, alienage, and sexual orientation are among the classifications identified as
Under Article I, section 20, when the challenged classification does not involve a suspect class, we have applied a rational basis test to evaluate whether the classification violates the provision. We will assume that that is the relevant test for us to apply here. Sherwood School Dist. 88J v. Washington Cty. Ed., 167 Or App 372, 386, 6 P3d 518, rev den 331 Or 361 (2000).
We have identified the interest served by ORS 107.108 as the state’s interest in having a well-educated populace. Crocker, 157 Or App at 660. The legitimacy of that interest is undisputed. See Willison, 37 BC L Rev at 1123. Moreover, as we indicated in Crocker, it is rational to believe that children from nonintact families will have more difficulty paying for their college education than will children from intact families, in part because of lack of support from divorced parents:
“[L]egislators could rationally believe that, because of the nature of divorce and separation, there will be instances in which children will not receive support from their parents to attend school precisely because the parents are divorced or separated, despite the fact that the parents have the resources to provide the support and it is in the children’s best interest for them to do so. * * * Providing courts with the authority to require those parents to support their children attending school is a rational response to that problem.”
Crocker, 157 Or App at 661.
In particular, we note, as we did in Crocker, that the legislative distinction embodied in ORS 107.108 mirrors the distinction in ORS 107.105(l)(c), which allows courts to order divorced parents to pay child support for minor children but which contains no similar provision with respect to married parents who are living together. Crocker, 157 Or App at 662.
If, as father contends, it violates Article I, section 20, to treat divorced parents differently from married parents with regard to the obligation to support their 18- to 21-year-old children who are attending school, then it violates that provision to treat parents differently with regard to support for their children under 18 years of age. As far as we know, every state in the country distinguishes between divorced parents and married parents with regard to state involvement in decisions about the financial support of their children under the age of majority. It would be remarkable for us to conclude that the constitutional guarantee of equal treatment that is found in some form in most, if not all, state constitutions and in the federal constitution, is violated by such a difference in treatment. See generally Willison, 37 BC L Rev at 1114-15. We conclude that the distinction embodied in ORS 107.108 does not violate Article I, section 20, of the Oregon Constitution.
We turn now to father’s contention that ORS 107.108 violates the Fourteenth Amendment’s Equal Protection Clause because it impermissibly classifies parents according to marital status and because it infringes on the fundamental right to marry. We reject both contentions.
Section 1 of the Fourteenth Amendment provides that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Under that clause,
First of all, we note that the Supreme Court has previously suggested that distinctions based on marital status are not suspect.
As we noted earlier, the distinction that ORS 107.108 actually draws is between divorced parents whose children wish to attend college and parents who are married to the
We conclude that divorced parents of children attending school are not a suspect class for purposes of the Equal Protection Clause and that ORS 107.108 should not, therefore, be subject to heightened scrutiny on the basis that it discriminates against a suspect class. We turn to father’s contention that ORS 107.108 interferes with a fundamental right and should be subjected to strict scrutiny on that basis.
Father argues that ORS 107.108 interferes with the fundamental right to marry. Because it is well established that the right to marry is fundamental, the remaining question is whether ORS 107.108 “significantly interferes with the exercise of that right.” Zablocki v. Redhail, 434 US 374, 383, 98 S Ct 673, 54 L Ed 2d 618 (1978). If it does, it is subject
In Zablocki, the Supreme Court addressed a Wisconsin statute that required noncustodial parents with outstanding child support obligations to obtain a court order before remarrying. Under the statute, the court order would be granted only if the parent submitted proof of compliance with the child support obligations and showed that the child was not currently a public charge or likely to become one in the future. Because the parent in Zablocki was indigent and, therefore, was unable to meet his support obligations, he was unable to marry under Wisconsin law. In holding that the statute significantly interfered with the right to marry, the Court noted that it prevented some members of the affected class from marrying at all, that it burdened others to such an extent that they would be “in effect * * * coerced into forgoing their right to marry,” and that even those who met the statutory requirements would “suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.” Id. at 387. However, in holding the statute unconstitutional, the Court emphasized that “reasonable regulations that do not significantly interfere with the marital relationship may be legitimately imposed.” Id. at 386 (citation omitted).
Federal appeals courts have built on the analysis in Zablocki to further delimit the constitutionally permissible level of state interference with the right to marry. In P.O.P.S. v. Gardner, 998 F2d 764 (9th Cir 1993), the Ninth Circuit upheld Washington’s child support guidelines against equal protection and due process challenges. The organization challenging the guidelines argued that they resulted in such high awards of child support that noncustodial parents were effectively precluded from remarrying. In rejecting that argument, the court stated that, unlike the statute in Zablocki, the guidelines did not directly interfere with the marital relationship because they did not bar anyone from getting married. It also noted that courts had authority to deviate from the guidelines in the event that a child support obligation was so high that it effectively prevented a noncustodial parent from remarrying. Finally, the court noted that the
*733 “burden of child support awards may very well discourage some people from having additional children and may discourage some from entering new marriages. But all financial obligations impact family decisions. Providing financial and emotional support is the responsibility one assumes by choosing to have children. Every obligation imposed by the State cannot be subject to strict scrutiny.”
P.O.P.S., 998 F2d at 768-69.
Similarly, in Wright v. MetroHealth Medical Ctr, 58 F3d 1130 (6th Cir 1995), the Sixth Circuit upheld a hospital’s anti-nepotism policy against the plaintiffs’ allegation that it interfered with their right to marry. The policy provided for the transfer of one spouse in the event that both became employed in the same location. The court suggested that, although anti-nepotism policies may place economic burdens on the decision to marry, they do not directly interfere with that decision. It further noted that the policy at issue did “not create a legal obstacle that would prevent a class of people from marrying,” and that it therefore did “not directly and substantially interfere with the fundamental right to marry.” Id. at 1135-36. Accordingly, it subjected the policy to a rational basis analysis.
We conclude that the burden imposed by ORS 107.108 does not substantially interfere with the fundamental right to marry.
Rational basis analysis under the Equal Protection Clause is similar to the equivalent analysis under Article I, section 20. As we stated above, the state has a legitimate interest in having an educated populace, and requiring divorced parents to contribute to their children’s education is a rational means of furthering that interest. Father does not dispute the legitimacy of the state’s interest in education; instead he argues that the statutory distinction between divorced parents and parents who remain married to one another is irrational. It is simply too late in the day to make that argument under the Equal Protection Clause. As the United States Supreme Court said nearly 30 years ago:
“Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point. ‘[T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all .’Dandridge v. Williams, 397 U.S. 471, 486-487[, 90 S Ct 1153, 25 L Ed 2d 491] (1970).”
Aiello, 417 US at 495. ORS 107.108 is one means of providing for the welfare of Oregon’s younger citizens. The legislature is entitled to significant latitude in attempting to reach that goal. Its decision to assist children of divorced parents, who are likely to be more economically vulnerable than are other children, is not irrational.
In summary, we conclude that ORS 107.108 violates neither the state nor federal constitutional guarantee of
We turn briefly to father’s second assignment of error. He argues that the trial court improperly deviated from the guidelines in setting the amount of child support for son without entering findings to support its decision to do so. ORS 25.280. The trial court’s judgment provided that child support for son would be determined according to the guidelines, except that the award would not take into account the amount that father was paying for daughter. The guidelines contemplate that a parent’s total support obligation for all joint children will be determined in one calculation, according to the parent’s income. See, e.g., OAR 137-050-0490 (1997). Where, as here, the support obligation for one joint child is calculated separately, and then the parent is not given any credit for having fulfilled that obligation when the amount of the second child’s support is calculated, the support amount will be affected in two different ways. First, the parent’s income will be artificially inflated by the court’s failure to deduct the amount being paid for the first child. See OAR 137-050-0400 (1997) (providing for income deductions for support obligations for nonjoint children).
Although the trial court may have had legitimate reasons to deviate from the guidelines, it had to enter findings to justify its decision to do so. See ORS 25.280 (creating a rebuttable presumption that the support amount determined under the guidelines is the correct amount and providing that “a written finding or a specific finding on the record
Finally, we address mother’s cross-appeal. She assigns error to the trial court’s failure to increase father’s support obligation for daughter based on the decrease in her college financial aid award. She argues that the decrease constituted a substantial change in her economic circumstances. See ORS 107.135(2)(a) (1997).
Child support award for son vacated and remanded for entry of findings or modification; otherwise affirmed.
Mother raises various preservation issues with respect to this assignment of error; we reject them without discussion.
Under the statutes in place in Jackman, the age of majority was 21, and courts had no authority to require parents to support their children after they had reached that age. Jackman, 165 Or at 638; Or Code 1930, § 6-915. See also Mack v. Mack, 91 Or 514, 517, 179 P 557 (1919). Although the age of majority in Oregon is now 18, the situation in Jackman differs from that in our case because courts now have express statutory authority to provide for support of children who have reached the age of majority but who are not yet 21. ORS 107.108. Another difference between the two statutory schemes is that the applicable statute in Jackman simply allowed courts to order support for the education of children without specifying the level of education, Or Code 1930, § 6-915, whereas Oregon courts are now specifically authorized to order support for post-secondary educational expenses, ORS 107.108.
The court stated that “[ o Ine of the principal purposes of an education is still to train the young for the discharge of their duties to society and to afford them such knowledge of our government and American institutions that upon reaching majority they will intelligently perform their part in the great social order.”
Father argues both that he is a member of a class that is discriminated against in violation of Article I, section 20, and that he also is discriminated against as an individual in violation of that provision. In order to establish the latter, father would have to show that “the government * * * made or applied * * " [ ORS 107.1081 so as to grant or deny privileges or immunities to * * [him as an individual] without legitimate reasons related to * * * This I individual situation.” State v. Clark, 291 Or 231, 239, 630 P2d 810, cert den 454 US 1084, 102 S Ct 640, 70 L Ed 2d 619 (1981). Father has not made any attempt to demonstrate that the law was enacted to target him personally or that it has been applied differently to him than to others. Accordingly, his claim that ORS 107.108 discriminates unlawfully against him as an individual fails.
The father in Crocker did not argue that anything other than rational basis analysis was required to test the validity of ORS 107.108 under Article I, section 20, or the Fourteenth Amendment. Accordingly, we decided the case using a rational basis analysis. Crocker, 157 Or App at 660.
As discussed in Crocker, courts are also authorized to order parents who never married each other and parents who are married but living apart to support their children while they attend school. Crocker, 157 Or App at 656-57. See also ORS 109.155; ORS 108.110. The complete statutory scheme therefore distinguishes between parents who are married to and living with the parents of the children who are attending school and those who are not. However, for purposes of our analysis, we will focus on the class created by the challenged statute, ORS 107.108, to determine whether the class that ORS 107.108 burdens is suspect.
Indeed, mother and father in this case have both remarried.
We accept father’s assertion that the law is based on that generalization for the purposes of argument only.
Cf. Hon. Rex Armstrong, Ruth M. Spetter and Wendie L. Kellington, Constitutional Limitations and Exactions, in Oregon State Bar CLE, Land Use Ch 14 at
Although, as father argues, there undoubtedly are divorced parents who are willing to contribute to their children’s education and married parents of equivalent economic circumstances who are not, that fact does not make the classification irrational. Crocker, 157 Or App at 662 (“A statute does not have to be perfect in order for it to be rational.”).
But cf. ORS 419B.400 {authorizes juvenile court that has assumed jurisdiction of a child to order parents to provide support for child, including a child attending school).
But cf. ORS 109.520; ORS 419B.552(l)(b) (support obligation terminates for children under 18 years of age who marry or are emancipated).
See Jobst, 434 US at 53 (“Differences in race, religion, or political affiliation could not rationally justify a difference in eligibility for social security benefits, for such differences are totally irrelevant to the question whether one person is economically dependent on another. But a distinction between married persons and unmarried persons is of a different character.”).
Because father has not produced any direct evidence that the legislature was motivated by animus against men in enacting ORS 107.108 and because the burdened and benefitted classes under ORS 107.108 contain both men and women, the Supreme Court’s analysis in Aiello also forecloses father’s suggestion that ORS 107.108 discriminates based on gender. Aiello, 417 US at 496 n 20.
We assume for purposes of argument that the right to divorce is part of, and entitled to the same degree of protection as, the right to marry. See, e.g., Boddie v. Connecticut, 401 US 371, 376, 91 S Ct 780, 28 L Ed 2d 113 (1971) (implying that the right to divorce is part of the fundamental right to marry).
Although both children are joint children in this case, see OAR 137-050-0320(1X1997), one way to implement the court’s decision to deviate from the guidelines in order to cover more of daughter’s educational expenses would be to treat daughter as a nonjoint child for purposes of calculating son’s award. However, a decision to consider a joint child as a nonjoint child would itself be a deviationfrom the guidelines that would require findings to support it.
ORS 107.135(2)(a) (1997) provides that ‘Tal substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.