In re the Marriage of Berry
In re the Marriage of Berry
Opinion of the Court
Father appeals from a judgment modifying his child support obligations. We review de novo, ORS 19.415(3) (2001), and reverse and remand for recalculation of child support.
Mother filed a motion for modification of child support and a motion to hold husband in contempt due to his alleged failure to pay past child support. Mother sought to have the amount of child support increased based on father’s increased income and on the expenses of their eldest son, Graham, who is attending Tulane University.
Although mother and father had voluntarily agreed to pay for Graham’s schooling for his freshman year, mother wanted father’s obligation to pay for Graham’s schooling included in father’s child support obligation because of his history of noncompliance with prior court orders. Father objected and no longer agreed that Graham should attend a private university.
The trial court’s judgment required father to pay the presumed child support amount of $1,857 a month and, “[a]s further child support, the balance of Graham’s published educational expenses (tuition, room, board, fees and books) after loans, grants, and scholarships * * *. Consistent with the allocation of income, [mother] shall pay 22.8% and [father] shall pay 77.2%.” Tulane University’s annual total costs are approximately $35,000.
We begin by addressing whether father preserved his first assignment of error that the judgment modifying his child support obligation violated the guidelines. Mother vigorously argues that father did not preserve the errors of which he complains. We disagree. Father objected to “any child support in excess of the presumptively correct amount as set forth in the guidelines.”
Turning to the merits, father argues that the trial court erred in not making the required findings to deviate from the presumptive child support obligation under the guidelines. ORS 25.280 and former OAR 137-050-0330(2)(b) (2002), renumbered as OAR 137-0050-0333(2) (2004)
Next, father argues that any increased child support obligation for Graham’s school costs awarded as a separate, indeterminate amount is improper. In Wiebe and Wiebe, 113 Or App 535, 833 P2d 333 (1992), we held a similar indeterminate child support award to be invalid. We stated that “[t]he educational expenses of a child may justify a deviation from the presumed amount of child support provided by the guidelines, * * * but those expenses are a part of, and not in addition to, a child support obligation * * Id. at 538 (emphasis in original).
When determining whether a deviation is warranted, the plain language of OAR 137-050-0333(2) is instructive. It provides, in part, that “[a] new support amount shall be calculated by determining an appropriate dollar value to be attributed to the rebuttal criteria upon which the finding was based and by making an appropriate adjustment to the calculation.” (Emphasis added.)
Applying those principles, we hold that the trial court erred in setting child support for Graham’s school costs as a separate, indeterminate amount. On remand, the trial court should consider Graham’s educational needs as one of the factors in determining whether to deviate from the presumed amount and should assign an “appropriate dollar value” to the new amount if the court finds that a deviation is justified. Because we remand this case to the trial court for recalculation of child support, we need not address father’s argument that he should not be required to pay for Graham to attend a private university. Graham’s educational needs are factors to be considered by the trial court in determining
Reversed and remanded for recalculation of child support; otherwise affirmed.
The legislature amended ORS 19.415(3) in 2003. Or Laws 2003, ch 576, § 88 (“Upon an appeal from a [decree] judgment in a case that constituted a suit in equity under common law, the Court of Appeals shall try the cause anew upon the record.” (Additions in boldface; deletions italicized in brackets.)). We need not decide whether the 2003 amendments to ORS 19.415(3) affect our standard of review because those amendments apply to the appeal of judgments that were entered on or after January 1,2004. See Or Laws 2003, ch 576, § 90a (“The amendments to ORS * * * 19.415 * * * by sections 85 to 89 of this 2003 Act apply only to the appeal of judgments entered on or after the effective date of this 2003 Act. Any appeal of a judgment entered before the effective date of this 2003 Act shall continue to be governed by the law in effect on the day immediately preceding the effective date of this 2003 Act.”). Based on the plain meaning of the text of Oregon Laws 2003, chapter 576, section 90a, we apply the 2001 version of ORS 19.415(3) in this case. But see Kunze and Kunze, 337 Or 122, 124, 92 P3d 100 (2004) (citing the current version of ORS 19.415(3) in addressing a judgment that was entered before January 1, 2004).
Because the substance of this rule has not been changed, we will hereinafter refer to the rule as it is currently numbered.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.