Oberg v. Oberg, WD
Decision Date | 21 December 1993 |
Docket Number | No. WD,WD |
Citation | 869 S.W.2d 235 |
Parties | Ervilla Suann OBERG, Respondent, v. Travis Dean OBERG, Appellant. 47314. |
Court | Missouri Court of Appeals |
David P. Chamberlain, Liberty, for appellant.
Linda Ray-McKenna, Jefferson City, for respondent.
Before KENNEDY, P.J., and ULRICH and SPINDEN, JJ.
Travis Dean Oberg appeals from an order denying his motion to modify the decree of dissolution. Mr. Oberg contends that the trial court erred by failing to reduce his child support obligation because he is incarcerated and his income is substantially reduced.
The judgment of the trial court is affirmed.
The parties' marriage was dissolved by the trial court on November 14, 1991. The decree of dissolution awarded custody of the parties' two minor children to Ervilla Suann (Oberg) Ford, and ordered Mr. Oberg to pay child support in the amount of $25.00 per week per child. At the time of the dissolution, Mr. Oberg was employed selling cellular telecommunications equipment and air time, and he was earning an income of approximately $3,000.00 per month. Prior to selling telecommunications equipment, Mr. Oberg had sold insurance.
Approximately one month after the decree of dissolution, Mr. Oberg was incarcerated. He was convicted of two counts of stealing by deceit and three counts of forgery and was sentenced to one seven-year sentence and four three-year sentences.
On April 14, 1992, Mr. Oberg filed a motion to modify the decree of dissolution, seeking a reduction in his child support obligation because his income as a convicted incarcerated prisoner was substantially reduced. Mr. Oberg testified that, as a prisoner, his current income is $15.00 per month. Mr. Oberg also testified at the hearing on his motion to modify that he expected to be released in November of 1993. Mr. Oberg's motion was denied by the trial court.
As his sole point on appeal, Mr. Oberg claims that the trial court erred by not reducing his child support obligation because of his incarceration and diminished income. Mr. Oberg contends that such a reduction is proper because, as a result of his incarceration, his income dropped from $3,000.00 a month to $15.00 a month.
Whether incarceration is a change in circumstances warranting modification of a child support obligation has not been addressed by any published Missouri appellate court decision. Other state courts are divided over whether imprisonment resulting from lawful conviction should result in a reduction or suspension of the noncustodial parent's child support obligation.
Some courts have denied modification because, despite the incarcerated parent's current lack of income, he or she possessed other assets against which the support obligation could be charged. Noddin v. Noddin, 123 N.H. 73, 455 A.2d 1051 (1983) ( ); Proctor v. Proctor, 773 P.2d 1389 (Utah App.1989) ( ).
Some courts have determined that incarceration does not justify reduction or suspension of child support payments regardless of whether an incarcerated parent has other available assets. In re Marriage of Phillips, 493 N.W.2d 872 (Iowa App.1992) ( ); Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985) ( ); Cole v. Cole, 70 Ohio App.3d 188, 590 N.E.2d 862 (1990) ( ); In re Marriage of Willis, 109 Or.App. 584, 820 P.2d 858 (1991) rev'd, 314 Or. 566, 840 P.2d 697 (1992) ( ). However, most of the courts which have determined that incarceration does not justify reduction or suspension of child support payments, regardless of whether the incarcerated parent has other available assets, have also ruled that the postincarceration collection of the arrearages must be flexible and consider the parent's postrelease financial circumstances. Davis v. Vance, 574 N.E.2d 330 (Ind.App.1991) ( ); Mooney v. Brennan, 257 Mont. 197, 848 P.2d 1020 (1993) ( ); Koch v. Williams, 456 N.W.2d 299 (N.D.1990) ( ); Parker v. Parker, 152 Wis.2d 1, 447 N.W.2d 64 (1989) ( ).
Some courts have followed an Oregon Court of Appeals decision which was overruled in 1991, 1 and have adopted the rule that, where a noncustodial parent is imprisoned for a crime other than nonsupport, the parent is not liable for child support payments while incarcerated unless it is affirmatively shown that he or she has income or assets to make such payments. Clemans v. Collins, 679 P.2d 1041 (Alaska 1984) ( ); Commissioner of Human Resources v. Bridgeforth, 42 Conn.Supp. 126, 604 A.2d 836 (1992) ( ); Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (App.1988) ( ); People ex rel. Meyer v. Nein, 209 Ill.App.3d 1087, 154 Ill.Dec. 436, 568 N.E.2d 436 (1991) ( ); Pierce v. Pierce, 162 Mich.App. 367, 412 N.W.2d 291 (1987) ( ); Johnson v. O'Neill, 461 N.W.2d 507 (Minn.App.1990) ( ); Kuronen v. Kuronen, 499 N.W.2d 51 (Minn.App.1993) ( ); Foster v. Foster, 99 A.D.2d 284, 471 N.Y.S.2d 867, 869 (1984) ( ). Peters v. Peters, 69 Ohio App.3d 275, 590 N.E.2d 777 (1990) ( ); Leasure v. Leasure, 378 Pa.Super. 613, 549 A.2d 225 (1988) ( ); Glenn v. Glenn, 848 P.2d 819 (Wyo.1993) (...
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