Smith v. Smith

• Decision Date: 24 March 1981
• Docket Number: No. 71-3146,71-3146
• Citation: 626 P.2d 342,290 Or. 675
• Parties: Denise H. SMITH, now known as Denice H. Cogburn, Petitioner, v. Andrew L. SMITH, Respondent. ; CA 16098; SC 27080.
• Court: Oregon Supreme Court

Page 342

626 P.2d 342

290 Or. 675

Denise H. SMITH, now known as Denice H. Cogburn, Petitioner, v. Andrew L. SMITH, Respondent.

No. 71-3146; CA 16098; SC 27080.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 8, 1980.

Decided March 24, 1981.

Timothy J. Helfrich of E. B. Sahlstrom Law Offices, Eugene, argued the cause and filed the briefs for petitioner.

Robert J. McCrea of Morrow, McCrea & Divita, P. C., Eugene, argued the cause and filed the brief for respondent.

Before DENECKE, C. J., and TONGUE, HOWELL, ^* LENT, LINDE, PETERSON and TANZER, JJ.

DENECKE, Chief Justice.

This is a proceeding to modify a marriage dissolution decree. At issue is the amount of child support for the one child of the marriage. After an eight-year lapse since the original decree, the trial court increased the support to be paid by the father, currently earning net monthly income of $1,300, from $50 per month to $100 per month, along with health, medical and dental insurance. The Court of Appeals affirmed without opinion. 46 Or.App. 84, 609 P.2d 1322 (1980).

The mother, in her petition for review, contends that the amount of child support is still grossly inadequate under the "just and proper" standard of ORS 107.105(1)(b), and that the standards by which the courts fix a child support amount have been very general and imprecise. We granted review to consider generally the proper approach in determining the amount of child support. In particular we asked the parties to address the following question in argument:

"What, if any, 'guidelines' should be established by the court for application by trial courts in fixing the amounts payable for child support in suits for dissolution of marriages?"

We will discuss this general question involving the award of child support before considering the specific facts of the present case.

In a dissolution case, ORS 107.105(1)(b) empowers the court to provide:

"For the recovery from the party not allowed the care and custody of such children, or from either party or both parties if joint custody is decreed, such amount of money, in gross or in installments, or both, as may be just and proper for such party, either party or both parties to contribute toward the support and welfare of such children. * * *" (Emphasis added.)

As was the case in Grove and Grove, 280 Or. 341, 571 P.2d 477 (1977), in which we considered the guidelines for determining the amounts payable for and the duration of spousal support, we must begin our discussion with some general observations. First, the issue of child support cannot adequately be considered except in the light of the provisions of the dissolution decree in regard to the division of property and spousal support. This interrelationship has been recognized both by the legislature (See, ORS 107.105(1)(c) §§ (E), (F) and (G)) and by this court. Grove and Grove, supra, 280 Or. at 344, 571 P.2d 477.

In practice, also, the interrelationship affects every part of the decree. For example, one spouse may be awarded specific assets as a part of the property division so as to provide the spouse with income for the support of the child or to decrease the expenses of upbringing the child, or the child may benefit from spousal support payments insofar as they are applied to housing and household maintenance. The tax consequences of the characterization of a payment either as child support or as spousal support makes the interrelationship even more evident. ¹ Such matters must be considered in determining the just and proper contribution of a party toward the support and welfare of the child.

Second, child support itself may take forms other than direct monetary contribution. It may take the form of payments for medical care (Coastal Adjustments v. Wehner, 246 Or. 115, 423 P.2d 967 (1967)), life insurance in the child's name on a parent's life (Cooley v. Cooley, 1 Or.App. 223, 461 P.2d 65 (1969)), a trust for the child's education (Rinehart and Rinehart, 26 Or.App. 513, 552 P.2d 1346 (1976)), or hospital, medical or dental insurance. All such forms of indirect support must be included in determining the just and proper contribution of a parent toward the support and welfare of the child.

Third, the cases which concern matters of child support reaching the appellate courts may not be representative of most marriage dissolution cases. The cases which are appealed are, with some exceptions, those in which the parties' incomes or assets, or both, are large enough to allow some flexibility in the award of child support without depriving either party of the basic necessities of life. The holding in this case applies to such situations. ²

The present case is typical of those which the Court of Appeals has often considered. The parties have one child. At the time of the original decree the child was three years old and custody was given to the mother. Eight years later at the time of the modification proceeding, the father's net income was $1,348/month and his present wife, for medical reasons, did not work outside of the home. The mother had take home pay of approximately $1,100/month and received $100/month child support; in addition, her present husband received $364/month in Social Security disability payments and her child received $96.40/month from Social Security. The mother claimed household expenses in excess of $2,000/month but the father contested that estimate.

The legislature gave only limited guidance in ORS 107.105(1)(b); it listed no factors which are to be considered by the courts in awarding child support. Since the legislature gave no specific directions for determining what is "just and proper," the trial and appellate courts are left to make that determination.

It is significant that the legislature chose to express the standard in terms of what is "just and proper" rather than solely in terms of need. We have concluded, in light of this choice, that the purpose of child support is not merely to prevent the child from becoming a public charge. Thus, we have considered, at least as far as practical, "comforts and luxuries of life" that the child would have enjoyed had it not been for the dissolution. Trombley v. Trombley, 225 Or. 209, 211, 357 P.2d 283 (1960); and see Newman v. Newman, 8 Or.App. 220, 222, 493 P.2d 71 (1972).

All of the circumstances of the parties as well as the needs of the children must be considered. Dietz and Dietz, 271 Or. 445, 533 P.2d 783 (1975). One such circumstance is often the impossibility of maintaining the same lifestyle that the child would have enjoyed but for the dissolution. In that situation, the child must share the overall burden of the lower standard of living caused by the expense of maintaining two separate households. In considering the circumstances of the parties, it is reasonable to require the party with the greater earning capacity to bear a greater portion of the financial burden of the child's upbringing. See Weiser and Weiser, 29 Or.App. 549, 552, 564 P.2d 737 (1977). Yet the burden on the one paying support should not be so heavy as to preclude the ability to support oneself and one's other dependents. See Hockema v. Hockema, 18 Or.App. 273, 524 P.2d 1238 (1974).

Although each case must be considered on its own facts, it is proper to develop general principles to the end that similar cases will be treated similarly. To date such principles in the child support area have included only those enumerated above. Since the principles are few and the appearance of uniformity among support orders is lacking, as a sample of recent decisions indicates (see Appendix), there is a need for more uniformity among support orders consistent with typical differences of different families.

In response to our request for a guideline which this court could furnish to the trial courts for application in fixing the amounts payable for child support, the mother on oral argument suggested a system based on the noncustodial parent's "ability to pay" and the child's "needs." Under that system the net income of the paying parent would be the most significant factor in determining the "ability to pay." The child's "needs" would be defined in the same respect as with spousal support; that is, they would be geared to the standard of living that would have been enjoyed but for the dissolution. Yet "need" would also be based on evidence of actual, necessary expenses and the expected costs of child rearing. The award would be determined by using the rules of the Support Enforcement Division, OAR 137-50-010 as a touchstone. Then, to allow for the special circumstances involved in each case, any evidence relevant either to "ability to pay" or to "need" would be admissible and considered by the courts, with the ultimate decision as to the amount of support in each case being within the discretion of the court.

We accept the mother's analysis insofar as it is based on the noncustodial parent's ability to pay and the child's needs, but we cannot accept her suggestion that we follow the rules of the Support Enforcement Division. The rules include a scale which determines the amount of support as based on the payor's net income, along with a formula to alter that amount depending on the special circumstances of the case. The scale figure is determined by taking a set percentage of the noncustodial parent's monthly net income, the percentage being dependent on the number of children: 22% of net income for one child; 33% of net income for two children; 40% of net income for three children; and 46% of net income for four or more children. Once the scale figure is determined, it is adjusted upward or downward according to the following formula factors:

"a. Needs of the child;

b. Earnings potential of the obligor;

c. Obligor's ability to borrow;

d. The amount of equity the obligor has in real and personal property;

e. Existence of other dependents of the obligor;

f. The amount of support the obligor is required...