Divorce — Case Law Update — Child Support Modification

In Handley and Handley, 282 Or App 255 (2016), the Oregon Court of Appeals issued an opinion regarding modification of child support when a minor child voluntarily began living full-time with one parent.

Pursuant to the underlying divorce judgment, Mother had legal custody and 59 percent of the parenting time, with the remaining 41 percent belonging to Father. Because Mother's income was higher than Father's, she paid Father child support of $186 per month. In 2014, both parties filed motions to modify the parenting aspects of the judgment. The parties reached an agreement that there would be no set parenting plan and the child would "be entitled to determine if and when she wants to spend time with either parent," with that parent having sole legal and physical custody. Since the child had been living exclusively with Father for several months by the time the agreement was reached, the agreement provided that Father had sole legal and physical custody at that time. The only remaining issue for the court was whether child support would be modified to reflect Father's sole custody.

The trial court found that there had not been a "substantial change of circumstances" (see ORS 107.135(3)(a)) because there was no set parenting plan in place to determine how much time the child would spend with each parent. The trial court therefore denied Father's request to increase his child support award.

The Oregon Court of Appeals reversed the trial court's denial of Father's request to modify his child support upward. The Court of Appeals noted that the time the child was living with Father had in fact more than doubled — from 41 percent to 100 percent — and that there was no indication the child was going to move out.