In Handley and Handley, 282 Or App 255 (2016), the Oregon Court of Appeals issued an opinion regarding modifying child support when the minor child voluntarily began living full-time with one parent.
Pursuant to the underlying divorce judgment (and subsequent supplements to the judgment), Mother had legal custody and 59 percent of the parenting time (leaving 41% for Father). Because her income was higher than Father’s, Mother paid father child support of $186 per month. In 2014, Mother and Father both filed motions to modify the parenting aspects of the underlying judgments. 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,” and that parent would have sole legal and physical custody. Id. at 257. Since the child had been living with Father exclusively by her own wishes for several months at the point the agreement was reached, the agreement provided that, at that time, Father had sole legal and physical custody. The only matter left for the court to determine was whether child support would be modified to reflect the fact that Father had sole custody at the time the agreement was made.
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. Therefore, the trial court 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, in fact, the time the child was living with Father had more than doubled (from 41% to 100%), and that there was no indication that the child was going to move out: “The possibility that she might [move out of Father’s home] at some unspecified point in the future was not a proper basis for declining to reconsider mother’s child support obligation in light of the fact that the child had been living with father on a full-time basis and was continuing to do so.” Handley at 258.
The child support issue was reversed and remanded to the trial court to determine the proper amount of child support that would be awarded to Father.
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