In the Matter of the Marriage of Debbie Jane WILLIS, Petitioner, and Jerry Don WILLIS, Respondent. STATE ex rel Debbie Jane WILLIS, Respondent on Review, v. Jerry Don WILLIS, Petitioner on Review.
CC 86P-2328; CA A66506; SC S38753
Supreme Court of Oregon
Argued and submitted September 4, decision of Court of Appeals reversed and order of circuit court affirmed November 5, 1992
314 Or. 566 | 840 P.2d 697
Michael Ross, Deputy District Attorney, Dallas, argued the cause for respondent on review.
GRABER, J.
Unis, J., filed a concurring opinion in which Fadeley, J., joined.
In this domestic relations case, the circuit court modified father‘s child support obligation based on a reduction of father‘s financial status resulting in part from his incarceration. The Court of Appeals reversed the modification order, holding that father was barred from seeking a modification under the equitable doctrine of “unclean hands.” Willis and Willis, 109 Or App 584, 820 P2d 858 (1991). We reverse the decision of the Court of Appeals and affirm the order of the circuit court.
The parties were married in 1972 and were divorced in 1986. The dissolution judgment granted custody of the parties’ two children to mother and ordered father to pay a total of $300 per month in child support. In April 1988, father was ordered to pay an additional $50 per month until an outstanding arrearage was satisfied.
In September 1989, father was arrested for possession of a controlled substance. At the time of the arrest, police observed various items of value at father‘s residence. Father testified at the modification hearing that some of those items, worth $14,000, were stolen from him after his arrest. Father had court-appointed counsel at his criminal trial, apparently because the court found him to be indigent at that time. Father was convicted and sentenced to a term of imprisonment. When he began his incarceration, in January 1990, father was current in his child support payments, but claimed to have assets of only $8.20.
In April 1990, father moved for modification of his child support obligation, asking that it be suspended until 60 days after his release from custody. He was released from custody on June 22, 1990, and began working about two weeks later, earning $5 per hour. The circuit court held a modification hearing in July 1990 and granted father‘s motion, relying on Edmonds and Edmonds, 53 Or App 539, 633 P2d 4 (1981). In Edmonds, the Court of Appeals held that a noncustodial parent is relieved from child support payments while incarcerated unless it is affirmatively shown that the incarcerated parent has sufficient income or assets to make the payments. In the present case, the circuit court found that father had neither income nor assets sufficient to
Mother appealed, and the Court of Appeals reversed. In doing so, the Court of Appeals expressly overruled Edmonds and Edmonds, supra. Willis and Willis, supra, 109 Or App at 586. We allowed review to interpret the statutory provisions that govern the question to be decided.
Neither the parties nor the Court of Appeals cited the dispositive authority:
“In considering under this section whether a change in circumstances exists sufficient for the court to reconsider spousal or child support provisions of a decree, the following provisions apply:
“* * * * *
“(b) If the motion for modification is one made by the obligor to reduce or terminate support, and if the obligee opposes the motion, the court shall not find a change in circumstances sufficient for reconsideration of support provisions, if the motion is based upon a reduction of the obligor‘s financial status resulting from the obligor‘s taking voluntary retirement, partial voluntary retirement or any other voluntary reduction of income or self-imposed curtailment of earning capacity, if it is shown that such action of the obligor was not taken in good faith but was for the primary purpose of avoiding the support obligation.”
In interpreting a statute, this court‘s task is to discern the intent of the legislature.
A person who is incarcerated after being convicted of a crime has committed a volitional act that may result in curtailment of earning capacity. Assuming that incarceration is a form of “self-imposed curtailment of earning capacity” within the meaning of
On the other hand, of course, incarceration alone does not demonstrate inability to meet an existing child support obligation. For example, some incarcerated persons may have substantial assets; some may have a reasonable opportunity to acquire future income and assets,
Here, father was incarcerated for possession of a controlled substance. At oral argument, mother conceded that father did not commit the crime or become incarcerated for the primary purpose of avoiding his support obligation. Therefore, father was not foreclosed from demonstrating a change in circumstances based on a reduction of his financial status.
It is undisputed that father had no income while incarcerated. On de novo review, the Court of Appeals accepted father‘s testimony that his assets were stolen, Willis and Willis, supra, 109 Or App at 586, and we also accept that testimony. Father‘s remaining assets were insufficient to enable him to meet his support obligations during his incarceration. Accordingly, the circuit court did not err when it found a substantial change in circumstances and ordered that father‘s child support obligation be modified.
The decision of the Court of Appeals is reversed. The order of the circuit court is affirmed.
UNIS, J., concurring.
I join with the majority opinion, but write separately to make one point. I would not assume, as does the majority, that “incarceration is a form of ‘self-imposed curtailment of earning capacity.‘” 314 Or at 570. Although I agree with the majority that a crime is a volitional act, id., and it is clear that incarceration based on a crime is based on a volitional act, I
Fadeley, J., joins in this concurring opinion.