2015 ORS 107.135¹
Vacation or modification of judgment
  • policy regarding settlement
  • enforcement of settlement terms
  • remedies

(1) The court may at any time after a judgment of annulment or dissolution of marriage or of separation is granted, upon the motion of either party and after service of notice on the other party in the manner provided by ORCP 7, and after notice to the Division of Child Support when required under subsection (9) of this section:

(a) Set aside, alter or modify any portion of the judgment that provides for the appointment and duties of trustees, for the custody, parenting time, visitation, support and welfare of the minor children and the children attending school, as defined in ORS 107.108 (Support or maintenance for child attending school), including any health or life insurance provisions, for the support of a party or for life insurance under ORS 107.820 (Support order as insurable interest) or 107.830 (Physical examination may be ordered);

(b) Make an order, after service of notice to the other party, providing for the future custody, support and welfare of minor children residing in the state, who, at the time the judgment was given, were not residents of the state, or were unknown to the court or were erroneously omitted from the judgment;

(c) Terminate a duty of support toward any minor child who has become self-supporting, emancipated or married;

(d) After service of notice on the child in the manner provided by law for service of a summons, suspend future support for any child who has ceased to be a child attending school as defined in ORS 107.108 (Support or maintenance for child attending school); and

(e) Set aside, alter or modify any portion of the judgment that provides for a property award based on the enhanced earning capacity of a party that was awarded before October 23, 1999. A property award may be set aside, altered or modified under this paragraph:

(A) When the person with the enhanced earning capacity makes a good faith career change that results in less income;

(B) When the income of the person with the enhanced earning capacity decreases due to circumstances beyond the persons control; or

(C) Under such other circumstances as the court deems just and proper.

(2) When a party moves to set aside, alter or modify the child support provisions of the judgment:

(a) The party shall state in the motion, to the extent known:

(A) Whether there is pending in this state or any other jurisdiction any type of support proceeding involving children of the marriage, including one brought under ORS 25.287 (Proceedings to modify orders to comply with formula), 107.431 (Modification of portion of judgment regarding parenting time or child support), 109.100 (Petition for support), 125.025 (Authority of the court in protective proceedings), 416.400 (Definitions for ORS 416.400 to 416.465) to 416.465 (Relief from compliance with order), 419B.400 (Authority to order support) or 419C.590 (Authority of court to order support) or ORS chapter 110; and

(B) Whether there exists in this state or any other jurisdiction a support order, as defined in ORS 110.503 (Definitions), involving children of the marriage, other than the judgment the party is moving to set aside, alter or modify.

(b) The party shall include with the motion a certificate regarding any pending support proceeding and any existing support order other than the judgment the party is moving to set aside, alter or modify. The party shall use a certificate that is in a form established by court rule and include information required by court rule and paragraph (a) of this subsection.

(3) In a proceeding under this section to reconsider the spousal or child support provisions of the judgment, the following provisions apply:

(a) A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of an involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse.

(b) If the judgment provided for a termination or reduction of spousal support at a designated age in anticipation of the commencement of pension, Social Security or other entitlement payments, and if the obligee is unable to obtain the anticipated entitlement payments, that inability is sufficient change in circumstances for the court to reconsider its order of support.

(c) If Social Security is considered in lieu of spousal support or partial spousal support, the court shall determine the amount of Social Security the party is eligible to collect. The court shall take into consideration any pension, retirement or other funds available to either party to effect an equitable distribution between the parties and shall also take into consideration any reduction of entitlement caused by taking early retirement.

(4) In considering under this section whether a change in circumstances exists sufficient for the court to reconsider spousal or child support provisions of a judgment, the following provisions apply:

(a) The court or administrator, as defined in ORS 25.010 (Definitions for support enforcement laws), shall consider income opportunities and benefits of the respective parties from all sources, including but not limited to:

(A) The reasonable opportunity of each party, the obligor and obligee respectively, to acquire future income and assets.

(B) Retirement benefits available to the obligor and to the obligee.

(C) Other benefits to which the obligor is entitled, such as travel benefits, recreational benefits and medical benefits, contrasted with benefits to which the obligee is similarly entitled.

(D) Social Security benefits paid to a child, or to a representative payee administering the funds for the childs use and benefit, as a result of the obligors disability or retirement if the benefits:

(i) Were not previously considered in the child support order; or

(ii) Were considered in an action initiated before May 12, 2003.

(E) Apportioned Veterans benefits or Survivors and Dependents Educational Assistance under 38 U.S.C. chapter 35 paid to a child, or to a representative payee administering the funds for the childs use and benefit, as a result of the obligors disability or retirement if the benefits:

(i) Were not previously considered in the child support order; or

(ii) Were considered in an action initiated before May 12, 2003.

(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 obligors financial status resulting from the obligors 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 any subsequent motion for modification, the court shall deny the motion if the sole basis of the motion for modification is the termination of voluntarily taken retirement benefits and the obligor previously has been found not to have acted in good faith.

(c) The court shall consider the following factors in deciding whether the actions of the obligor were not in good faith:

(A) Timing of the voluntary retirement or other reduction in financial status to coincide with court action in which the obligee seeks or is granted an increase in spousal support.

(B) Whether all or most of the income producing assets and property were awarded to the obligor, and spousal support in lieu of such property was awarded to the obligee.

(C) Extent of the obligors dissipation of funds and assets prior to the voluntary retirement or soon after filing for the change of circumstances based on retirement.

(D) If earned income is reduced and absent dissipation of funds or large gifts, whether the obligor has funds and assets from which the spousal support could have been paid.

(E) Whether the obligor has given gifts of substantial value to others, including a current spouse, to the detriment of the obligors ability to meet the preexisting obligation of spousal support.

(5) Upon terminating a duty of spousal support, a court shall make specific findings of the basis for the termination and shall include the findings in the judgment.

(6) Any modification of child or spousal support granted because of a change of circumstances may be ordered effective retroactive to the date the motion for modification was served or to any date thereafter.

(7) The judgment is final as to any installment or payment of money that has accrued up to the time the nonmoving party, other than the state, is served with a motion to set aside, alter or modify the judgment. The court may not set aside, alter or modify any portion of the judgment that provides for any payment of money, either for minor children or for the support of a party, that has accrued before the motion is served. However:

(a) The court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or judgment, during which the obligor, with the knowledge and consent of the obligee or pursuant to court order, has physical custody of the child; and

(b) The court may allow, as provided in the rules of the Child Support Program, a dollar-for-dollar credit against child support arrearages for any Social Security or Veterans benefits paid retroactively to the child, or to a representative payee administering the funds for the childs use and benefit, as a result of an obligors disability or retirement.

(8) In a proceeding under subsection (1) of this section, the court may assess against either party a reasonable attorney fee and costs for the benefit of the other party. If a party is found to have acted in bad faith, the court shall order that party to pay a reasonable attorney fee and costs of the defending party.

(9) Whenever a motion to establish, modify or terminate child support or satisfy or alter support arrearages is filed and the child support rights of one of the parties or of a child of both of the parties have been assigned to the state, a true copy of the motion shall be served by mail or personal delivery on the Administrator of the Division of Child Support of the Department of Justice or on the branch office providing support services to the county in which the motion is filed.

(10)(a) Except as provided in ORS 109.701 (Short title) to 109.834 (Severability clause), the courts of Oregon, having once acquired personal and subject matter jurisdiction in a domestic relations action, retain such jurisdiction regardless of any change of domicile.

(b) The courts of Oregon, in a proceeding to establish, enforce or modify a child support order, shall recognize the provisions of the federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. 1738B).

(11) In a proceeding under this section to reconsider provisions in a judgment relating to custody or parenting time, the court may consider repeated and unreasonable denial of, or interference with, parenting time to be a substantial change of circumstances.

(12) In a proceeding under this section to reconsider provisions in a judgment relating to parenting time, the court may suspend or terminate a parents parenting time with a child if the court finds that the parent has abused a controlled substance and that the parenting time is not in the best interests of the child. If a court has suspended or terminated a parents parenting time with a child for reasons described in this subsection, the court may not grant the parent future parenting time until the parent has shown that the reasons for the suspension or termination are resolved and that reinstated parenting time is in the best interests of the child. Nothing in this subsection limits the courts authority under subsection (1)(a) of this section.

(13) In a proceeding under this section to reconsider provisions in a judgment relating to custody, temporary placement of the child by the custodial parent pursuant to ORS 109.056 (Delegation of certain powers by parent or guardian) (3) with the noncustodial parent as a result of military deployment of the custodial parent is not, by itself, a change of circumstances. Any fact relating to the child and the parties occurring subsequent to the last custody judgment, other than the custodial parents temporary placement of the child pursuant to ORS 109.056 (Delegation of certain powers by parent or guardian) (3) with the noncustodial parent, may be considered by the court when making a change of circumstances determination.

(14) Within 30 days after service of notice under subsection (1) of this section, the party served shall file a written response with the court.

(15)(a) It is the policy of this state:

(A) To encourage the settlement of cases brought under this section; and

(B) For courts to enforce the terms of settlements described in paragraph (b) of this subsection to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.

(b) In a proceeding under subsection (1) of this section, the court may enforce the terms set forth in a stipulated order or judgment signed by the parties, an order or judgment resulting from a settlement on the record or an order or judgment incorporating a settlement agreement:

(A) As contract terms using contract remedies;

(B) By imposing any remedy available to enforce an order or judgment, including but not limited to contempt; or

(C) By any combination of the provisions of subparagraphs (A) and (B) of this paragraph.

(c) A party may seek to enforce an agreement and obtain remedies described in paragraph (b) of this subsection by filing a motion, serving notice on the other party in the manner provided by ORCP 7 and, if a remedy under paragraph (b)(B) of this subsection is sought, complying with the statutory requirements for that remedy. All claims for relief arising out of the same acts or omissions must be joined in the same proceeding.

(d) Nothing in paragraph (b) or (c) of this subsection limits a partys ability, in a separate proceeding, to file a motion to modify an order or judgment under subsection (1) of this section or to seek enforcement of an ancillary agreement to the order or judgment. [1971 c.280 §16; 1973 c.502 §9; 1981 c.775 §2a; 1981 c.855 §1; 1983 c.728 §3; 1983 c.761 §9; 1987 c.795 §10; 1987 c.885 §3; 1989 c.545 §1; 1991 c.888 §2; 1993 c.315 §2; 1995 c.22 §2; 1997 c.91 §1; 1997 c.475 §6; 1997 c.704 §52; 1997 c.707 §9; 1999 c.80 §65; 1999 c.587 §2; 1999 c.1030 §2; 2001 c.104 §32; 2001 c.203 §4; 2001 c.334 §4; 2003 c.14 §41; 2003 c.116 §4; 2003 c.419 §1; 2003 c.572 §13a; 2003 c.576 §§112,112a,112b; 2005 c.708 §6; 2007 c.611 §11; 2009 c.80 §5; 2015 c.298 §90]

Notes of Decisions

In General

Legislative intent was to empower court to provide parental support in modifica­tion pro­ceed­ings for child attending school as defined in ORS 107.108 (Support or maintenance for child attending school). State ex rel Wick v. Wick, 37 Or App 125, 586 P2d 400 (1978)

Accrued child support pay­ments accumulated in trust account were not subject to modifica­tion and could not be set aside for misbehavior of custodial parent. Jacot v. Jacot, 37 Or App 803, 588 P2d 122 (1978), Sup Ct review denied

Where case is ap­pealed, substantial change in circumstances is measured from date of trial court hearing ap­pealed from. Lundgren and Lundgren, 39 Or App 135, 591 P2d 763 (1979), Sup Ct review denied

Where trust for mi­nor child was es­tab­lished by third party prior to dissolu­tion, trial court lacked jurisdic­tion over trust corpus. Melkonian and Melkonian, 55 Or App 586, 639 P2d 662 (1982)

Court retains per­sonal jurisdic­tion over party to dissolu­tion pro­ceed­ing notwithstanding change in residency and passage of time. Carlin v. Carlin, 62 Or App 350, 660 P2d 204 (1983)

Nothing in this sec­tion authorizes court to order one spouse to pay money necessary to enable other spouse to appear in opposi­tion to mo­tion for modifica­tion of decree. Nickerson and Nickerson, 296 Or 516, 678 P2d 730 (1984); Scholze and Scholze, 68 Or App 679, 682 P2d 827 (1984), Sup Ct review denied

Filing of mo­tion in trial court for modifica­tion of support order was nullity where ap­peal was pending; overruling Wilson v. Wilson, 242 Or 201, 407 P2d 898, 408 P2d 940 (1965). Nickerson and Nickerson, 296 Or 516, 678 P2d 730 (1984)

Increase in husbands income and decrease in his expenses because parties children were emancipated, thus ending his duty to support them, taken together, do not constitute substantial change of circumstances. Barron and Barron, 85 Or App 278, 736 P2d 583 (1987)

Adjust­ment made in modifica­tion pro­ceed­ing must be limited to amount that allows parties to adjust to unanticipated change in circumstances. Maier and Maier, 137 Or App 15, 902 P2d 1214 (1995), Sup Ct review denied

Facts sufficient to show change in circumstance justifying modifica­tion for either child support or spousal support pay­ment necessarily show sufficient change to justify modifica­tion for both pay­ments. Eidlin and Eidlin, 140 Or App 479, 916 P2d 338 (1996)

Court may not approve stipula­tion that deprives court of authority to modify award. Heinonen and Heinonen, 171 Or App 37, 14 P3d 96 (2000)

Court may enforce agree­ment between parents not to seek modifica­tion of child support terms in stipulated dissolu­tion judg­ment unless enforcing agree­ment would violate law or contravene public policy. Matar and Harake, 353 Or 446, 300 P3d 144 (2013)

Custody Awards

While immoral con­duct standing alone may be insufficient to justify a change in custody, any moral transgressions must be considered together with other relevant factors in determining what is the best interests of the children. Mace v. Mace, 9 Or App 435, 497 P2d 677 (1972)

The party seeking modifica­tion must show a change of circumstances sufficient to support a modifica­tion and present substantial evidence that the best interest of the children would be served thereby. Rorer v. Rorer, 10 Or App 479, 500 P2d 734 (1972)

Where erroneous order transferring custody is not stayed, parent right to ap­peal order outweighs avoiding instability caused by retransfer of custody if ap­peal succeeds. Niedert and Niedert, 28 Or App 309, 559 P2d 515 (1977), Sup Ct review denied

Interference with parental visita­tion is not change in circumstances justifying change in custody unless in­ter­fer­ence is severe enough to constitute at­tempt to alienate child from noncustodial parent. Birge and Birge, 34 Or App 581, 579 P2d 297 (1978); Heuberger and Heuberger, 155 Or App 310, 963 P2d 153 (1998), Sup Ct review denied

Where initial place­ment was not result of judicial pro­ceed­ing, substantial change in circumstances is not prerequisite to changing custody based on best interest of child. Whitaker v. Glerup, 35 Or App 201, 580 P2d 1073 (1978)

Court may award temporary custody at time dissolu­tion decree issues where excep­tional circumstances make award in best interest of child. Deffenbaugh and Deffenbaugh, 286 Or 759, 596 P2d 966 (1979)

Illegal con­duct of parent in absconding with child does not prevent considera­tion of resulting change in circumstances. State ex rel Johnson v. Bail, 325 Or 392, 938 P2d 209 (1997)

Establish­ment of substantial change in circumstances is prerequisite to courts considera­tion of best interest of child. Francois and Francois, 179 Or App 165, 39 P3d 265 (2002)

Maintenance of Children

Court granting order of custody retains jurisdic­tion over ques­tions of custody and support. Asbridge v. Lefever/Gekas, 15 Or App 563, 516 P2d 746 (1973)

Following mo­tion asking decree modifica­tion to provide support for oldest child until age 21, memorandum of law which notified father that mother intended to seek modifica­tion for three remaining children was akin to amend­ment of original mo­tion served on father, and father was thus given requisite notice as to three remaining children. Eusterman and Eusterman, 41 Or App 717, 598 P2d 1274 (1979)

Accrued support obliga­tions are not subject to modifica­tion. Alspaugh and Alspaugh, 44 Or App 505, 605 P2d 1386 (1980); Eagen and Eagen, 292 Or 492, 640 P2d 1019 (1982); Sheldon and Sheldon, 82 Or App 621, 728 P2d 946 (1986), Sup Ct review denied

Obligor parent could not reduce support obliga­tion by amount of childs social security benefits without court modifica­tion of obliga­tion. Cope and Cope, 49 Or App 301, 619 P2d 883 (1980), affd 291 Or 412, 631 P2d 781 (1981)

Where decree provides for support while attending college, lapse while children did not attend college does not prevent resurrec­tion of obliga­tion upon children beginning college. Riback and Riback, 59 Or App 670, 651 P2d 1089 (1982)

This sec­tion was not applicable to a determina­tion of whether support obliga­tion had ended because of childs emancipa­tion as no ques­tion of setting aside, altering or modifying a decree was involved. Ellis v. Ellis, 292 Or 502, 640 P2d 1024 (1982)

Noncustodial parent could not offset amount of prop­erty division improperly withheld by custodial parent against accrued child support obliga­tion. Bryant and Bryant, 70 Or App 443, 689 P2d 1025 (1984)

Change of circumstances occurs where there is inability or unwillingness to continue to cooperate in arrange­ment and one party believes that arrange­ment is unworkable. Swilling and Swilling, 97 Or App 384, 775 P2d 929 (1989); Horner and Horner, 119 Or App 112, 849 P2d 560 (1993)

Where original decree was not issued under Uniform Child Support Guide­lines, guide­lines apply where substantial change in circumstances warrants any change in support amount or where obliga­tion is collected through enforcing agency. Gay and Gay, 108 Or App 121, 814 P2d 543 (1991)

Ability to modify child support in later pro­ceed­ing does not prevent court from considering future changes in income in determining original award. Harper and Harper, 122 Or App 9, 856 P2d 334 (1993), Sup Ct review denied

Order for pro­vi­sion of health insurance coverage was child support obliga­tion includable in calcula­tion of arrearage. Ramberg and Ramberg, 123 Or App 281, 859 P2d 571 (1993)

Educa­tion expense of continuing student can justify devia­tion from amount of child support presumed under guide­lines. Seever and Seever, 124 Or App 54, 861 P2d 1038 (1993)

Court lacks authority to create trust through child support modifica­tion pro­ceed­ing. Stringer v. Brandt, 128 Or App 502, 877 P2d 100 (1994)

Unless decree is modified, child support obliga­tion cannot be satisfied by parties agreeing to substitute different performance. Forrester and Forrester, 147 Or App 319, 936 P2d 388 (1997), modified 149 Or App 111, 942 P2d 299 (1997)

Where substantial change in economic circumstances is sufficient for court to reconsider order of support, reconsidera­tion of proper child support amount is mandatory. Glithero and Glithero, 326 Or 259, 951 P2d 682 (1998)

Maintenance of Spouse; Stipulated Settle­ment and Remarriage

Fact that wife is currently, but was not pre­vi­ously, earning salary is but one circumstance which may properly be considered in allowing a modifica­tion of alimony award. Gueldenzopf v. Gueldenzopf, 7 Or App 298, 490 P2d 1042 (1971)

Substantial change in circumstances supporting modifica­tion requires change in ability of obligor spouse to pay or in obligee spouses need for support. Osterholme v. Osterholme, 13 Or App 73, 508 P2d 824 (1973); Case v. Case, 18 Or App 637, 526 P2d 467 (1974)

Where settle­ment agree­ment is incorporated into decree, parties are held to have contracted subject to courts authority to modify support. Copenhaver v. Copenhaver, 15 Or App 142, 515 P2d 185 (1973); Garnett v. Garnett, 270 Or 102, 526 P2d 549 (1974)

Increase in supporting spouse income does not in itself constitute sufficient change in circumstances to justify modifica­tion. Wells v. Wells, 15 Or App 507, 516 P2d 480 (1973)

When agree­ment between parties to divorce is incorporated into divorce decree, it loses its contractual nature and party must seek modifica­tion of support pro­vi­sions rather than reforma­tion. Davis v. Davis, 19 Or App 209, 527 P2d 149 (1974), Sup Ct review denied; Edwards and Edwards, 124 Or App 646, 863 P2d 513 (1993), as modified by 127 Or App 489, 873 P2d 401 (1994)

Court has authority to extend period of support beyond that provided for in original decree. McReynolds v. McReynolds, 24 Or App 891, 547 P2d 664 (1976)

Support pay­ments accruing after filing of mo­tion to modify are subject to en­force­­ment efforts although pay­ment obliga­tion is subject to later modifica­tion. Walker v. Walker, 26 Or App 701, 554 P2d 591 (1976), Sup Ct review denied

Use of periodic pay­ment schedule to provide income source to spouse does not convert interest in divisible prop­erty into spousal support. Horesky and Horesky, 30 Or App 941, 569 P2d 34 (1977), Sup Ct review denied

Decree that provides for spousal support should enjoin upon supported spouse duty to advise other party if and when supported spouse remarries. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), as modified by 280 Or 769, 572 P2d 1320 (1977)

Trial court lacked authority to renew spousal support pay­ments pursuant to mo­tion that was not filed until after expira­tion of limited time period during which support was re­quired to be paid under original decree. Park and Park, 43 Or App 367, 602 P2d 1123 (1979), Sup Ct review denied

Occurrence contemplated and provided for in spousal support agree­ment cannot be change in circumstances. Pope and Pope, 301 Or 42, 718 P2d 735 (1986); Porter and Porter, 100 Or App 401, 786 P2d 740 (1990), Sup Ct review denied

Remarriage of supported spouse may represent change in circumstances but it will not automatically terminate spousal support award because remarriage will not al­ways supplant purposes behind award. Bates and Bates, 303 Or 40, 733 P2d 1363 (1987); Smith and Smith, 103 Or App 614, 798 P2d 717 (1990), Sup Ct review denied, on reconsidera­tion 108 Or App 335, 813 P2d 1137 (1991); Grage and Grage, 109 Or App 311, 819 P2d 322 (1991)

Court could not require yearly physical examina­tions of spouse. Baumgartner and Baumgartner, 95 Or App 723, 770 P2d 965 (1989), Sup Ct review denied

Court lacked authority to award spousal support in modifica­tion pro­ceed­ing where support obliga­tion had been terminated by prior modifica­tion. Woita and Woita, 98 Or App 83, 778 P2d 504 (1989), Sup Ct review denied

Substantial deteriora­tion in wifes health may constitute changed circumstances, as could failure to improve if significant improve­ment was contemplated at time of original judg­ment. Polette and Polette, 99 Or App 327, 781 P2d 1253 (1989), Sup Ct review denied; Winnie and Winnie, 109 Or App 304, 818 P2d 1292 (1991), Sup Ct review denied

Income potentially available due to nonmarital domestic partnership could be considered as changed circumstance in same manner as income potentially available from remarriage. Bliven and Bliven, 106 Or App 93, 806 P2d 177 (1991); Bishop and Bishop, 137 Or App 112, 903 P2d 383 (1995); Morrison and Morrison, 139 Or App 137, 910 P2d 1176 (1996)

Where there was no substantial change of circumstances, court erred in setting date for termina­tion of spousal support in order to end support dependency rela­tionship. Hearing and Hearing, 122 Or App 337, 857 P2d 877 (1993)

Court lacked authority to retroactively reinstate suspended spousal support. Seever and Seever, 124 Or App 54, 861 P2d 1038 (1993)

Instruc­tion to trial court to modify award of spousal support effective upon entry of appellate judg­ment meant that trial court award of spousal support continued until superseded by modified award at time of entry of appellate judg­ment. Truitt and Truitt, 125 Or App 621, 866 P2d 497 (1994)

Where obligee spouse remarries, burden of proof is on obligor spouse to show that remarriage constitutes substantial change of circumstance justifying modifica­tion. Ganger and Little, 139 Or App 350, 911 P2d 1276 (1996)

Court may accept stipulated agree­ment of parties permitting addi­tional grounds for modifica­tion if stipulated agree­ment is not unfair and does not remove courts authority to modify on statutory grounds. Eidlin and Eidlin, 140 Or App 479, 916 P2d 338 (1996)

Where party is temporarily unable to meet support obliga­tion, proper remedy is modifica­tion of support amount, not temporary suspension of support obliga­tion. Cutting and Cutting, 147 Or App 30, 934 P2d 622 (1997)

Income of obligor spouse at time of modifica­tion is irrelevant in determining whether purpose of initial award of spousal support has been met. Moser and Gilmore, 184 Or App 377, 56 P3d 417 (2002)

Considera­tion of income from all sources includes potential income from prop­erty awarded to obligor spouse at time of dissolu­tion. McArdle and McArdle, 186 Or App 672, 64 P3d 1178 (2003)

Marital settle­ment agree­ment cannot authorize court to make support obliga­tion retroactive to date before filing date of mo­tion to modify obliga­tion. Hutchinson and Hutchinson, 187 Or App 733, 69 P3d 815 (2003)

Post-dissolu­tion increase in payor spouses income does not by itself ordinarily constitute substantial change in economic circumstances. Weber and Weber, 337 Or 55, 91 P3d 706 (2004)

Where initial judg­ment of dissolu­tion has pre­vi­ously been modified to reduce spousal support obliga­tion based on change in income of payor spouse, further modifica­tion to restore original spousal support obliga­tion does not require showing change in needs of payee spouse. Mitchell and Mitchell, 201 Or App 670, 120 P3d 491 (2005)

Where termina­tion date for support obliga­tion occurred on weekend, time for filing peti­tion to modify support obliga­tion was not extended to next business day. Goertel and Goertel, 209 Or App 585, 149 P3d 247 (2006)

In determining whether modifica­tion of spousal support is just and equitable, court must consider both principal and income of retire­ment benefits. Gibson and Gibson, 217 Or App 12, 174 P3d 1066 (2007)

Finality of Decrees and Liens

One who seeks modifica­tion of a prior support order must show a ma­te­ri­al change in the ability of the payor to pay or in the other partys need for support. Case v. Case, 18 Or App 637, 526 P2d 467 (1974)

A divorce decree providing for pay­ment by each party of one-half the monthly mortgage pay­ments on prop­erty held as tenants in common do not create a lien for the pay­ments until an install­ment accrued and remained unpaid. Clark v. McCoy, 273 Or 81, 539 P2d 639 (1975)

Court-approved marital settle­ment agree­ment that waives right of party to seek modifica­tion does not contravene public policy or impermissibly interfere with court jurisdic­tion. McInnis and McInnis, 199 Or App 223, 110 P3d 639 (2005)

Vaca­tion of Decrees

Provisions of a settle­ment agree­ment relating to a division of prop­erty, even though it be through the means of periodic pay­ment of money, are invulnerable to change. Garnett v. Garnett, 270 Or 102, 526 P2d 549 (1974)

Trial court lacks power to modify prop­erty division por­tions of final judg­ment dissolving marriage. Murray and Murray, 88 Or App 143, 744 P2d 1005 (1987); Dee and Dee, 96 Or App 252, 772 P2d 444 (1989)

Agree­ment of parties to modify prop­erty division does not give court authority to enter order of modifica­tion. Spady v. Graves, 307 Or 483, 770 P2d 53 (1989)

Costs and Attorney Fees

Fathers mo­tion to terminate child support because son was not child attending school was mo­tion under this sec­tion and, as result, attorney fees pro­vi­sion of this sec­tion was applicable. Yokum and Yokum, 87 Or App 336, 742 P2d 655 (1987)

It is not necessary to specify statutory basis for attorney fees when facts asserted provide basis, parties have been fairly alerted that fees would be sought and no prejudice would result. Page and Page, 103 Or App 431, 797 P2d 408 (1990); Hogue and Hogue, 118 Or App 89, 846 P2d 422 (1993)

Attorney fee award does not require that dispute be resolved through contested case hearing on merits rather than through stipulated agree­ment. Floeter and Floeter, 113 Or App 182, 830 P2d 626 (1992)

Where opposing party made litiga­tion unduly complex, reasonable and necessary attorney fees included addi­tional cost incurred to respond to extensive legal maneuvering. Weiner and Weiner, 118 Or App 466, 848 P2d 122 (1993)

Because intervening grandparents are not parties to modifica­tion pro­ceed­ing, they are not eligible for award of attorney fees. Cerda and Cerda, 136 Or App 104, 901 P2d 263 (1995), Sup Ct review denied

Award of attorney fees payable directly to organiza­tion that provided party with free legal services was assess­ment of legal fees for benefit of party. State ex rel Binschus v. Schreiber, 141 Or App 288, 917 P2d 1063 (1996)

This statute does not exclude intervening parties as parties against whom attorney fees may be awarded on ap­peal. Holm and Holm, 323 Or 581, 919 P2d 1164 (1996)

ORS 20.075 (Factors to be considered by court in awarding attorney fees) applies where court exercises discre­tion to award or deny attorney fees in modifica­tion pro­ceed­ing. Baker and Baker, 173 Or App 33, 20 P3d 263 (2001)

This sec­tion authorizes awarding attorney fees to party seeking en­force­­ment of stipulated terms of original dissolu­tion judg­ment under ORS 107.104 (Policy regarding settlement) where en­force­­ment efforts are reasonably and ma­te­ri­ally related to resolu­tion of modifica­tion under this sec­tion. Berry and Huffman, 247 Or App 651, 271 P3d 128 (2012)

Where child custody pro­ceed­ing was held to determine best interests and welfare of child, and attorney fees were awarded to claimant, attorney fees were intended to be in nature of support for welfare of child. In re Moser, 530 B.R. 872 (Bkrtcy. D. Or. 2015)

Completed Cita­tions

Hogan v. Hogan, 6 Or App 122, 486 P2d 1309 (1971)

Law Review Cita­tions

51 OLR 725, 726 (1972); 69 OLR 689 (1990)

Chapter 107

Notes of Decisions

Trial court has authority to es­tab­lish liquidated sum as amount owed by spouse under settle­ment agree­ment. Horner and Horner, 119 Or App 112, 849 P2d 560 (1993)

Atty. Gen. Opinions

Emergency or necessity as the only grounds for waiver of 90-day period, (1971) Vol 35, p 982

Law Review Cita­tions

55 OLR 267-277 (1976); 27 WLR 51 (1991)

  • The Oregon Divorce Blog, Mar 31, 2009
    “In Oregon, child support modifica­tions are governed by Oregon Revised Statute 107.135. A modifica­tion can be instituted via a filing in the circuit court in the county in which the original order was made or by requesting a review through the Depart­ment of Justice. ...”

1 Legislative Counsel Committee, CHAPTER 107—Marital Dissolution, Annulment and Separation; Mediation and Conciliation Services; Family Abuse Prevention, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors107.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 107, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano107.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.