Davies and Davies ( 2024 )

No. 738 October 16, 2024 527
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Marriage of
John Adam DAVIES,
Petitioner-Respondent,
and
Kristen Leigh DAVIES,
nka Kristen Danielson,
Respondent-Appellant.
Jackson County Circuit Court
21DR03118; A180286
Charles G. Kochlacs, Judge.
Argued and submitted March 12, 2024.
George W. Kelly argued the cause and filed the briefs for
appellant.
Melisa A. Button argued the cause for respondent. Also
on the brief was Hornecker Cowling, LLP.
Before Joyce, Presiding Judge, Lagesen, Chief Judge,
and Egan, Judge.*
JOYCE, P. J.
Vacated and remanded.
______________
* Egan, J., vice Jacquot, J.
528 Davies and Davies
JOYCE, P. J.
Mother appeals from a supplemental judgment
awarding child support. She raises two assignments of
error, arguing that the trial court erred in (1) denying moth-
er’s request for a rebuttal to the guidelines support award,
and (2) ordering support according to guidelines that were
amended after the court issued its ruling but before the
final judgment was entered. We conclude that, because the
trial court failed to make an adequate record for appellate
review, we cannot meaningfully review whether the court
properly exercised its discretion in denying mother’s request
for a rebuttal to the guidelines support award.1 Accordingly,
we vacate and remand.
“[W]e recount the facts ‘consistently with the trial
court’s express and implied findings, supplemented with
uncontroverted information from the record.’ ” Davis and
Lallement, 287 Or App 323, 324, 401 P3d 1230 (2017) (quot-
ing Tilson and Tilson, 260 Or App 427, 428, 317 P3d 391
(2013)). Mother and father married in 2018 and had one
child. Both parents are veterinarians. The parents divorced
in December 2021. The trial court granted custody to
mother, parenting time to father, and allowed mother to
relocate from southern Oregon to Portland. The court also
ordered that child support “shall be per Guidelines,” and set
father’s child support obligation at $2,147.41 per month. In
reaching that amount, the trial court set childcare costs at
$1,205 per month, which was the cost of full-time daycare
for the child.
Mother and the child moved to Portland in February
2022. In May 2022, father moved to modify child support
based on unanticipated substantial changes in economic
circumstances, contending that his income had decreased
after he became self-employed and that childcare was no
longer a significant expense for mother. Mother objected to
the motion and also asked that, if the court were to find
an unanticipated change in circumstances, child support be
recalculated in light of the childcare costs she was incur-
ring. Mother estimated her childcare costs at $4,019 per
1
We do not address mother’s second assignment of error because that issue
likely will not arise on remand.
Nonprecedential Memo Op: 335 Or App 527 (2024) 529
month and requested that those full costs be considered a
rebuttal to the guideline child support calculation. Mother
asked the court to find that her childcare costs are a “rea-
sonable necessity.” OAR 137-050-0760(1)(b).
At the hearing on the motion, father urged the
court to use “the Portland maximum” for mother’s child-
care expenses. See OAR 137-050-0735(3). Mother testified
that she began working as an emergency veterinarian in
Portland in May 2022, earning roughly $16,600 per month,
and offered evidence that, due to the demands of her sched-
ule, she spends $4,019 per month on childcare, including
part-time preschool and a nanny, who is able to cover moth-
er’s many overnight, weekend, and swing-shift work hours.
She asked the court to use that figure as a rebuttal to the
presumptive child support calculation.
In its letter opinion, the court did not expressly
rule on the disputed question of whether there had been
an unanticipated and substantial change of circumstances.
ORS 107.135(3)(a). However, it recalculated the child sup-
port amount. It set father’s income at the same amount that
it had been before he became self-employed. Then it deter-
mined that “[m]other’s day care is the maximum PDX rate
per OAR 137-050-0735, $1,415/mo., effective September 1,
2022.” Father objected, noting that “[t]he maximum Portland
rate for childcare pursuant to OAR 137-050-0735 is $1,060.”2
In response, mother asked the court to reconsider its ruling
and find that her childcare costs were a basis to rebut the
presumptive child support amount. The court entered the
supplemental judgment, setting childcare costs at $1,060
per month and calculating father’s obligation at $1,880.80
per month—the presumptive guideline amount.
We review the trial court’s determination of a child
support obligation under the guidelines for errors of law.
Garcia-Ascencio v. Gonzalez, 321 Or App 751, 752, 517 P3d
332 (2022). However, we review for abuse of discretion a
trial court’s determination that it would not be unjust or
2
In setting the amount at $1,415, it appears that the trial court used the
maximum amount for a child younger than three. In a second letter opinion, the
court clarified that its “intent was to allow the maximum amount of childcare by
provider location pursuant to Table 1 of [OAR] 137-050-0735, not realizing the
child had turned 3.”
530 Davies and Davies
inappropriate to apply the presumed formula when a party
offers probative evidence to rebut the guideline amount.
Klemp v. Andrach, 335 Or App 187, 191, ___ P3d ___ (2024);
see Redler and Redler, 330 Or 51, 60-61, 996 P2d 963 (2000)
(“There might be circumstances in which a party submits
such probative evidence that it would be an abuse of discre-
tion not to find that it would be unjust or inappropriate to
apply the formula.” (Emphasis in original.)).
Mother argues that the trial court abused its dis-
cretion in rejecting her request to consider her increased
childcare costs as a rebuttal to the child support guideline
amount.3 Because the trial court did not explain its rea-
son for rejecting that request, the record is insufficient for
our review, and consequently, we remand for the court to
explain its reasoning. See Olson and Olson, 218 Or App 1,
15, 178 P3d 272 (2008) (“When a trial court makes a discre-
tionary decision, the record must reflect a proper exercise of
that discretion.”); see also Jaimez v. Rosales, 323 Or App 741,
743, 525 P3d 92 (2023) (when a trial court’s reasoning is not
sufficiently ascertainable for meaningful appellate review
“we typically remand for additional findings”).
Mother presented evidence that, because of her voca-
tion as an emergency veterinarian, she requires a nanny
and part-time preschool to allow her to work weekends,
overnights, and swing shifts. And mother offered evidence
that those childcare costs are roughly four times the max-
imum amount allowed under the guidelines. ORS 25.275;
OAR 137-050-0700 to 137-050-0765 (setting out the guide-
lines for calculating child support); OAR 137-050-0735(3)
(childcare costs must be reasonable and, with exceptions not
applicable here, must not exceed the maximum amounts set
out in Table 1). Mother thus contended that that evidence
demonstrated that it would be unjust or inappropriate to set
father’s child support obligation under the formula accord-
ing to the guidelines. See ORS 25.280; OAR 137-050-0760(1)
(presumptive guideline amount “may be rebutted by a find-
ing that sets out the presumed amount, concludes that it is
unjust or inappropriate, and sets forth a different amount
and a reason it should be ordered”).
3
Mother does not challenge the court’s implicit determination that there had
been a “substantial change in economic circumstances of a party.” ORS 107.135(3)(a).
Nonprecedential Memo Op: 335 Or App 527 (2024) 531
The trial court set father’s child support obligation
at the presumptive amount under the guidelines, implic-
itly rejecting mother’s argument. However, without know-
ing why the court rejected mother’s argument, we cannot
review its decision. We can speculate as to the variety of
possible reasons underlying the court’s decision—some
based on legal conclusions, others based on factual assess-
ments—but, on this record, we cannot ascertain the court’s
actual reasoning. Although a court’s “explanation need not
be lengthy or complex, it must comport with the applica-
ble legal framework and describe the basic reasons for the
decision.” Olson, 218 Or App at 15; see also Muthukan and
Easterbrook, 306 Or App 579, 581-88, 475 P3d 459 (2020)
(reversing and remanding a marital dissolution judgment
where it was “not possible to determine” the court’s reason-
ing for the challenged property division and therefore not
possible to review whether the trial court’s decision was
within its permissible range of discretion).
The absence of any explanation or findings prevents
meaningful appellate review in this case. Accordingly, we
vacate and remand for the trial court to create a sufficient
record to allow meaningful appellate review.
Vacated and remanded.