Ahmad and Khakwani ( 2023 )

112
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted May 22, vacated and remanded July 12, 2023
In the Matter of the Marriage of
Qudsia N. AHMAD,
Petitioner-Respondent,
and
Nauman M. KHAKWANI,
Respondent-Appellant,
and
Abdullah KHAKWANI,
Third-Party Respondent below.
Multnomah County Circuit Court
15DR13949; A176223
Susan M. Svetkey, Judge.
Collin Clark McKean argued the cause for appellant.
Also on the brief was McKean Smith.
Robert T. Scherzer waived appearance for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
JOYCE, J.
Vacated and remanded.
Nonprecedential Memo Op: 327 Or App 112 (2023) 113
JOYCE, J.
Father appeals from a supplemental judgment
that denied father’s motion to terminate child support and
ordered father to post a travel bond in the event that his
minor child was to visit him in Pakistan, where father now
resides. The court also denied father’s motion for an order of
default against one of his children. Father raises five assign-
ments of error. Mother has not appeared on appeal. We
affirm the portion of the judgment imposing a travel bond
but we vacate the portions of the judgment imposing child
support and denying father’s motion for an order of default,
and we remand for further proceedings.
Denial of Motion to Terminate Child Support/
Enforce Settlement Agreement: In three assignments of error,
father challenges the trial court’s denial of father’s motion
to enforce the parties’ supplemental stipulated dissolution
judgment. As relevant here, mother and father agreed that
mother would have custody of the parties’ two minor chil-
dren, AB and ABD. They also agreed that father would pay
mother child support (both for the minor children and for M,
who was a child attending school as defined in ORS 107.108)
but that as “conditions of child support,” mother agreed
that AB would take three community college level calculus
classes before his graduation date, which was no later than
December 31, 2019. The parties agreed that mother would
enroll ABD in a secular public school. If mother failed to
satisfy those conditions, the parties agreed that “the result
will be the immediate termination of child support.”
AB did not complete the agreed upon calculus
classes, and mother enrolled ABD in a nonsecular school.
Father moved for an order to show cause why, under the
terms of the supplemental stipulated judgment, child sup-
port should not be terminated. The trial court entered a
supplemental judgment that, among other things, denied
father’s request to terminate child support and ordered
father to pay arrearages. Father argues that the trial court
was not permitted to order anything other than what the
supplemental stipulated judgment provided for, i.e., that if
mother did not ensure that the children complied with the
specified educational requirements—and there is no dispute
114 Ahmad and Khakwani
that they did not—child support must be terminated. In so
arguing, he relies on ORS 107.104, which provides that it is
the policy of the state to encourage settlement of dissolution
cases and for courts to enforce such settlements to the “full-
est extent possible, except when to do so would violate the
law or would clearly contravene public policy.” Father argues
that the agreement to terminate child support does not vio-
late the law or public policy.
Below, although father made passing reference to
that statute, mother did not argue that termination of child
support would violate public policy, and the trial court did
not clearly address that question. In its findings of fact, the
court observed that it retained jurisdiction to determine
what is in the children’s best interests. It may be that the
court was using that phrase as a proxy for public policy,
i.e., that it is in the children’s best interests to receive child
support and it would thus violate public policy to deprive
them of that. But that is only one of several ways to read the
court’s reasoning, and we cannot assume that it engaged in
the proper analysis under ORS 107.104. Because it is the
dispositive question, we vacate the trial court’s judgment
and remand for the trial court to determine whether, under
ORS 107.104’s framework, the agreement to terminate child
support upon mother’s failure to comply with the educa-
tional provisions is consistent with public policy.
Imposition of Travel Bond: Mother, in response to
father’s motion for an order to show cause, asked that father
post a bond if ABD visited father in Pakistan, where father
had moved. The court imposed a $15,000 travel bond based
on its conclusion that mother had reasonable concerns and
fears (given father’s recent comments) that if ABD trav-
eled to Pakistan, father might not return ABD to mother’s
custody. Although the supplemental stipulated settlement
agreement addressed international travel, it did not impose
a travel bond. Father argues that that silence means that
the court did not have authority to impose that requirement.
We disagree. When a settlement agreement con-
tains a nonmodification clause, courts are obligated to
honor those provisions. See Matar and Harake, 353 Or 446,
460, 300 P3d 144 (2013); see also McInnis and McInnis, 199
Nonprecedential Memo Op: 327 Or App 112 (2023) 115
Or App 223, 235, 110 P3d 639, rev dismissed, 338 Or 681(2005) (parties’ waiver of their right to seek modification
of spousal support “has nothing to do with the authority of
the court; rather, it involves only whether the parties may
invoke [the court’s authority]”). But the parties here did not
include a nonmodification clause in their stipulated set-
tlement with respect to requiring an international travel
bond.1 Accordingly, mother remained free to move to modify
the supplemental stipulated judgment, and the trial court
could impose a travel bond. We also reject father’s argument
that the trial court impermissibly imposed the bond based
on father’s religious belief. In imposing the bond, the trial
court expressly credited mother’s testimony, which included
testimony that father had sent abusive texts to mother and
had stated that the children “belong to him, that the only
way that they can do well and can thrive is if they are with
him.”
Denial of Motion for Order of Default: Father also
assigns error to the trial court’s denial of his motion for
default, taken against AB. During the initial dissolution
proceedings, the trial court appointed George Soriano to
represent the minor children, ABD and AB. Soriano never
filed a motion to withdraw as attorney.
At the time of the current proceeding, AB was no
longer a minor. Soriano appeared at the hearing on father’s
1
The parties entered two stipulated judgments. In a section labeled “custody/
parenting time,” the first stipulated judgment gave father full custody with the
right to travel internationally as he saw fit and mother was not obligated to pay
child support. That stipulation provided that mother waived her right to “mod-
ify the custody provisions,” and father agreed to waive his rights to modify the
“child support provisions.” Despite those waivers, mother moved for an order to
show cause to change custody to her, which the parties then agreed to in the
supplemental stipulated judgment. That stipulated supplemental judgment con-
tains no waiver of modification provisions. It does provide that to the extent that
other terms of the first stipulated judgment “remain unaddressed” by the stipu-
lated supplemental judgment, “all such terms remain in full force and effect.” To
the extent that father is arguing that the first stipulated judgment, which gave
him full custody and the right to travel internationally without a bond, prevents
mother from seeking a travel bond now, we disagree. The nonmodification provi-
sion in the first stipulated agreement was tied to the substance of the agreement,
i.e., that mother could not challenge custody, which father had, and father could
not challenge child-support, which was related to mother not having the chil-
dren. The supplemental stipulated judgment fundamentally changed that and
put international travel in a stand-alone provision.
116 Ahmad and Khakwani
motion to terminate support. In his hearing memorandum,
Soriano only referenced ABD’s position and his recommen-
dation vis-à-vis ABD, but Soriano never withdrew as AB’s
attorney. See ORS 9.380 (the attorney-client relationship
can be terminated “upon the consent of the attorney filed
with the clerk or entered in the appropriate record of the
court” or “upon the order of the court, based on the appli-
cation of the client or the attorney, for good and sufficient
cause.”). In its supplemental judgment, the trial court noted
that Soriano appeared on behalf of both ABD and AB. It
then denied father’s motion for default against AB, which
father filed on the basis that AB had not appeared in the
case.
From this record, we cannot discern whether the
court found, as a factual matter, that Soriano appeared on
behalf of both AB and ABD. See State v. Jackson, 296 Or 430,
440, 677 P2d 21 (1984) (declining to attribute an implicit
factual finding to a trial court when that court “never made
any conclusions” regarding that factual issue) (emphasis in
original); State v. Lunacolorado, 238 Or App 691, 696, 243
P3d 125 (2010) (explaining that appellate courts may pre-
sume that a trial court made implicit factual findings when
“there is conflicting evidence about a fact that is a neces-
sary predicate to the court’s conclusion”). Although the court
noted that Soriano appeared on behalf of both AB and ABD,
it is not clear whether it did so as a factual finding or merely
as a clerical notation based on Soriano’s history of having
appeared on behalf of both AB and ABD. Because we cannot
discern whether the court made a factual finding, we vacate
and remand for the trial court to determine on whose behalf
Soriano appeared.2
Vacated and remanded.
2
We note that even if the court on remand finds that Soriano did not appear
for AB, it does not automatically follow that father would be entitled to an order
of default against AB. A trial court has discretion, short of defaulting a party, to
address the nonappearance of a party.