Hercenberger v. Hercenberger ( 2024 )

328 November 20, 2024 No. 834
This is a nonprecedential memorandum opinion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
Senadija HERCENBERGER
and State of Oregon,
Petitioners-Respondents,
v.
Robert HERCENBERGER,
Respondent-Appellant.
Washington County Circuit Court
C151162DRC; A181454
Manuel Perez, Judge.
Argued and submitted October 10, 2024.
Robert Hercenberger argued the cause and filed the
briefs pro se.
Denise G. Fjordbeck, Assistant Attorney General, argued
the cause for respondent State of Oregon. Also on the brief
were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
No appearance for respondent Senadija Hercenberger.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
EGAN, J.
Affirmed.
Nonprecedential Memo Op: 336 Or App 328 (2024) 329
EGAN, J.
In this appeal, father challenges an order deny-
ing his challenge to garnishment from the trial court. The
Oregon Department of Justice’s (DOJ) Division of Child
Support sought the garnishment under ORS 18.605 for
payment of child support for arrearages to mother in accor-
dance with ORS 25.167 and ORS 25.080. On appeal, father
asserts that the trial court erred in denying his challenge
to the garnishment on grounds that the DOJ does not have
authority to collect on behalf of mother, that the trial court
erred because the action was not initiated by mother, that
the underlying judgment is void due to fraud on the court,
and that the writ of garnishment is not valid or enforceable.
We affirm the judgment of the trial court.
The operative facts are procedural. In December
2015, the trial court ordered father to pay child support
of $356 per month for the parties’ joint child. Father filed
a notice of appeal from that general judgment. This court
affirmed the judgment without opinion in Hercenberger and
Hercenberger, 283 Or App 917, 391 P3d 136, rev den, 362 Or
94 (2017), rev dismissed, 365 Or 534 (2019). The appellate
judgment was entered on February 16, 2018. Father made
subsequent motions on various grounds, including fraud, to
vacate that judgment. All of those motions failed. The trial
court record does not reflect that father ever moved to mod-
ify or set aside the child support award.
The DOJ sought to garnish money that was allo-
cated to father in a settlement from Allstate Insurance
Company. On March 20, 2023, father filed a challenge to
garnishment under ORS 18.700, once again alleging that
the general judgment was obtained through “fraud upon the
court.” In response, the DOJ alleged that father owed past-
due child support of $12,710. The DOJ further alleged that
no funds had been received under the garnishment, because
the underlying insurance claim had not yet been settled.
The DOJ requested that, if the garnishment challenge were
to be denied, the court enter an order directing the gar-
nishee, Allstate, to pay an amount not to exceed $12,710,
subject to any offsets which father was entitled. The writ of
330 Hercenberger v. Hercenberger
garnishment so directing the garnishee was attached to the
response.
Father filed a “Motion to Dismiss,” alleging that
mother was not the petitioner or plaintiff, and that the trial
court therefore lacked jurisdiction. A hearing on the chal-
lenge to the garnishment was held on April 21, 2023. The
hearing was transcribed. Father argued that the case could
not proceed in mother’s absence, and that the DOJ could
not pursue the claim for child support. Father also claimed
that he did not owe any back support because he and mother
evenly split parenting time. The DOJ responded that there
was a child support order in the judgment, which was never
modified to reflect any change in custody or parenting plan.
The DOJ then argued that none of the statutory bases for
challenging a garnishment were established and that the
garnishment proceeding was not the proper place or mecha-
nism to challenge the validity of the underlying debt.
The trial court found that father was ordered to
pay $356 per month in support in December 2015 and that
amount was never changed. The trial judge entered an order
denying the challenge to garnishment on April 21, 2023.
Father filed a timely notice of appeal.
As to father’s argument that the trial court lacks
jurisdiction because mother did not initiate the garnish-
ment, we note that the DOJ is empowered to assist in the
collection of child support. ORS 25.080(1). The general judg-
ment provided that the child support would be paid through
the Division of Child Support of the DOJ and the DOJ would
provide enforcement services. ORS 25.080(1)(a) allows the
DOJ to provide child support collection and enforcement
services. ORS 18.605(1)(c) authorizes the use of garnishment
proceedings to collect support arrearages as shown in DOJ
records. Under OAR 137-055-1040(1), in any proceeding to
establish, modify, or enforce paternity or support, the DOJ
only represents the interest of the state. Mother was served
with the challenge to the garnishment. She could have par-
ticipated had she wished to do so. Nothing in the statutes or
rules prevented her from doing so. But her failure to partic-
ipate did not deprive the court of jurisdiction.
Nonprecedential Memo Op: 336 Or App 328 (2024) 331
Father also argues that the original judgment is void
due to a fraud on the court. Father’s argument shifts from a
claim that the trial judge committed a fraud by allowing the
judgment to a claim that the Assistant Attorney General
committed a fraud on this court by making misrepresenta-
tions of the law. He argues that his previous motions about
the original judgment of dissolution and the distribution of
property remain genuine issues of material fact in this case
of nonpayment of child support. These arguments mix up
the elements of ORCP 47 with the elements of ORCP 71B.
Despite father’s arguments to the contrary, the DOJ points
out that although father has consistently argued that there
has been a fraud perpetrated on the court, nevertheless
he has never moved for modification of the judgment. The
record supports the DOJ’s position. In short, father cannot
challenge the substance of the general judgment through
this garnishment proceeding. The order of garnishment is
valid.
Affirmed.