In the Matter of Marriage of Petersen and Petersen , 132 Or. App. 190 ( 1994 )

LANDAU, J.,

dissenting.

I would have thought this an easy decision. We rejected the arguments on which the majority rests its opinion only months ago in Rossi and Rossi, 128 Or App 536, 876 P2d 820 (1994). Now, the ink barely dry on the Advance Sheets, the majority overrules that decision, and effectively guts the child support guidelines in the process.

Before I am accused of overstatement, let me hasten to explain. As I read the majority’s opinion, the amount of support dictated by the child support guidelines formula is not required if the trial court utters the following phrase:

“I have considered the factors enumerated in ORS 25.280 and determine that the amount required by the formula is unjust or inappropriate.”

The trial court then can, in the exercise of its discretion, simply award what it pleases. In holding that courts need not justify any departures from the formula by specific reference to the criteria enumerated in the statute and the guidelines, the majority ignores the language of the federal law that requires the adoption of mandatory guidelines, the state law that resulted, and the regulations that implement the state law.

I begin with the language of the federal Family Support Act of 1988, which requires the adoption of mandatory, uniform child support guidelines in the first place. It says that there must be a rebuttable presumption that the amount of support dictated by guidelines adopted by the state is correct. Then, if a court wishes to deviate from that amount,

“[a] written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.” 42 USC § 667(b)(2). (Emphasis supplied.)

The legislative history confirms what that language suggests:

“Guidelines developed by States must be applied by judges and other officials in determining the amount of any child support award unless the judge or official, pursuant to the criteria established by the State, makes a finding that there is good cause for not applying the guidelines.” 5 US Code Cong & Adm News 2794 (1988)(S Rep No 100-377, sec 103, 100th Cong 2d Sess 17 (1988)). (Emphasis supplied.)

The majority ignores both the text and the history of the federal law, insisting that the use of the word “guidelines” in that law means that Congress requires states to adopt a general ‘ ‘policy’ ’ or ‘ ‘outline’ ’ that is merely precatory in nature and imposes no particular limitations on the trial courts’ determinations of what is just and equitable. That position cannot be squared with the language of the law, which provides that the states are required to enact laws that must provide a quantitative formula for setting child support awards that must be presumed correct unless the trial court specifically finds that the award is unjust or unreasonable pursuant to the criteria established by the state.¹

ORS 25.280, enacted in direct response to the federal law, provides that there is a rebuttable presumption that the award dictated by the guidelines is correct. It then provides:

“[A] written finding or a specific finding on the record that the application of the formula would be unjust or inappropriate shall be sufficient to rebut the presumption. The following criteria shall be considered in making the finding * * *.”

The statute then lists ten criteria. ORS 25.280(1)-(10).

I assume, for the sake of argument, that, in saying that the enumerated criteria “shall be considered,” the provision does not clearly require the court to base a departure from the presumption only on the criteria enumerated. Nevertheless, prior decisions of the Supreme Court and this court remove any doubt that that is precisely what the law requires. In Perlenfein and Perlenfein, 316 Or 16, 24, 848 P2d 604 (1993), the Supreme Court said that, under ORS 25.280, “the presumption may be rebutted by a finding that the application of the formula is unjust or inappropriate by reason of various listed criteria.” (Emphasis supplied.) More recently, in Rossi and Rossi, supra, we held that the trial court may justify a departure from the amount dictated by the guidelines formula only by expressly finding that that amount is unjust or inappropriate “based on one or more of the ten statutory criteria.” 128 Or App at 543.

The majority does not take issue with my reading of Perlenfein. It simply asserts that we are not bound by the language of that opinion on which I rely, because the court included that language in deciding an issue that is not the same as the dispute in this case. I am unpersuaded.

In Perlenfein, the husband argued that the trial court erred in including certain assets as his income for the purpose of determining the amount of child support under the guidelines. 316 Or at 22. In the alternative, he argued that, even if the trial court correctly included those assets as income, the trial court should have concluded that it was unjust or inequitable to calculate a child support award on the basis of those assets. The husband’s arguments necessitated the Supreme Court’s description of how the guidelines work, that is to say, how the guidelines require the trial court first to calculate an award based on the formula and then to determine whether that award is unjust or inappropriate, “by reason of the various listed criteria.”

The court then held that the husband should have an opportunity to present his case for rebutting the presumption that the award dictated by the formula was just and reasonable. 316 Or at 24-26. In fact, the court specifically identified two of the statutory rebuttal criteria that could be the basis for departing from the guidelines amount. 316 Or at 25. That was the court’s holding, not a gratuitous juridical detour. In that light, I submit that the Supreme Court’s construction of the guidelines in Perlenfein, which the majority apparently acknowledges is contrary to its own, cannot be ignored.

As for Rossi and Rossi, the majority again concedes that the decision contains language that is contrary to its new view of the law. It simply asserts that that language is “mistaken” dictum and should be overruled. That language, however, merely parrots what the Supreme Court said in Perlenfein. Moreover, the majority fails to address the fact that, in reaching the holding in Rossi and Rossi, we rejected the very arguments the majority now asserts as the basis for overruling that dictum. See 128 Or App at 544-48. In short, the majority does not merely rewrite the statutes; it rewrites our case law that has previously — indeed, recently — interpreted those statutes, as well. We are constrained to be especially cautious about overruling our own prior construction of a statute, because “[statutory interpretation particularly implicates the rule of stare decisis.” Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 600 (1992). The majority, however, apparently is untroubled by any such notions of caution and precedent.

The former version of the statute further indicates the legislature’s intention to do exactly what the federal law requires in permitting courts to rebut the presumption only by reference to the criteria specifically enumerated in the law. Enacted before the application of child support guidelines became federally mandated, the state law provided that the trial courts must determine the amount of child support in proportion to the parents’ ability to pay. It then provided that,

“[i]n making this determination, the court shall consider, but not limit itself to, the following factors * * ORS 107.105(1)(c) (since amended by Or Laws 1989, ch 811, § 6; Or Laws 1993, ch 315, § 1; Or Laws 1993, ch 716, § 3). (Emphasis supplied.)

The emphasized language was deleted in 1989, when the legislature enacted ORS 25.280. Accordingly, it seems clear that when the legislature wants to say that the courts are not limited to a particular list of criteria in setting child support, it says so in words plain enough for all to understand. No such language can be found in ORS 25.280; the legislature, in fact, took it out. The majority now stubbornly reads it back into the statute by judicial fiat. We lack the authority to rewrite statutes in that manner. ORS 174.010.

There is, in fact, an obvious internal inconsistency in the majority’s argument on this point. The majority emphasizes that we cannot read into the statute words that have not been enacted by the legislature. Yet that is precisely what the majority proceeds to do: Where no such words may be found in the law, it holds that the statute now allows courts to predicate their child support awards on factors that are not enumerated in the statute. The majority’s only defense is that the statute does not say that courts cannot do that. In the area of domestic relations, however, the courts only have the authority that the legislature affirmatively gives them. Burnett et al. v. Hatch, 200 Or 291, 298, 266 P2d 414 (1954); Edwards and Edwards, 124 Or App 646, 649, 863 P2d 513 (1993), mod on other grounds 127 Or App 489, 873 P2d 401 (1994).

Any remaining doubt that the legislature intended courts to be tethered by the enumerated criteria is dispelled by reference to the legislative history of ORS 25.280. Colleen Sealock, the Administrator of the Support Enforcement Division, which drafted and proposed the legislation that later was codified as ORS 25.280, explained that the bill requires courts to use the formula to be developed by the Division. She then explained that the correctness of the formula amount may be rebutted in the following manner, in accordance with the requirements of federal law:

“This bill also includes specific criteria to, to be used to rehut or refute that child support amount. So a judge or a hearings officer can say for a particular reason, and they are identified in the bill itself, I believe it is section 3 of your bill, exactly why the judge or the hearings officer chooses not to follow the guideline amount and instead comes up with a different amount.

U* * * * *

“Section 3 * * * is the criteria that allows judges or referees using the guideline. So, we use the guideline; we make that recommendation; the judge looks at it and says, I think the guideline is too high or too low, this is the criteria he must, he or she must reference about why they choose not to follow the guideline recommendation.” Tape recording, House Committee on the Judiciary, Subcommittee on Family Justice, February 17, 1989, Tape 31, Side B, Testimony of Colleen Sealock. (Emphasis supplied.)

Similarly, Maureen McKnight, attorney for Oregon Legal Services, testified in support of amendments to the list of rebuttal factors:

“[w]hat we have done in the bill so far, is tell SED to create support guidelines and tell them what factors to consider, and now in section 4, we’re following federal law and creating a rebuttable presumption for the amount of support determined under that formula. But again, according to federal law, we’re creating criteria for a trier to use if the trier wants to deviate from the amount of support determined under the formula.” Tape recording, Senate Committee on the Judiciary, May 30, 1989, Tape 210, Side A, Testimony of Maureen McKnight. (Emphasis supplied.)

In fact, the amendment she proposed defined one of the criteria, for the purpose of making clear that certain facts could not be considered in rebutting the guidelines amount:

“I’ve added a sentence that says, or excuse me, language that limits the criteria of net income of a parent to be the ‘net income remaining after withholdings required by law or as a condition of employment’ to make clear that voluntary deductions or deferred compensation aren’t going to be permissible deductions in terms of adjustment to the support figure or reason to deviate from it.” Tape recording, Senate Committee on the Judiciary, May 30, 1989, Tape 210, Side A, Testimony of Maureen McKnight. (Emphasis supplied.)

The legislature adopted McKnight’s proposed limitations. In so doing, it limited the scope of one of the enumerated criteria. I find that action especially damning to the majority’s argument. For, if the majority is correct that trial courts are at liberty to depart from the guidelines for reasons not enumerated in the statutes, then a court could depart from the statute on the basis of a criterion that the legislature expressly rejected. That makes no sense.

Nothing in the legislative history suggests that courts are free to ignore the rebuttal criteria enumerated in the law, or to make up their own. To the contrary, as the foregoing testimony makes quite clear, the court must base any departure from the guidelines formula on the criteria listed in the law.²

The majority insists that it does not have to consider legislative history, because the language of the statute is so clear. I have a difficult time agreeing with that, in the light of the fact that, only a few months ago, this court said that the language meant the opposite of what the majority now asserts is so unambiguous.

The majority argues that, in any event, the legislative history is unpersuasive, because it only says that the trial court must “reference” the criteria enumerated in the statute, not that the trial court lacks authority to make up its own criteria. Suffice it to say that I cannot read the legislative history and reach the same conclusion. It clearly states that the law includes “specific criteria to be used to rebut or refute” the presumed correct award, that the trial courts “must reference” those specific criteria in choosing not to follow the award dictated by the guidelines formula, and that it expressly made choices about what criteria to include in the statutory list, to make clear that nonenumerated criteria “aren’t going to be permissible” bases for departing from the guidelines amount.

Finally, the text of the child support guidelines in effect at the time of the trial court’s decision plainly indicates that the courts are required to base their rebuttal of the presumption on the criteria enumerated in the law. The guidelines provide:

“The presumption may be rebutted by a finding that the amount is unjust or inappropriate based upon the criteria set forth in paragraphs (A) through (J) of this subsection. Effective May 1,1992, findings that rebut the presumption * * * shall state that amount and include the reason why the order varies from that amount[.]” OAR 137-50-330. (Emphasis supplied.)

Then, in paragraphs (A) through (J), the guidelines repeat the criteria enumerated in the statute. The comments to the guidelines even more plainly explain that the guidelines are intended to implement “limitations by the authorizing legislation as to the factors which may be considered in rebutting the presumptive amount.” Oregon Child Support Guidelines Commentary 1 (1991). Once again, the majority simply ignores the language of the regulations that is flatly at odds with its holding.³

Thus, the text of the federal Family Support Act of 1988, its legislative history, the text of ORS 25.280, prior case law construing it, its context, its legislative history and its implementing regulations all squarely controvert the majority’s characterization of the law.

The majority, nevertheless, concludes that the courts are not constrained to justify, by reference to the criteria enumerated in the statute and the guidelines, any departure from the amount of support that is presumed to be correct. According to the majority, all that is required by ORS 25.280 is that the trial court say that it “considered” the enumerated factors. Then, the court is free to justify its decision to depart from the guidelines on any basis it chooses.

I encourage the members of this court and the members of the domestic relations bar to think about that proposition carefully. If the majority is correct, then the guidelines and the process that they prescribe are completely illusory. All a court need do is utter certain magic words — “I have considered the factors in ORS 25.280” — and it is free to set child support as it pleases.

That is, in fact, precisely what the trial court did in this case. It said:

“[PJursuant to ORS 25.280, the court determines that amount [required by the guidelines] to be unjust or inappropriate, and the presumption of its correctness is rebutted because the parties entered into a Property Settlement Agreement * *

According to the majority, “[i]t is apparent from the trial court’s statement that it considered the provisions of ORS 25.280” and “made a written finding that the presumed amount was ‘unjust or inappropriate[.]’ ” 132 Or App at 194. That, the majority holds, is all the law requires. Consequently, the majority concludes, the trial court is free to base its decision on other criteria not enumerated in the statute or the guidelines; in this case, on the agreement of the parties.

The majority justifies its holding by referring to language in ORS 107.105(l)(c), which authorizes the courts to award child support that is ‘ ‘just and proper. ’ ’ The majority reasons that to give effect to that provision, the trial courts must have discretion to set child support in an amount that they deem appropriate under the circumstances, whether or not that amount can be justified by reference to the criteria enumerated in ORS 25.280 and the guidelines. Any other construction, the majority concludes, would give no effect to the “just and proper” language of ORS 107.105(1)(c).

The logic of the majority’s argument is thin to the point of disappearance. Requiring courts to justify their departures from the guidelines by reference to the criteria enumerated in ORS 25.280 and the guidelines themselves does no violence to ORS 107.105(1)(c). As we said in rejecting the same argument in Rossi and Rossi, supra, ORS 25.280 and the guidelines preserve the courts’ authority to make adjustments to an award otherwise presumed correct. ORS 25.280 and the guidelines, in fact, define what “just and proper” means, by requiring courts to use the guidelines in determining what is a “just and proper” award.

There is no question that, by enumerating a limited number of criteria, ORS 25.280 and the guidelines impose a limitation on the permissible bases for departing from the presumed correct award. That, however, is precisely the purpose of the guidelines. They establish limitations on the discretion of the courts in setting child support awards.

I would hold that the trial court erred in departing from the amount of child support dictated by the guidelines formula without basing its departure “upon the criteria set forth” in the guidelines. OAR 137-50-330(2). It merely stated the conclusion that the amount is unjust and inappropriate, and accepted the parties’ agreement to pay a different amount. The agreement of the parties, however, is not among the factors enumerated in OAR 137-50-330(2). Accordingly, I would reverse the trial court.⁴

I dissent.

Warren, De Muniz and Haselton, JJ., join in this dissenting opinion.

1 I do not understand Congress to have preempted the authority of the state to decide what those specific criteria will be. Indeed, different states have, in conformance with the federal law, enacted different lists of factors that permit the trial court to depart from the award dictated by the formula. The child support statutes of Colorado, for example, expressly allow a court to base a child support award on the stipulation of the parties, provided certain prerequisites guaranteeing the adequacy of the award are met. Colo Rev Stat § 14-10-115(3)(b) (Supp 1994). For whatever reasons, the Oregon Legislature has not chosen to include such a provision in the child support statutes of this state.

My point is that Congress clearly requires that any departure from the award that is presumed correct must be based on whatever criteria are adopted by the state legislatures. Courts and support enforcement officials are not free to make them up as they see fit.

2 In reviewing that and similar legislative history, the Supreme Court in Perlenfein and Perlenfein, supra, observed:

“We note that the legislative history of ORS 25.270 et seq (1989 House Bill 2455) places considerable emphasis on the two-step nature of the process of determining a child support obligation: (1) the determination of a presumptively correct child support amount by application of the formula established in OAR 137-50-330(1) and (2) the rebuttal, if any, of that presumed amount under the criteria established in OAR 137-50-330(2)(A) through (J).” 316 Or at 25 n 8. (Emphasis supplied.)

3 The current guidelines are even more explicit, requiring that, when the presumption is rebutted,

“[a] new support amount may be calculated by determining an appropriate dollar value to be attributed to the specific criteria upon which the finding was based * * OAR 137-50-330(2)(b). (Emphasis supplied.)

The unofficial comments to those guidelines similarly explain that “[t]he guidelines set forth criteria upon which such a finding musí be based.” Unofficial Commentary: Changes to the Child Support Guidelines Effective October 15, 1994 at 1 (1994). (Emphasis supplied.)

4 I do not read the law to prohibit courts from accepting settlement agreements as to amounts of child support. I do insist, however, that the courts cannot blindly accept such agreements without expressly evaluating them under the criteria enumerated in the statute and the guidelines. Any other reading of the law makes the determination of child support an exercise of unfettered discretion, which is exactly what the guidelines were enacted to prevent.