Matar and Harake

446 April 18, 2013 No. 17
IN THE SUPREME COURT OF THE
STATE OF OREGON
In the Matter of the Marriage of
Lisa MATAR,
Respondent on Review,
and
STATE OF OREGON,
Petitioner below,
and
Azzam HARAKE,
Petitioner on Review.
(CC C032405DRC; CA A143331; SC S060064)
En Banc
On review from the Court of Appeals.*
Argued and submitted November 8, 2012; resubmitted
January 7, 2013.
Daniel S. Margolin, Stephens Margolin PC, Portland,
argued the cause and filed the brief for petitioner on review.
Helen C. Tompkins, Portland, argued the cause and filed
the brief for respondent on review.
WALTERS, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
*  Appeal from Washington County Circuit Court, Keith R. Raines, Judge. 246
Or App 317, 270 P3d 257 (2011).
Cite as 353 Or 446 (2013) 447
Father filed a motion to show cause why his child support obligation should
not be reduced based on an alleged reduction in his income, arguing that although
the parties had agreed not to seek modification of their child support obligations
in their stipulated judgment of dissolution, that agreement was unenforceable as
contrary to public policy. The trial court found that the parties’ nonmodification
agreement was enforceable because it neither divested the court of jurisdiction
nor violated public policy. The Court of Appeals affirmed. Held: (1) ORS 107.104
and ORS 107.135(15) are applicable to terms of marital settlement agreements
pertaining to child support; (2) child support nonmodification agreements do not
always fall within the public policy exception articulated in those statutes; and
(3) where father did not demonstrate that the stipulated child support award was
insufficient to meet his children’s needs or that enforcement of the agreement
would otherwise violate public policy, the trial court did not err in enforcing the
parties’ nonmodification agreement in accordance with ORS 107.104 and ORS
107.135(15).
The decision of the Court of Appeals and the judgment of the circuit court are
affirmed.
448 Matar and Harake
WALTERS, J.
In this domestic relations case, we decide that,
pursuant to ORS 107.1041 and ORS 107.135(15),2 a court
may enforce an agreement between parents not to seek
modification of the child support terms of a stipulated
judgment of dissolution unless to do so would violate the
law or contravene public policy. We also decide that, in this
case, father did not demonstrate that enforcement of his
nonmodification agreement with mother violated the law
or contravened public policy. Consequently, we affirm the
decision of the Court of Appeals and the judgment of the
circuit court. Matar and Harake, 246 Or App 317, 270 P3d
257 (2011).
I.  FACTS AND PROCEDURAL HISTORY
The relevant facts are undisputed and are taken
from the record. In February 2005, the parties stipulated
to a judgment dissolving their marriage. At that time, the
parties had been married for seven years and had two minor
children, then ages four and six. The judgment provided
that the parties would have joint legal custody of their
children, with mother having primary physical custody and
father having reasonable parenting time. It also required
that father pay child support of $1,750 per month, which
exceeded by $8 the presumptively correct amount indicated
by application of the Oregon Child Support Guidelines
Formula (Child Support Formula).3 The judgment provided
1
ORS 107.104(1) provides:
“It is the policy of this state:
“(a)  To encourage the settlement of suits for marital annulment,
dissolution or separation; and
“(b)  For courts to enforce the terms of settlements described in subsection
(2) of this section to the fullest extent possible, except when to do so would
violate the law or would clearly contravene public policy.”
2
ORS 107.135(15) provides, in part:
“(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.”
3
Oregon law requires that the Division of Child Support of the Department
of Justice establish a formula that courts and agencies must use in determining
Cite as 353 Or 446 (2013) 449
that neither party would seek modification of that support
obligation:
“This agreement has been made with the understanding
that child support will not be reduced and shall continue
to be paid until the children are 21 years old. The parties
stipulate that neither will seek a support modification due
to income changes of the parties, nor due to a change of
circumstances. For example, the child support amount will
remain consistent even if Father has the children 50%
of the time. This is a deviated support arrangement and
came about due to the position of this case and the original
decree’s order of judgment.”
The judgment further provided that “[n]either party shall be
awarded or pay spousal support because of the child support
agreement reached by the parties” and that “[t]he parties
have reached complete agreement on the terms of their
dissolution with regard to marital assets and debts, custody,
parenting time, and child support as set forth herein.” Both
parties were represented by counsel, and father did not
object to or appeal the entry of the stipulated judgment at
the time.
In 2009, father filed a motion to require mother to
appear and show cause why father’s child support obligation
should not be reduced based on an alleged reduction in his
monthly income from $7,300 to $6,200 and his support of two
additional children.4 Mother filed a response and pleaded an
affirmative defense of waiver, attaching and incorporating
by reference a copy of the parties’ stipulated judgment.
Mother also filed a motion to dismiss and asserted that
father’s agreement not to seek a reduction in child support
child support awards. That formula, which we will refer to as the “Child Support
Formula,” is contained in OAR 137-050-0700 through OAR 137-050-0765.
4
In his affidavit in support of his motion to show cause, father also asserted
that he had agreed to pay more child support than the presumptively correct
amount “in exchange for * * * being allowed joint custody of the children” and that
“[mother] recently modified the custody arrangement and has been awarded sole
legal custody.” In the legal memorandum that father filed thereafter, father did
not make any argument pertaining to the change in custody. Father also did not
mention that issue at the hearings that the trial court subsequently conducted.
The trial court found that a substantial change in circumstances had occurred
based only on father’s reduction in income. Father did not make any arguments
relating to the change in custody on appeal to the Court of Appeals or on review to
this court.
450 Matar and Harake
due to a change in his income barred father from seeking
modification of the stipulated child support award.
The parties agreed that the court should decide,
as a preliminary matter, the legal issue raised by mother’s
motion to dismiss, and both parties filed memoranda in
support of their positions. Father argued that (1) “child
support is a right of the child not of the parents, and there
is a strong public policy against parties contracting around
the [Child Support Formula]”; (2) the terms of marital
settlement agreements may not deprive a court of its
authority to modify child support due to a substantial change
in circumstances; and (3) because father had demonstrated
a substantial change in circumstances, enforcement of the
nonmodification provision violated public policy and was
unenforceable.
At a hearing on mother’s motion, the trial court
indicated that it intended to grant the motion but,
understanding that father was considering an appeal,
scheduled a second hearing and asked that the parties
present the evidence that they would have presented had
mother not sought dismissal of the proceeding. At the
conclusion of that second hearing, the court entered a
Supplemental Judgment of Dismissal and, as requested by
mother, made specific Findings of Fact and Conclusions of
Law. The court found that father had shown a substantial
change in circumstances through reduction in his income
but that he had entered into a nonmodification agreement
that neither divested the court of jurisdiction nor violated
public policy. Therefore, the court concluded, the parties’
nonmodification agreement was enforceable, and father’s
motion for modification should be dismissed.
As the trial court anticipated, father appealed.
In the Court of Appeals, father argued that the parties’
nonmodification agreement was necessarily contrary to
public policy, because it prevented the court from ensuring
that father’s child support obligation conformed with the
Child Support Formula and, in doing so, divested the court
of its role in protecting children. Father also asserted that
the legislature could not have intended that ORS 107.104
and ORS 107.135(15) apply to provisions of marital
Cite as 353 Or 446 (2013) 451
settlement agreements pertaining to child support and that
the trial court had erred in dismissing father’s motion for
modification.
The Court of Appeals affirmed the judgment of the
trial court. Matar, 246 Or App at 319. The court reasoned
that ORS 107.104(1) and ORS 107.135(15)(a) create a
presumption in favor of enforcing stipulated agreements
resolving suits for marital dissolution, annulment, and
separation—a presumption that applies to the child support
terms in those agreements. Id. at 320. An agreement that
purported to divest the court of authority to modify child
support would not be enforceable. However, the court held,
Oregon law does not prohibit parties from waiving the right
to seek modification of child support; such agreements are
enforceable unless they violate the law or contravene public
policy. Id. at 322. In this case, the court concluded, the parties’
agreement did not do so, and the trial court did not err. Id.
at 323. We allowed father’s petition for review to consider
the relationship between two sets of statutes: (1) those that
impose child support obligations and establish procedures
and standards for determining and modifying child support;
and (2) those that provide for judicial enforcement of the
terms of marital settlement agreements.
Before this court, father essentially renews his
previous arguments. First, he argues that the legislature did
not intend the statutes that provide for judicial enforcement
of martial settlement agreements (ORS 107.104 and
ORS 107.135(15)) to apply to terms in those agreements
pertaining to child support. Second, he argues that, even
if those statutes do apply to such terms, agreements not
to modify child support are necessarily unenforceable as
contrary to public policy, “regardless of the specifics of each
factual scenario.”5 Father suggests that such nonmodification
provisions violate public policy both because they “interfere
with the courts’ and the [s]tate’s ability to make child
support determinations in the best interest of particular
children” and because they prevent parents from seeking
to modify child support based on unanticipated changes
5
Father argues that nonmodification provisions necessarily contravene public
policy. He does not argue that nonmodification provisions necessarily violate
specific provisions of Oregon law.
452 Matar and Harake
in circumstances. For her part, mother argues that ORS
107.104 and ORS 107.135(15) are applicable to all terms in
marital settlement agreements, including terms pertaining
to child support, and that parents’ agreements to waive their
rights to seek modification of child support are enforceable
unless, in a particular case, enforcement would violate the
law or contravene public policy. Mother argues that, in this
case, enforcement of the parties’ nonmodification provision
did not contravene public policy.6
We begin our analysis by reviewing the applicable
sets of Oregon statutes—those that require parents to
support their children and those that make parents’ marital
settlement agreements enforceable.
II.  PARENTS’ CHILD SUPPORT OBLIGATIONS
Parents have a legal duty to support their children.
ORS 109.010 (“Parents are bound to maintain their children
who are poor and unable to work to maintain themselves;
and children are bound to maintain their parents in like
circumstances.”); ORS 109.015 (“It is the public policy of
this state that dependent children shall be maintained,
as much as possible, from the resources of both parents
* * *.”); Haxton and Haxton, 299 Or 616, 632, 705 P2d 721
(1985) (statutory duty of parental support exists and may
be enforced in a direct action by a child against a parent).
Parents cannot, by contract, avoid that obligation. See
Jackman v. Short, 165 Or 626, 109 P2d 860 (1941) (court
modified divorce decree to require payment of child support
even though original divorce decree was silent); Gibbons v.
Gibbons, 75 Or 500, 503, 147 P. 530 (1915) (because “[t]he
welfare of these infants is paramount to the rights of any
other person[,]” an agreement that makes no provision for
the care of the children cannot be binding when it deprives
the children of their right to maintenance). In Hess v. Hess,
115 Or 595, 239 P. 124 (1925), the court explained:
“The stipulation did not bind the mother to exclusively
support the child, but if it had, it would not have been
binding upon the child or those having the custody of it,
for the obligation of a parent to support a dependent child
is one imposed by law and arises from the relationship
6
Mother also makes various preservation arguments, which we reject.
Cite as 353 Or 446 (2013) 453
of the parties and the requirements of the child, and this
responsibility neither parent can shirk.”
Id. at 598-99.
The Oregon legislature has enacted various statutes
that, taken together, protect a child’s right to parental
support. First, the statute that governs suits for dissolution,
annulment, or separation authorizes courts to enter child
support awards in such proceedings. ORS 107.105(1)(c).
ORS 107.106(b) recognizes that those awards “are designed
for the child’s benefit and not the parents’ benefit” and
requires that judgments entered in such proceedings include
a statement so informing parents.
Second, other statutes give children and the state
independent rights to seek or enforce child support awards.
ORS 109.100 allows a child to seek an award of child support
by filing his or her own petition for support. ORS 107.108
makes a “child attending school” a party to proceedings
between parents and creates safeguards to ensure that the
child benefits from orders intended to provide support or
maintenance.7 ORS 25.080(4) authorizes the Department
of Justice to establish and enforce child support obligations
and to initiate and respond to child support modification
proceedings when support is assigned to or provided by the
state.8
7
ORS 107.108 provides, in part:
“(3) *  * [A] child attending school is a party to any legal proceeding
*
related to the support order. A child attending school may:
“* * * * *
“(b)  Request a judicial or administrative modification of the child
support amount or may receive notice of and participate in any modification
proceeding[.]
“* * * * *
“(5)(a) If a support order provides for the support or maintenance of a
child attending school and the child qualifies as a child attending school,
unless good cause is found for the distribution of the payment to be made in
some other manner, support shall be distributed to the child if services are
being provided under ORS 25.080 or shall be paid directly to the child if those
services are not being provided.”
8
ORS 25.080(4) provides, in part:
“When responsible for providing support enforcement services and there
is sufficient evidence available to support the action to be taken, [the Division
of Child Support of the Department of Justice]:
454 Matar and Harake
Third, in accordance with federal law, courts and
agencies are required to use the Child Support Formula
in determining the amount of any child support award.
ORS 25.270;9 ORS 25.280.10 The Child Support Formula
is designed to generate an amount of child support that
is presumptively correct, considering both the financial
situation of the parents and the needs of the child for whom
the support is being sought. ORS 25.275.11 A support award
determined pursuant to the Child Support Formula is
“(a)  Shall establish and enforce any child support obligation;
“* * * * *
“(e) Shall, on behalf of the state, initiate and respond to child support
modification proceedings based upon a substantial change of circumstances;
“(f) Shall, on behalf of the state, initiate and respond to child support
modification proceedings based upon a modification conducted under ORS
25.287 concerning existing child support orders[.]”
9
ORS 25.270 provides, in part:
“(1)  The federal Family Support Act of 1988 mandates that the state must
establish a formula for child support award amounts that is applicable in any
judicial or administrative proceeding for the award of child support.
“(2)  It is further mandated that the amount of child support determined
by the formula must be presumed to be the correct amount unless rebutted
by a specific finding on the record that the application of the formula would
be unjust or inappropriate in the particular case as determined under criteria
established by the state.
“* * * * *
“(5) The Division of Child Support of the Department of Justice is the
appropriate agency to establish the required formula.”
10
ORS 25.280 provides, in part:
“In any judicial or administrative proceeding for the establishment
or modification of a child support obligation *  * the amount of support
*
determined by the formula established under ORS 25.275 is presumed to be
the correct amount of the obligation. This is a rebuttable presumption and a
written finding or a specific finding on the record that the application of the
formula would be unjust or inappropriate in a particular case is sufficient to
rebut the presumption.”
11
ORS 25.275(1) provides:
“The Division of Child Support of the Department of Justice shall establish
by rule a formula for determining child support awards in any judicial or
administrative proceeding. In establishing the formula, the division shall take
into consideration the following criteria:
“(a)  All earnings, income and resources of each parent, including real and
personal property;
“(b)  The earnings history and potential of each parent;
“(c)  The reasonable necessities of each parent;
“(d)  The ability of each parent to borrow;
Cite as 353 Or 446 (2013) 455
“presumed to be *  * correct”; it may, however, be rebutted
*
if a court or agency makes specific written findings
that the application of the formula would be “unjust” or
“inappropriate” in a particular case. ORS 25.280.
Recognizing that parents’ ability to support
their children may change over time, Oregon law also
provides for the modification of child support awards. ORS
107.135(3)(a) authorizes a parent to seek modification of
child support and specifies that a “substantial change in
economic circumstances of a party” is “sufficient for the
court to reconsider its order of support[.]”12 ORS 109.100
anticipates that a child may bring an independent petition
to modify child support.13 When the state is responsible for
child support enforcement, ORS 25.287(1) authorizes it to
seek modification to ensure that the support award is in
substantial compliance with the Child Support Formula. The
state cannot seek such modification more often than every
three years “or such shorter cycle as determined by rule
of the Department of Justice[.]” ORS 25.287(1)(b). When a
party seeks modification, the court or agency must apply the
Child Support Formula and rebuttal factors in setting the
amount of support. That is true whether the modification
proceeding is initiated by a parent, a child, or the state. ORS
25.270; ORS 25.280.
“(e)  The educational, physical and emotional needs of the child for whom
the support is sought;
“(f)  The amount of assistance that would be paid to the child under the full
standard of need of the state’s IV-A plan;
“(g)  Preexisting support orders and current dependents; and
“(h)  Other reasonable criteria that the division may find to be appropriate.”
12
That statute codified this court’s holding that a party seeking modification
must demonstrate a substantial change in circumstances and that parties are
otherwise precluded from relitigating settled matters. McDonnal and McDonnal,
293 Or 772, 783, 652 P2d 1247 (1982).
13
ORS 109.100 provides, in part:
“(1)  Any minor child * * * may * * * apply * * * for an order upon the child’s
father or mother, or both, to provide for the child’s support.
“* * * * *
“(4)  The judgment of a court under subsection (1) of this section is final as
to any installment or payment of money that has accrued up to the time either
party makes a motion to set aside, alter or modify the judgment * * *.”
456 Matar and Harake
III.  ENFORCEMENT OF PARENTS’ SETTLEMENT
AGREEMENTS
The second set of statutes relevant to the issue
before us are those that permit the enforcement of parents’
settlement agreements. In 2001, the legislature enacted
ORS 107.104, which announces a policy of encouraging
settlement agreements in suits for martial annulment,
dissolution, or separation and provides for the enforcement
of settlement terms. ORS 107.104 provides:
“(1)  It is the policy of this state:
“(a) To encourage the settlement of suits for marital
annulment, dissolution or separation; and
“(b)  For courts to enforce the terms of settlements
described in subsection (2) of this section to the fullest
extent possible, except when to do so would violate the law
or would clearly contravene public policy.”
That statute further provides that a court may enforce
settlement terms using contractual remedies as well as any
other remedies available to enforce a judgment, including
but not limited to contempt.14 ORS 107.104(2).15 ORS
107.135(15)(a) is analogous: It provides for the enforcement
of settlement agreements in modification proceedings and
authorizes the use of contractual and other remedies, except
when enforcement would violate the law or contravene
public policy.16
14
In permitting parties to bring enforcement actions using contractual
remedies as well as any other remedies available to enforce a judgment, ORS
107.104 and ORS 107.135(15) overturned Webber v. Olsen, 330 Or 189, 998 P2d
666 (2000), in which the court had declined to enforce as a contract an agreement
included in a stipulated judgment of dissolution.
15
ORS 107.104(2) provides:
“In a suit for marital annulment, dissolution or separation, the court
may enforce the terms set forth in a stipulated judgment signed by the
parties, a judgment resulting from a settlement on the record or a judgment
incorporating a marital settlement agreement:
“(a)  As contract terms using contract remedies;
“(b)  By imposing any remedy available to enforce a judgment, including
but not limited to contempt; or
“(c)  By any combination of the provisions of paragraphs (a) and (b) of this
subsection.”
16
ORS 107.135(15) provides, in part:
“(a)  It is the policy of this state:
Cite as 353 Or 446 (2013) 457
Both statutes are consistent with this court’s
decision in McDonnal and McDonnal, 293 Or 772, 778, 652
P2d 1247 (1982). In that case, the court observed that, in
enacting statutes permitting dissolution of marriage without
demonstration of fault, the legislature had sought in part to
avoid unnecessary litigation and use of judicial resources and
to encourage parties to settle their disputes more amicably.
Id. at 778. Those objectives, the court explained, “are most
effectively advanced when proposed property and support
agreements are accepted by the court and incorporated into
the dissolution decree.”17 Id. at 779. Furthermore, the court
suggested, marital agreements should be enforced for many
of the same reasons that courts enforce private contracts
generally:
“It is axiomatic that public policy requires that persons
of full age and competent understanding shall have the
utmost liberty of contracting, and that their contracts, when
entered into freely and voluntarily, shall be held sacred and
shall be enforced by courts of justice; and it is only when
some other overpowering rule of public policy intervenes,
rendering such agreements unfair or illegal, that they will
not be enforced.”
Id. at 779 (internal citations and quotation marks omitted).
Where an agreement has been incorporated into a decree,
“(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.”
17
The passage of no-fault divorce laws and the increased respect for private
agreements generally was part of a growing national recognition that people should
have greater autonomy in organizing their domestic relationships. See Jana B.
Singer, The Privatization of Family Law, 1992 Wis L Rev 1443, 1509 (documenting
the shift from marriage-as-status to marriage-as-contract and the rise of private
decision making in family law, and suggesting that these shifts were connected to
changing notions of individual privacy and decisional autonomy).
458 Matar and Harake
the agreement itself is a measure of the equities between the
parties, and where parties have foregone their opportunity to
litigate and have chosen instead to enter into an agreement,
“their reliance on [that] agreement can be presumed.” Id. at
779. With those considerations in mind, “[t]he parties’ own
resolution of their dispute should be accorded great weight,”
and the court has a “responsibility to discover and give effect
to the intent of the parties as reflected in the incorporated
settlement agreement.” Id. As a result, the court concluded
that martial dissolution agreements, “[o]nce approved by
the court and incorporated into the decree[,] *  * are to be
*
enforced as a matter of public policy.” Id.
IV. ANALYSIS
Having described the applicable statutes, we return
to the parties’ arguments about the interrelationship of
those statutes and the policies that they embody. We begin
with father’s argument that the legislature did not intend
ORS 107.104 and ORS 107.135(15) to apply to the child
support terms of marital settlement agreements. To analyze
that argument, we look first to the text and context of those
statutes. State v. Gaines, 346 Or 160, 171, 206 P3d 1042
(2009) (stating analysis).
ORS 107.104 provides for judicial enforcement
of the “terms” of stipulated judgments in suits for marital
annulment, dissolution, or separation. Pursuant to ORS
107.105(1)(c), such terms may include those that provide
“[f]or the support of the children of the marriage.” Similarly,
ORS 107.135(15)(a) provides for enforcement of “terms”
of stipulated orders or judgments reached in proceedings
to set aside, alter, or modify judgments of annulment,
dissolution, or separation. Pursuant to ORS 107.135(1), such
proceedings may include the modification of any portion of
a judgment that provides for “support and welfare of the
minor children.” ORS 107.135(1)(a).18 Thus, the text and
context of both ORS 107.104 and ORS 107.135(15) reflect
18
ORS 107.135(15)(a) declares that it is the policy of the state for courts to
enforce the terms of settlements described in ORS 107.135(15)(b). ORS 107.135(15)
(b) authorizes courts to enforce the terms of settlement agreements reached in
proceedings under ORS 107.135(1). That statute provides, in part:
“(1) The court may at any time after a judgment of annulment or
dissolution of marriage or of separation is granted * * * :
Cite as 353 Or 446 (2013) 459
a legislative intent to make those provisions applicable to
terms of marital settlement agreements pertaining to child
support.
Father nevertheless argues that the public policies
reflected in the statutes that authorize courts to make and
modify child support awards demonstrate that the legislature
did not intend for ORS 107.104 or ORS 107.135(15) to apply
to terms of marital settlement agreements pertaining
to child support. We disagree. In our view, those statutes
anticipate the very issue that father raises: They provide
that courts should enforce marital settlement agreements
“to the fullest extent possible, except when to do so would
violate the law or would clearly contravene public policy.”
(Emphasis added.) The legislature clearly understood
and provided that, in the event of a conflict between the
enforcement statutes and the public policies evident in
other statutes, the enforcement statutes must yield. By
broadly instructing courts to enforce the “terms” of marital
settlement agreements subject to certain exceptions, the
legislature expressed its intent to make that instruction
applicable to all of the terms of such agreements, except
those falling within the specified exceptions.19
We proceed, therefore, to father’s argument that
agreements not to seek modification of child support always
fall within the statutory exception because the enforcement
of such agreements necessarily contravenes public policy.
Father contends that that is so because nonmodification
agreements interfere with the court’s ability to make child
“(a)  Set aside, alter or modify any portion of the judgment that provides for
the * * * support and welfare of the minor children and the children attending
school * * *.”
19
Father also proffers legislative history in support of his argument. We
do not find that material—an excerpt from the legislative discussion of House
Bill (HB) 2494 (ultimately enacted as ORS 107.104 and ORS 107.135(15)) in
which Representative Charlie Ringo stated that the bill would not affect “the
ability to modify support or to enforce payment of child support”—to be helpful.
Representative Ringo appears to have made that statement in response to a
question concerning the reach of Webber v. Olsen, 330 Or 189, 998 P2d 666 (2000),
the case that the legislature intended to overturn in enacting ORS 107.104 and
ORS 107.135(15). Rather than suggesting that HB 2494 would not reach child
support obligations, Representative Ringo seems to have been clarifying that the
contractual remedies that the legislature intended to authorize would not affect
parents’ ability to seek modification or enforcement of child support obligations
through traditional judicial remedies.
460 Matar and Harake
support determinations based on children’s best interests
and because such agreements prevent parents from
pursuing their right to seek child support modification
based on changes in circumstances. It appears that father
is making two interrelated points, although he does not
clearly distinguish between them: First, enforcement of
parents’ nonmodification agreements would deprive the
court of its statutory authority to modify child support
arrangements; and second, even if the court retains that
authority, enforcement of nonmodification agreements
would otherwise “interfere” with the application of the child
support statutes and thus with the state’s role in protecting
the interests of children.
Father’s first point is easily refuted: Parties simply
do not have the power to deprive the court of its authority
to modify child support where that authority is statutorily
granted. See McDonnal, 293 Or at 779 (property settlement
agreement may not preclude court’s statutory power to
modify spousal support; courts give effect to settlement
agreements where they do not conflict with statutory powers
of court). That does not answer the question, however,
whether parties may agree to refrain from requesting that a
court exercise its statutory authority to modify child support.
A contractual provision by which a party agrees not to seek
judicial action does not deprive a court of its authority;
rather, it waives the party’s right to seek the court’s exercise
of that authority. See McInnis and McInnis, 199 Or App 223,
235-36, 110 P3d 639 (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]”).
In making the more correctly focused point that
enforcement of a party’s waiver of the right to seek child
support modification violates public policy, father raises
an important distinction between child support terms and
other terms of marital settlement agreements. For instance,
an agreement not to seek modification of spousal support is
an agreement between spouses that affects only the spouses
themselves. An agreement not to seek modification of child
support, however, also may affect the rights of the child.
As explained, Oregon’s child support statutes are carefully
Cite as 353 Or 446 (2013) 461
crafted to ensure that child support is awarded in an amount
that will provide for a child’s needs, and those statutes
permit courts and agencies to adjust that amount when
circumstances change. The question father raises is whether
a parent’s agreement not to seek modification of child
support even where a substantial change in circumstances
has occurred necessarily contravenes the policies evident in
that scheme.
For three reasons, we conclude that it does not.
First, just as parents’ agreements cannot deprive courts of
statutory authority, a parent’s waiver of the right to seek
modification cannot affect either the child’s right to seek an
appropriate level of child support or the state’s authority
to act on behalf of a child. As noted, ORS 109.100 and
ORS 25.287(1) authorize both a child and the state to seek
modification of parents’ child support obligations, regardless
of parents’ willingness to do so.
Second, although Oregon law permits parents to
seek modification of child support when circumstances
change, it does not require them to do so. As noted, ORS
25.270 and ORS 25.280 require that when child support is set,
whether originally or on modification, the level of support be
determined in accordance with the Child Support Formula
and the rebuttal factors. However, neither party argues that
a parent who becomes aware of a change in circumstances
that would permit that parent to seek modification of child
support must do so, and we are not aware of any such
requirement. If public policy permits a parent to forego his
or her statutory right to seek modification at the time that a
change in circumstances arises, then public policy also may
permit a parent to anticipate those circumstances and, for
consideration and in the absence of fraud or duress, make
an advance decision to forego that statutory right.
Third, and most importantly, ORS 107.104 and
ORS 107.135(15) specifically provide that parents’ marital
settlement agreements will not be enforceable when
enforcement would contravene public policy. ORS 107.104
(providing that it is the policy of the state “[f]or courts
to enforce the terms of settlements *  * except when to
*
do so would violate the law or would clearly contravene
462 Matar and Harake
public policy” (emphasis added)); ORS 107.135(15)
(same). Therefore, when a party seeks enforcement of a
nonmodification agreement, those statutes permit a court
to consider whether enforcement of that agreement would
violate public policy, given the circumstances that exist at
that time. Should circumstances change, a nonmodification
agreement does not necessarily tie the hands of the parties
or the court; if a parent can establish that enforcement of
the agreement would contravene public policy, the parent
may seek, and a court may order, modification of a parent’s
child support obligation. We conclude that ORS 107.104
and ORS 107.135(15) recognize that the enforcement of
nonmodification agreements may, but does not necessarily,
contravene public policy. Courts must make that deter-
mination on a case-by-case basis.
Father’s final argument is that, in the circumstance
in which there has been a substantial change in a parent’s
economic circumstances such that enforcement of a
stipulated child support award would require the parent to
pay child support in excess of the amount required by the
Child Support Formula, enforcement of a nonmodification
agreement necessarily contravenes the public policies
evident in the state’s adoption of that formula. In so arguing,
father fails to grapple with the fact that Oregon law neither
requires a parent to seek modification of child support when
circumstances have changed nor precludes a parent from
waiving the right to do so. Moreover, father misunderstands
the purpose of the Child Support Formula and how it is
applied.
Although the Child Support Formula establishes
a presumptively correct child support award, a court is
permitted to consider rebuttal factors and award child
support that varies from the formula’s prescription to
ensure that the award is not “unfair” or “inappropriate.”
ORS 25.280. A party’s agreement to pay a specified amount
of support in consideration for property, debt, or financial
awards is one of the factors that a court may consider in
deciding whether the presumptively correct amount has
been rebutted.20 Further, the Oregon Administrative Rules
20
OAR 137-050-0760(1)(l) (listing as a rebuttal factor “[f]indings in a
judgment, order, decree or settlement agreement that the existing support award
Cite as 353 Or 446 (2013) 463
specifically authorize parental agreements that deviate from
the presumptively correct amount when the agreed amount
is within 10 percent of the presumptively correct amount.21
The fact that a nonmodification provision may prevent a party
from seeking a reduction in support to the presumptively
correct amount under the Child Support Formula does not
necessarily mean that a previously stipulated, higher child
support award is not fair or appropriate once such factors
are considered.
More importantly, such an outcome does not per se
contravene public policy. As noted, Oregon’s child support
statutes, including the Child Support Formula and rebuttal
factors, are designed to protect children and provide for
their needs. Thus, evidence that, under that formula and
considering those factors, a stipulated child support award
is insufficient to meet a child’s needs may demonstrate that
enforcement of an agreement not to seek an increase in the
stipulated award contravenes public policy. In this case,
however, father did not demonstrate that the same result
pertained, nor did he posit any other public policy that
would preclude enforcement of the stipulated child support
award.
When the parties agreed to dissolve their marriage,
they agreed that father would pay child support at a level that
exceeded the presumptively correct amount under the Child
Support Formula by $8 per month. The parties also agreed
that father would not seek to reduce his support obligation
due to a change in his income. The parties’ nonmodification
is or was made in consideration of other property, debt or financial awards, and
those findings remain relevant”).
21
OAR 137-050-0765 provides, in part:
“(2) The guideline support amount and rebuttal factors are intended to
meet the needs of most families. Likewise, the rebuttal factors *  * address
*
most situations in which the guideline amount is inappropriate. However,
there will be families for whom the support amount, even rebutted, is not
correct and who value the certainty of agreed support amounts.
“(3)  In consideration of foregoing hearing and appeal rights, the parties
may consent to a support amount that is within 10 percent of the amount
determined under the guideline[s] *  *. The order must be entered with the
*
written consent of the parties.
“(4)  An agreed support amount entered pursuant to this rule is presumed
to be just and appropriate within the meaning of ORS 25.280.”
464 Matar and Harake
provision was one term in a marital settlement agreement
that addressed a broad range of negotiated provisions. When
father later sought modification, he contended that his
circumstances had changed such that continued payment of
that previously stipulated amount of support would result
in a child support obligation that was higher, not lower, than
the presumptively correct amount under the Child Support
Formula. Thus, father understandably did not argue that
enforcement of the obligation to pay the stipulated amount
of child support failed to meet the children’s needs, nor did
he identify any other policy served by the Child Support
Formula and violated by enforcement of the stipulated
support award. We conclude that the trial court did not
err in enforcing the parties’ nonmodification agreement in
accordance with ORS 107.104 and ORS 107.135(15).
The decision of the Court of Appeals and the
judgment of the circuit court are affirmed.