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State v. Klum

May 31, 1973

STATE EX REL TURNBULL, RESPONDENT,
v.
KLUM, APPELLANT



Appeal from Circuit Court, Linn County. Wendell H. Tompkins, Judge.

Laurence Morley, Lebanon, for appellant. William B. Wyllie, Salem, for respondent.

Schwab, Chief Judge, and Fort and Thornton, Judges.

Schwab

This is an appeal by Donald G. Klum from an order of the circuit court entered December 1, 1972, adjudging him in contempt for failure to pay child support payments decreed by the court, and for failure to return custody of one of the children, Gary Klum, to the plaintiff. Klum was sentenced to five days in jail. Defendant also appeals from the order denying his motions to modify the child support provisions of the divorce decree and to be given credit for the money spent for Gary's support while Gary was residing with him.

Bonnie L. Turnbull, formerly known as Bonnie L. Klum, the plaintiff, was awarded a decree of divorce from Donald Klum on December 7, 1971. The decree awarded Mrs. Klum custody of Gary and Jeffery Klum, and ordered defendant to pay through the clerk of the court $225 per month per child for their support.

Defendant made support payments until July 13, 1972, after which date he made no payments. On August 30, 1972, plaintiff's attorney wrote requesting payment of the support and return of the son Gary, who had been staying with the defendant during July and August. In October 1972, plaintiff moved to hold defendant in contempt for failure to return the child and to pay support. Defendant then moved to modify the decree to reduce support payments, and to change custody of Gary. The court modified the decree by granting defendant custody of Gary and held defendant

in contempt for his previous failure to return the boy and to pay support.

Defendant first contends that the decree should be modified because his financial condition has deteriorated.

"A party who requests a modification of a provision of a divorce decree relating to support or alimony must allege and prove a change in the circumstances of one or the other of the parties sufficient to justify the modification requested * * *." Watson v. Watson, 251 Or 65, 66, 444 P2d 476 (1968).

In order to prove a change of circumstances, defendant must necessarily allege and prove what his financial position was at the time of the original decree. The original amount of child support was stipulated, so that no proofs were offered on the subject at that time. At the hearing on the request for modification, defendant testified to his present financial condition, but offered no proof relating to his circumstances at the time of the original decree. Defendant failed to prove that his previous condition was any different from that which he alleged presently existed, and the motion to modify support provisions was properly denied. See, Watson v. Watson, supra; Annotation, 89 ALR2d 7, 58-61 (1963).

Secondly, defendant contends that his failure to pay support and to return custody of Gary was due to financial inability and a misunderstanding between the parties, and not willful disobedience of the decree such as would support a contempt conviction. His proofs as to his financial condition consist solely of his testimony that his business was not meeting his hopes or ...


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