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In re Marriage of Gilmore

Court of Appeals of Oregon

October 9, 2013

In the Matter of the Marriage of BARBARA GILMORE, Petitioner-Respondent,
v.
MELVIN AMBROSE, Respondent-Appellant. and

Argued and submitted on June 26, 2012.

Washington County Circuit Court C030893DRA Keith R. Raines, Judge.

John D. Peterson and Peterson, Peterson & Walchli, LLP filed the brief for appellant.

Michael R. Sahagian argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

ORTEGA, P. J.

Father in this dissolution case appeals a supplemental judgment modifying child support. ORS 107.135(1)(a). The trial court, in that judgment, ordered mother to pay child support in the amount of $327 per month. Father asserts that the trial court improperly failed to "impute income to mother in an amount consistent with that monthly income she voluntarily left." In particular, after losing custody of the parties' only child to father, mother retired from her job at age 56 and moved to Panama. The trial court calculated mother's child support obligation using mother's actual retirement income. In father's view, in calculating child support, the court improperly failed to utilize mother's potential income pursuant to OAR 137-050-0715 (7/1/10).[1] We agree with father and, therefore, reverse and remand.

On appeal, father requests that we exercise our discretion to review the trial court's decision de novo. See ORS 19.415(3)(b) (providing for discretionary de novo review on appeal in certain equitable actions); Turner and Muller, 237 Or.App. 192, 194-98, 238 P.3d 1003 (2010), rev den, 350 Or 231 (2011) (exercising discretion to conduct de novo review in a domestic relations case). However, in our view, this is not an exceptional case justifying exercise of de novo review. See ORAP 5.40(8)(c) ("The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases."). Accordingly, we review the trial court's decision for legal error and "state the facts consistently with those found by the trial court to the extent that there is evidence to support them." Nice v. Townley, 248 Or.App. 616, 618, 274 P.3d 227 (2012).

In 2003, mother filed a petition for dissolution of marriage, and the trial court entered a general judgment of dissolution in 2005. At that time, mother was awarded sole custody of the parties' child; father had parenting time and was ordered to pay child support. In 2008, father sought modification of the dissolution judgment, asserting that he should be awarded custody of child. The court appointed a custody evaluator and, in June 2009, entered a supplemental judgment awarding custody to father, subject to mother's parenting time.

In October 2010, father filed a motion to modify mother's parenting time. In an affidavit in support of the motion, father stated that he had received an email from mother stating that she would be moving out of town on October 14, 2010, and that child had informed him that she and mother were moving to Panama. Mother's response confirmed that she had, indeed, moved to Panama without child. In January 2011, father filed a motion to modify the dissolution judgment to require mother to pay child support. Thereafter, the court entered a supplemental judgment modifying mother's parenting time and, in May 2011, held a hearing on the issue of child support.

At the hearing, mother testified that, because of an early retirement incentive offered by her employer, she had voluntarily retired from her job at Portland Community College (PCC) in August 2010 at the age of 56. She received $2, 130 each month in public employee retirement (PERS) benefits; while teaching at PCC she had earned $6, 450 each month. At the time mother elected to retire, child was 10 years old.

According to mother, she had decided to retire and move for "the emotional and the physical and the mental health of [child] after * * * father had been awarded custody" in view of the problematic relationship between mother and father and his wife:

"[Child] was being really deeply affected by that, and I didn't feel--I didn't--I couldn't think of any other way to get her out of the middle than for * * * one of us to be farther away."

Mother further explained:

"I weighed all the pros and cons, and I realized that if I were going to retire, knowing how little money I was going to get when I retired, and if I was going to move away to keep [child] out of all of this, that I had to move someplace where the cost of living was really low."

According to mother, she chose Panama primarily

"for the cost of living because of my reduced income. I didn't feel like I could afford to live anywhere in the United States that was--I don't know what the word is--desirable, I guess, to me, based on ...

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