In the Matter of JAMIE LELOFF, Petitioner-Respondent, and JUSTIN FONG, Respondent-Appellant.
Argued and submitted on September 18, 2012.
Columbia County Circuit Court 103054 Jonathan R. Hill, Judge.
Robert A. Lucas argued the cause for appellant. With him on the brief was Lucas & Associates, LLC.
Gregory B. Soriano argued the cause and filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
ORTEGA, P. J.
Father appeals a judgment establishing custody, parenting time, and child support for the parties' minor child. On appeal, father asserts that the trial court erred in ordering that child support should commence from the date that the parties separated because the petition was filed pursuant to ORS 109.103 and the court, therefore, did not have authority to order retroactive child support. Mother responds that, because she had filed a motion in the action in which she cited ORS 109.155(4), the trial court could order retroactive support pursuant to that statutory provision. We agree with father that the court committed legal error and, therefore, reverse and remand with respect to the child support award.
The pertinent facts are few and undisputed. The parties are the never-married parents of the child, who was born in November 2008. Mother and father lived together at the time the child was born; they separated in approximately October 2009. Paternity of the child was established by the filing of a voluntary acknowledgement of paternity with the State Registrar of the Center for Health Statistics. After mother and father separated, in February 2010, mother filed a petition to determine custody, child support, and parenting time pursuant to ORS 109.103. She filed an amended petition in May 2010.
In August 2010, while the case was pending, mother filed a motion for temporary support, custody, and parenting time. In part, she requested an order "[r]equiring [father] to pay child support to [mother] pursuant to the Oregon Child
Support Guidelines." She further asserted that "pursuant to ORS 109.155[, ] child support [should] commence" as of the date of the child's birth. Mother's request for temporary support was not heard separately from the court's consideration of the petition to determine child support, custody, and parenting time. The court held a hearing on the merits of the petition in February 2011. Mother submitted a hearing memorandum asserting, in part, that the court should order father to pay retroactive child support pursuant to ORS 109.155.
After the hearing, the court issued a letter opinion. As pertinent here, the court noted that one of the issues in dispute was the appropriate start date for child support and what amount, if any, should be awarded as arrearages. It determined that the start date for child support should be retroactive to the date the parties separated: "Arrearages start from the time that the [c]ouple separated. The couple separated in October 2009. The child required financial support from that time forward. The [a]rrearages start in November of 2009." Father contended that the judgment should not include any arrearage and eventually the court held an additional hearing on that issue. However, it did not change its decision and, ultimately, entered a general judgment providing for child support retroactive to the date of the parties' separation:
"The Court finds that child support commences from the time that the parties separated in October 2009. The Court finds that the arrearages commence on November 1, 2009. There are 19 months from November 2009 through May 31, 2011. 19 months times $787 per month child support is $14, 953. The Court finds that Respondent has paid $6, 444 in child support during the pendency through May 24, 2011. The Court finds that the child support arrears owed to Petitioner * * * are in the amount of $8, 509. The Court finds the arrears are to be paid at a rate of 20% of the $787 monthly support order * * * in addition to the monthly child support amount[.]"
It is that provision of the judgment that is at issue on appeal.
As noted, father contends that the "trial court erred in ordering that child support should commence from the date the parties separated." In particular, he asserts that the court could not order child support retroactive to the date of separation under the statutes applicable to this case and that, although mother argued to the trial court that ORS 109.155(4) could be used to award retroactive child support, "this was not a filiation proceeding brought under ORS 109.124 and following" and "ORS 109.155 does not ...