In the Matter of the Marriage of Patrice Diane ALTENHOFEN, Petitioner below, and Gary William VANDEN-BUSCH, Respondent below. STATE OF OREGON, Plaintiff-Respondent,
GARY WILLIAM VANDEN-BUSCH, Defendant-Appellant
Submitted, March 30, 2015
00C32122. Marion County Circuit Court. Courtland Geyer, Judge.
Peter Gartlan, Chief Defender, and Daniel C. Bennett, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Gary W. Vanden-Busch filed the supplemental brief, Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Cecil A. Reniche-Smith, Senior Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[271 Or.App. 59] SERCOMBE, P. J.
Defendant appeals the trial court's judgment finding him in contempt for failure to
pay child support and imposing 60 months of bench probation. He contends that the trial court erred in finding him in contempt and that the court " plainly erred when it imposed a determinate term of probation on the basis of proceedings that were not conducted as provided in the punitive contempt statute." We reject defendant's contention that the trial court erred in holding him in contempt, but agree that the court committed plain error in imposing a determinate term of probation. Accordingly, we reverse and remand the portion of the judgment imposing a punitive contempt sanction, and otherwise affirm.
As part of a dissolution of marriage, defendant was ordered to pay $604 per month in child support. Defendant, who has a law degree and has worked in the past as a financial planner, began having financial troubles. He was unemployed or underemployed for several years, although he attempted to find employment. Defendant fell behind on his child support and, at the time the contempt motion was filed, owed thousands of dollars in arrearages.
In 2012, the state moved for a show cause order for the imposition of remedial sanctions for contempt. It asserted that the " imposition of remedial sanctions of contempt is necessary to enforce the support and motivate future compliance with the support order[.]" The court entered an order to show cause, and defendant responded by raising the affirmative defense " of inability to comply with [the] Court's order to pay child support, for the reason that he has had insufficient funds to do so since 2008."
At the contempt hearing, the court heard evidence regarding defendant's financial difficulties and attempts to find employment. It also heard evidence that, after the contempt motion was filed, defendant began having health problems. There was also evidence that defendant had received approximately $5,000 from a settlement and $3,000 as a gift from a relative, but had not used any of that money for child [271 Or.App. 60] support. However, he had purchased several things such as running shoes, guitar strings, and an antique camera to give as a gift.
The trial court found that defendant could not pay all the back child support that he owed, but noted that its " interpretation of the failure to pay defense is not hey, I can't pay the $600 a month, therefore I have a defense. It comes down to, can you pay anything? Can you pay a dollar?" The court found that, although defendant could not " pay the $600 a month," he could have paid something and did not. Accordingly, the court determined that defendant's failure to pay was willful, " that the failure to pay defense was not complete," and, therefore, ...