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In re Marriage of Bush

Court of Appeals of Oregon

May 22, 2019

In the Matter of the Marriage of Natalee Kathryn BUSH, Petitioner-Appellant, and Jason Everett BUSH, Respondent-Respondent.

          Argued and submitted March 14, 2019

          Lane County Circuit Court 15DR07239; Charles D. Carlson, Judge.

          Edmund J. Spinney argued the cause and fied the briefs for appellant.

          George W. Kelly argued the cause and fied the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Wife appeals a supplemental judgment modifying a general judgment of dissolution. As part of her frst assignment of error, wife challenges the trial court's calculation of child support and requests de novo review of the court's finding regarding husband's employment income. Wife argues that husband's uniform support declaration, on which the court relied to calculate child support, contains a mistake regarding husband's employment income that is apparent in light of husband's uncontroverted testimony at trial and the paystubs that husband attached to his declaration. Held: The Court of Appeals determined that it is appropriate to exercise its discretion to conduct de novo review in this circumstance, but it limited its de novo review to the issue of husband's employment income. Based on husband's uncontroverted testimony at trial and his pay-stubs, the Court of Appeals made a finding on the issue of husband's employment income, which finding is to be used to recalculate child support on remand.

         Reversed and remanded for recalculation of child support; other wise affirmed.

         [297 Or.App. 700] AOYAGI, J.,

         Wife appeals a supplemental judgment modifying a general judgment of dissolution. In her first assignment of error, wife challenges the trial court's calculation of child support, specifically as related to husband's employment income and the parties' child care costs. In her second assignment of error, wife challenges the trial court's establishment of a 50/50 parenting plan. We reject the second assignment of error without written discussion. As to the first assignment of error, we exercise our discretion to review de novo the factual issue of how much income husband receives from employment and, having done so, reverse and remand for recalculation of child support in light of our finding on that issue. Otherwise, we affirm.

         Given our disposition, the relevant facts are minimal and largely procedural. The parties married in 2008. They have two young children together. In 2015, the court entered a general judgment of dissolution. The child support award included in the general judgment reflected both parents' lack of employment. A little over a year later, wife moved to modify custody, the parenting plan, and child support. By the time she filed that motion, both parties were employed. Although custody and the parenting plan were the most hotly contested issues at trial, we limit our discussion of the record to summarizing the evidence regarding husband's income from employment, as relevant to child support.

         On the day of trial, husband filed a Uniform Support Declaration (USD), using a form document with checkboxes and blank spaces, in which he provided information about his income. With respect to income from employment, husband stated on the second page of his USD that he earned $14.50 per hour, was paid twice monthly, and worked 32 hours per pay period. Husband also provided copies of his four most recent paystubs, which were attached to his USD.

         At trial, husband testified about his income from employment. During direct examination, husband answered affirmatively when asked whether he was "adopt[ing] the figures contained [in his USD] as [his] testimony regarding [297 Or.App. 701] [his] income." Notwithstanding that general adoption of the figures in the USD, however, husband was asked and answered specific questions about his income on both direct examination and cross-examination. He testified that he earned $14.50 per hour. He testified that he worked four days a week "from 7:30 to 4:00." He testified that he had previously worked five days a week but had stopped working on Saturdays to have more time with the children. He affirmed that the paystubs attached to his USD accurately reflected his work hours and how much he was paid. In that context, husband made a point of testifying that the most recent paystub attached to his USD-which recorded 62.67 hours worked-was a "more realistic representation" of his work hours than the other paystubs (some of which were higher and some of which were lower) and was "about the average amount" that he worked.

         Ultimately, the trial court ruled that it would modify custody, the parenting plan, and child support. With respect to child support, the court stated in its written order that child support "shall be calculated based on the guidelines utilizing the new parenting plan and the parties' respective incomes as stated in their uniform support declarations." Husband filed a proposed supplemental judgment consistent with that order. Wife objected, arguing, among other things, that the child support calculation was incorrect. The trial court signed and entered the proposed judgment.

         On appeal, wife challenges several aspects of the judgment. As already noted, however, we write only to address part of wife's first assignment of error. Specifically, we exercise our discretion under ORS 19.415(3) to review de novo how much employment income should be attributed to husband for purposes of ...


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