Kim and Kinnersley

No. 49 January 29, 2025 503

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of

Chantha KIM,

Petitioner-Appellant,

and

Daniel KINNERSLEY,

Respondent-Respondent.

Multnomah County Circuit Court

19DR02699; A180803

Susan M. Svetkey, Judge.

Argued and submitted October 29, 2024.

Elizabeth C. Savage argued the cause and filed the briefs

for appellant.

Andrew Newsom argued the cause and filed the brief for

respondent.

Leigh Shepley Miranda filed the brief amicus curiae for

Oregon Trial Lawyers Association.

Before Ortega, Presiding Judge, Hellman, Judge, and

Mooney, Judge.

ORTEGA, P. J.

Supplemental judgment vacated and remanded as to

retroactive child support, statutory interest, and “unreim-

bursed medical expenses” awards; otherwise affirmed.

504 Kim and Kinnersley

Cite as 337 Or App 503 (2025) 505

ORTEGA, P. J.

In this domestic relations case, mother appeals a

supplemental judgment that modified her monthly child sup-

port obligation to father; ordered her to pay $26,274 in ret-

roactive child support, plus $6,728.58 in statutory pre-judg-

ment interest; and ordered her to pay father $102,536 in

“unreimbursed medical expenses” for their minor child, S,

which were meant to cover half of the child’s private board-

ing school and summer camp tuition and related expenses.

In her first assignment of error, mother argues that pri-

vate boarding school and summer camp tuition and related

expenses were not recoverable as “unreimbursed medical

expenses” separate from child support and do not qualify

as “medical care” as a matter of law. In her second assign-

ment, mother argues that the trial court plainly erred in

ordering retroactive child support and “unreimbursed med-

ical expenses” that accrued prior to the date she was served

with father’s motion to modify.

We agree with mother’s second assignment and con-

clude that the trial court plainly erred in ordering mother to

pay for child support and “unreimbursed medical expenses”

accrued prior to July 11, 2022, the date mother was served

with father’s motion to modify, and we exercise discretion

to correct that error. That disposition obviates the need to

address the bulk of mother’s first assignment because all

but $130 of the awarded “unreimbursed medical expenses”

that mother challenges on appeal accrued before July 11,

2022. However, we accept father’s concession that the child’s

boarding school tuition and related expenses, including the

$130 expense accrued after July 11, 2022, are not “medical”

expenses. We therefore vacate the supplemental judgment

awards of retroactive child support, statutory interest, and

“unreimbursed medical expenses,” and remand for further

proceedings consistent with this opinion. We otherwise

affirm the supplemental judgment.

FACTS AND PROCEDURAL HISTORY

The parties are the parents of one minor child, S.

Pursuant to the general judgment of custody and parent-

ing time entered in 2008 under ORS chapter 109 (governing

506 Kim and Kinnersley

unmarried parties) when S was five months old, mother had

sole custody of S and father had regularly scheduled par-

enting time and paid monthly child support to mother. The

general judgment further required father to provide medi-

cal insurance for S and to pay 50 to 100 percent of any unin-

sured medical costs, depending on the circumstances.

In June of 2021, when S was 13 years old, the par-

ties stipulated to a supplemental judgment modifying cus-

tody and parenting time. They agreed that father would

have sole custody and that mother would have regularly

scheduled parenting time, except when S “engage[s] in a

3-week camp in Utah during the summer of 2021” during

which neither parent would have parenting time. Parents

further stipulated that “the issue of child support shall be

resolved through [a pending administrative child support]

proceeding, subject to each party’s right to appeal the deci-

sion to the circuit court.” Finally, parents agreed that “[f]

ather shall cover the child on medical insurance, and [m]

other may provide secondary insurance for the child.”

In June of 2022, father filed a motion to modify

child support, through counsel. Father asserted that mother

had “refused to allow the Department of Justice to modify

the pending child support order [in the administrative pro-

ceeding], citing that child support should not be ordered

since [S] is in boarding school.” Father represented that he

had covered all costs associated with boarding school and

that S resides with him when school is not in session. Father

requested that the child support modification be “retroac-

tive to September 1, 2020, the date [m]other was served with

the [previous] motion to modify custody that lead [sic] to the

entry of the most recent [stipulated supplemental judgment

entered June of 2021].”

Mother, who was then not represented by counsel,

was served with father’s motion to modify on July 11, 2022.

She filed a pro se response to father’s motion in which she

“agree[d] with the child support date starting September

2020.” However, mother denied that she had refused to

cooperate with the pending child support administra-

tive proceeding and asserted that it was father who had

refused to cooperate. Mother further asserted that, “despite

Cite as 337 Or App 503 (2025) 507

[her] previous and multiple objections,” father had sent S

to Wasatch Academy (Wasatch), a boarding school in rural

Utah, one month after entry of the June 2021 stipulated

supplemental judgment.

Mother objected to paying a share of S’s board-

ing school costs because public school is available to S and

because mother had repeatedly expressed objections to send-

ing S to boarding school and had repeatedly told father she

could not afford it. Mother also objected to S’s participation

in Aspiro Wilderness Program (Aspiro). Mother asserted

that S had been expelled from Wasatch in the fall of 2021,

that Wasatch required S to complete Aspiro before she could

return to Wasatch, and that father had sent S to Aspiro over

mother’s objection.

Through counsel, father submitted a memorandum

in support of his motion to modify. Father again asked that

monthly child support be ordered retroactive to September

2020. Father additionally asked the court to deviate from

the presumptive child support amount under the guide-

lines and to order mother to pay half of father’s “ongoing

out of pocket expenses” for S, including boarding school tui-

tion and related expenses from June 2021 through August

2022: Wasatch, $152,470; Aspiro, $38,570.75; and an Aspiro-

referred psychological evaluation, $4,200.

At the hearing on father’s motion in December 2022,

the trial court began by explaining to mother, who appeared

without counsel, what to expect at the hearing and that

the court understood, “from reading some of the pleadings,

and your response to [father’s] motion, that at least there’s

agreement as to the start date for child support” so “we don’t

have to spend any time talking about that.”

Father then testified that S, who was then 15 years

old, was enrolled in her sophomore year at Wasatch, a board-

ing school in Mount Pleasant, Utah, and began at Wasatch

in the summer of 2021 when she attended a three-week

summer camp there. He offered that S had had “some rough

patches” during her freshman year at Wasatch and entered

the eight-week Aspiro wilderness program as “an ask from

* * * Wasatch Academy to help with some of her impulsivity[.]”

508 Kim and Kinnersley

Aspiro requires a psychological evaluation to com-

plete the program, and S was evaluated in November 2021

while attending Aspiro. The evaluator diagnosed S with

depression, anxiety, ADHD, and specific learning disabili-

ties and “strongly recommended that [S] complete the pro-

gram at Aspiro” and “transition to a structured, support-

ive educational boarding placement” after completing the

program. The evaluator also recommended, among other

things, that S pursue individual and family therapy. Father

paid for all of the expenses related to Wasatch and Aspiro.

Mother testified consistently with her written

response.

In closing, father’s counsel again asked the court

to order mother to pay monthly child support retroactive to

September 2020, plus statutory interest, under the guide-

lines. Father’s counsel asked the court to additionally order

mother to reimburse him for his additional out-of-pocket

costs based on S’s “extraordinary” needs and cited OAR 137-

050-0760(1)(o) as the source of authority for that request.

For her part, mother asked the court to order her to pay half

of S’s medical costs subject to a reasonable cap and asserted

that she could not afford to pay for S’s boarding school and

related costs, but that if the court did order her to pay half,

she would like to receive credit for the child support she had

already paid father.

The trial court granted father’s motion. The court

first noted mother’s “stipulation to the start date of the child

support amount.” The court ruled that mother must pay for

half of the psychological evaluation and individual therapy

costs as “out-of-pocket medical expenses.” The court then

acknowledged case law that “says that if one parent wants a

child to go to private school and the other one doesn’t, then

the one who doesn’t want the child to go to private school

doesn’t have to pay the tuition.” Nevertheless, relying on the

psychological evaluation’s recommendations, the court found

that “this is a very different situation * * * where a child

with significant mental health, medical and emotional dif-

ficulties and diagnoses needs a certain kind of educational

environment in order to meet that child’s needs, in order to

keep that child safe and in order to address the challenges

Cite as 337 Or App 503 (2025) 509

that she has.” The court accordingly ordered mother to pay

half of S’s boarding school tuition and related expenses as

“extraordinary out-of-pocket medical expenses”:

“THE COURT: [A]s part of child support both parents

should be paying to support [S] getting the medical care she

needs, which for her means being at the private school that

she’s in, Wasatch, and which also means that she attended

the boot camps [at Wasatch and Aspiro] * * * to support her

not just academically * * * but to support her mental health

and her psychological well-being and her medical needs.”

The court acknowledged that “a tremendous amount

of money” was involved, and that mother had declared sig-

nificant debts in her Uniform Support Declaration, but noted

that mother “may be filing for bankruptcy in which I know

you get rid of a large percentage of debt that you say you

have.” The court also acknowledged that mother “probably

did object to” father sending S to Utah but that “as a matter

of law the custodial parent has the right to pick what school

a child goes to.”

In February 2023, the trial court entered a supple-

mental judgment ordering mother to pay father $26,274 in

retroactive child support, plus $6,728.58 statutory pre-judg-

ment interest, and $102,536 in “unreimbursed medical

expenses,” in addition to monthly child support going for-

ward. Mother timely appeals that judgment.

We address mother’s second assignment of error

first, because it provides more complete relief than her first.

Mother contends that the trial court plainly erred in order-

ing her to pay retroactive child support and “unreimbursed

medical expenses” accrued prior to July 11, 2022, the date

mother was served with father’s motion to modify child

support.1

To qualify for plain-error review under ORAP 5.45,

an error must be (1) an error of law; (2) obvious and not rea-

sonably in dispute; and (3) apparent on the record without

requiring an appellate court to choose among competing

inferences. See, e.g., State v. Vanornum, 354 Or 614, 629,

1

Although the trial court also ordered mother to pay for half of S’s out-of-

network therapy, we do not understand mother to challenge those expenses on

appeal.

510 Kim and Kinnersley

317 P3d 889 (2013) (outlining requirements of plain-error

review). If an error is plain, we must then decide whether to

exercise our discretion to review and correct the error and

explain our reasons for doing so. Id. at 630; see also Ailes

v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d

956 (1991) (describing nonexclusive list of factors to consider

when deciding whether to exercise discretion to correct a

plain error).

We conclude that the error is plain. Whether the

trial court acted within its statutory authority is a question

of law. Gilmore and Ambrose, 258 Or App 747, 748, 311 P3d

970 (2013) (absent de novo review in a child support case, “we

review the trial court’s decision for legal error”); cf. Dept. of

Human Services v. A. B., 286 Or App 578, 580, 401 P3d 279

(2017) (reviewing “whether the juvenile court acted within

its statutory authority, including the construction of rele-

vant statutes, for legal error”). The error is apparent on the

face of the record: mother was served with father’s motion on

July 11, 2022, and the supplemental judgment orders child

support “retroactive to September 1, 2020.”

Further, the error is obvious and not reasonably in

dispute. ORS 107.135(1)(a) provides that a court may, “upon

the motion of either party and after service of notice on

the other party in the manner provided by ORCP 7, * * * [s]

et aside, alter or modify any portion of the judgment that

provides for the * * * support and welfare of the minor chil-

dren[.]”2 Further, ORS 107.135(7) provides, in part, that

such a “judgment is final as to any installment or payment

of money that has accrued up to the time the nonmoving

party, other than the state, is served with a motion to mod-

ify the judgment.” Finally, ORS 107.135(6) makes clear that

“[a]ny modification of child * * * support * * * may be ordered

effective retroactive to the date the motion for modification

was served or to any date thereafter.” (Emphasis added.)

2

Parents who were never married to each other “have the same rights and

responsibilities regarding the custody and support of, and parenting time with,

their child that married or divorced parents would have, and the provisions of

ORS 107.094 to 107.449 that relate to custody, support and parenting time * * *

apply to” a civil proceeding to determine the custody or support of, or parenting

time with, the child. ORS 109.103.

Cite as 337 Or App 503 (2025) 511

We have consistently construed those statutes and

their predecessors to authorize a trial court to modify child

support only prospectively. See, e.g., Mason and Mason, 193

Or App 300, 301, 89 P3d 1205 (2004) (per curiam) (trial court

erred in sua sponte imposing retroactive child support obli-

gation without appropriate motion); Thomsen and Thomsen,

167 Or App 218, 223, 2 P3d 432 (2000) (“[I]t is well settled that

we may modify spousal and child support awards only from

the date of the motion for modification forward; all amounts

previously in arrears have become judgments and may not be

modified, except in very narrow circumstances not at issue

here.”); Pedroza and Pedroza, 128 Or App 102, 106-07, 875

P2d 478 (1994) (“The Oregon appellate courts have repeat-

edly held that, under ORS 107.135([7]) and its predecessors,

‘installments of child support that have accrued before a

motion to modify is made become final judgments and are

beyond the power of the court to modify.’ ” (Quoting Sheldon

and Sheldon, 82 Or App 621, 623, 728 P2d 946 (1986), rev den,

302 Or 615 (1987), and collecting cases). That rule of law is

rooted in concerns for the finality of judgments. Eagen and

Eagen, 292 Or 492, 495, 640 P2d 1019 (1982) (“[T]he purpose

of the enactment of what is now numbered ORS 107.135([7])

was to raise support orders to the dignity of judgments,

enforceable as such.”); Poe v. Poe, 246 Or 458, 459, 425 P2d

767 (1967) (“This court has repeatedly held, since the finality

of the installment judgment was added to the statute in 1921

(Oregon Laws 1921, ch 114, p 225), that the court is without

power to modify or change support money payments once

they have become a judgment.”).

Contending that the error is not obvious, father

argues that ORS 107.135(15)3 authorized the trial court

3

ORS 107.135(15) provides:

“(a) It is the policy of this state:

“(A) To encourage the settlement of cases brought under this section; and

“(B) For courts to enforce the terms of settlements described in para-

graph (b) of this subsection to the fullest extent possible, except when to do so

would violate the law or would clearly contravene public policy.

“(b) In a proceeding under subsection (1) of this section, the court may

enforce the terms set forth in a stipulated order or judgment signed by the

parties, an order or judgment resulting from a settlement on the record or an

order or judgment incorporating a settlement agreement:

“(A) As contract terms using contract remedies;

512 Kim and Kinnersley

to enforce the parties’ “stipulated agreement” regarding ret-

roactive child support. We reject that argument. By its plain

terms, ORS 107.135(15) authorizes a trial court to enforce

the terms set forth in “a stipulated order or judgment signed

by the parties, an order or judgment resulting from a settle-

ment on the record[,] or an order or judgment incorporating a

settlement agreement.” (Emphases added.) Mother’s written

stipulation in her responsive pleading and her oral assent

at the modification hearing are not “order[s] or judgment[s]”

within the meaning of ORS 107.135(15). Father’s reliance on

Reeves and Elliott, 237 Or App 126, 238 P3d 427 (2010), is

similarly misplaced because that case involved the enforce-

ment of a stipulated judgment of dissolution that squarely

falls within the terms of ORS 107.135(15). In any event, we

have held that a stipulated judgment cannot provide for ret-

roactive modification of support to a date before the filing of

the motion to modify because the agreement “cannot confer

authority on the court that ORS 107.135([7]) expressly with-

holds.” Hutchinson and Hutchinson, 187 Or App 733, 745-46,

69 P3d 815 (2003) (en banc).4

Having concluded that the error is plain, we exercise

our discretion to correct it. The ends of justice militate against

requiring mother to pay an obligation that the trial court was

not statutorily authorized to impose. Cf. State v. Riverman,

“(B) By imposing any remedy available to enforce an order or judgment,

including but not limited to contempt; or

“(C) By any combination of the provisions of subparagraphs (A) and (B) of

this paragraph.

“(c) A party may seek to enforce an agreement and obtain remedies

described in paragraph (b) of this subsection by filing a motion, serving

notice on the other party in the manner provided by ORCP 7 and, if a rem-

edy under paragraph (b)(B) of this subsection is sought, complying with the

statutory requirements for that remedy. All claims for relief arising out of the

same acts or omissions must be joined in the same proceeding.

“(d) Nothing in paragraph (b) or (c) of this subsection limits a party’s

ability, in a separate proceeding, to file a motion to modify an order or judg-

ment under subsection (1) of this section or to seek enforcement of an ancil-

lary agreement to the order or judgment.”

4

We note that father does not argue on appeal that mother is liable for S’s

“uninsured medical expenses” under the terms of the original 2008 judgment

or the 2021 supplemental judgment. ORS 107.104 provides for a proceeding to

enforce the terms of an existing judgment; father’s motion at issue in this appeal

sought relief under ORS 107.135 to modify an existing judgment, not to enforce it

under ORS 107.104.

Cite as 337 Or App 503 (2025) 513

320 Or App 388, 392, 513 P3d 13 (2022) (exercising discretion

to correct a plainly erroneous restitution award “because the

interests of justice weigh against requiring defendant to pay

an obligation that is unsubstantiated by the record”). Of the

challenged financial obligations imposed in the supplemen-

tal judgment, all but a $130 “2022 Summer School Baggage

Fee” listed in the Wasatch invoice accrued before mother was

properly served with father’s motion to modify. Further, the

retroactive child support award alone ($26,274) is a substan-

tial financial obligation that is sufficiently grave to warrant

exercising our discretion to correct it. Id. (exercising discre-

tion to correct nearly $10,000 plainly erroneous restitution

award due to the substantial gravity of the error).

Finally, we are unpersuaded by father’s arguments

that we should decline to exercise our discretion to correct

the error, at least with respect to retroactive child support

and to Aspiro. In deciding whether to exercise our discre-

tion, we may also “consider whether the party alleging the

plain error encouraged the error or made a strategic choice

not to object to it.” State v. Wiltse, 373 Or 1, 23, 559 P3d 380

(2024). Here, it was father, through counsel, who initially

and repeatedly sought retroactive support contrary to estab-

lished law. And the trial court, which in other respects sua

sponte interjected to guide mother as to the relevant legal

issues at the hearing, made clear at the very beginning that

mother’s pro se concession in her responsive pleading took

that issue off the table. In our view, the circumstances of

this case suggest that mother’s uncounseled concession in

her responsive pleading did not encourage the error so much

as acquiesce to it. And, contrary to father’s position, we dis-

cern no plausible strategic reason for mother agreeing to ret-

roactive child support when it was not legally authorized. As

to Aspiro, mother consistently objected to those expenses.5

5

Father has repeatedly asserted, both below and on appeal, that mother

“stipulated” to S attending Aspiro because it is the “3-week camp in Utah” ref-

erenced in the June 2021 stipulated supplemental judgment. That argument is

not well taken. To the extent that that provision of the stipulated judgment was

referring to Aspiro at all, it did so in the context of mother stipulating to an

exception to her parenting time and not as stipulating to S’s attendance or to

mother’s financial liability for the program’s cost. In any event, the record reflects

that S actually attended a three-week camp at Wasatch Academy in the summer

of 2021 and that she attended Aspiro for eight weeks in October and November of

2021.

514 Kim and Kinnersley

We therefore vacate the supplemental judgment as

to the retroactive support award and concomitant statutory

interest. On remand, the court may order child support and

statutory interest retroactive no earlier than July 11, 2022.

We also vacate the supplemental judgment as to the “unreim-

bursed medical expenses” award. On remand, the trial court

may award expenses accrued no earlier than July 11, 2022.

FIRST ASSIGNMENT OF ERROR

The only remaining expense mother challenges that

is not resolved by her second assignment of error is the $130

“2022 Summer School Baggage Fee” listed in the Wasatch

invoice. Mother’s first assignment of error challenges all

expenses related to Wasatch and Aspiro, including that

$130 fee, on several grounds. Father concedes that Wasatch

tuition and related expenses are “education costs” and not

“medical” costs and that the trial court erred in ordering

them separate from child support. We accept father’s con-

cession. See Berry and Berry, 196 Or App 296, 300, 101 P3d

817 (2004) (trial court erred in ordering education costs

separate from child support instead of as rebuttal factor to

deviate from presumptive amount under guidelines); Wiebe

and Wiebe, 113 Or App 535, 538, 833 P2d 333 (1992) (“The

educational expenses of a child may justify a deviation

from the presumed amount of child support provided by the

guidelines, * * * but those expenses are a part of, and not in

addition to, a child support obligation and are subject to the

statutory limitations of such an obligation.” (Emphasis in

original.)). As our disposition on mother’s second assignment

of error already requires that we vacate the “unreimbursed

medical expenses” award, on remand the trial court may

not order mother to pay the $130 Wasatch “2022 Summer

School Baggage Fee” as a “medical expense.”6

Supplemental judgment vacated and remanded as

to retroactive child support, statutory interest, and “unre-

imbursed medical expenses” awards; otherwise affirmed.

6

Although father asks for “a limited remand for the purposes of entering a

child support rebuttal for S’s average boarding school costs,” he did not cross-as-

sign error to the trial court’s ruling awarding him prospective monthly child

support. We therefore affirm the supplemental judgment as to mother’s monthly

child support obligation to father.