Matar and Harake

446 April 18, 2013 No. 17

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of the Marriage of

Lisa MATAR,

Respondent on Review,

and

STATE OF OREGON,

Petitioner below,

and

Azzam HARAKE,

Petitioner on Review.

(CC C032405DRC; CA A143331; SC S060064)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 8, 2012; resubmitted

January 7, 2013.

Daniel S. Margolin, Stephens Margolin PC, Portland,

argued the cause and filed the brief for petitioner on review.

Helen C. Tompkins, Portland, argued the cause and filed

the brief for respondent on review.

WALTERS, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

*  Appeal from Washington County Circuit Court, Keith R. Raines, Judge. 246

Or App 317, 270 P3d 257 (2011).

Cite as 353 Or 446 (2013) 447

Father filed a motion to show cause why his child support obligation should

not be reduced based on an alleged reduction in his income, arguing that although

the parties had agreed not to seek modification of their child support obligations

in their stipulated judgment of dissolution, that agreement was unenforceable as

contrary to public policy. The trial court found that the parties’ nonmodification

agreement was enforceable because it neither divested the court of jurisdiction

nor violated public policy. The Court of Appeals affirmed. Held: (1) ORS 107.104

and ORS 107.135(15) are applicable to terms of marital settlement agreements

pertaining to child support; (2) child support nonmodification agreements do not

always fall within the public policy exception articulated in those statutes; and

(3) where father did not demonstrate that the stipulated child support award was

insufficient to meet his children’s needs or that enforcement of the agreement

would otherwise violate public policy, the trial court did not err in enforcing the

parties’ nonmodification agreement in accordance with ORS 107.104 and ORS

107.135(15).

The decision of the Court of Appeals and the judgment of the circuit court are

affirmed.

448 Matar and Harake

WALTERS, J.

In this domestic relations case, we decide that,

pursuant to ORS 107.1041 and ORS 107.135(15),2 a court

may enforce an agreement between parents not to seek

modification of the child support terms of a stipulated

judgment of dissolution unless to do so would violate the

law or contravene public policy. We also decide that, in this

case, father did not demonstrate that enforcement of his

nonmodification agreement with mother violated the law

or contravened public policy. Consequently, we affirm the

decision of the Court of Appeals and the judgment of the

circuit court. Matar and Harake, 246 Or App 317, 270 P3d

257 (2011).

I.  FACTS AND PROCEDURAL HISTORY

The relevant facts are undisputed and are taken

from the record. In February 2005, the parties stipulated

to a judgment dissolving their marriage. At that time, the

parties had been married for seven years and had two minor

children, then ages four and six. The judgment provided

that the parties would have joint legal custody of their

children, with mother having primary physical custody and

father having reasonable parenting time. It also required

that father pay child support of $1,750 per month, which

exceeded by $8 the presumptively correct amount indicated

by application of the Oregon Child Support Guidelines

Formula (Child Support Formula).3 The judgment provided

1

ORS 107.104(1) provides:

“It is the policy of this state:

“(a)  To encourage the settlement of suits for marital annulment,

dissolution or separation; and

“(b)  For courts to enforce the terms of settlements described in subsection

(2) of this section to the fullest extent possible, except when to do so would

violate the law or would clearly contravene public policy.”

2

ORS 107.135(15) provides, in part:

“(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 paragraph

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

violate the law or would clearly contravene public policy.”

3

Oregon law requires that the Division of Child Support of the Department

of Justice establish a formula that courts and agencies must use in determining

Cite as 353 Or 446 (2013) 449

that neither party would seek modification of that support

obligation:

“This agreement has been made with the understanding

that child support will not be reduced and shall continue

to be paid until the children are 21 years old. The parties

stipulate that neither will seek a support modification due

to income changes of the parties, nor due to a change of

circumstances. For example, the child support amount will

remain consistent even if Father has the children 50%

of the time. This is a deviated support arrangement and

came about due to the position of this case and the original

decree’s order of judgment.”

The judgment further provided that “[n]either party shall be

awarded or pay spousal support because of the child support

agreement reached by the parties” and that “[t]he parties

have reached complete agreement on the terms of their

dissolution with regard to marital assets and debts, custody,

parenting time, and child support as set forth herein.” Both

parties were represented by counsel, and father did not

object to or appeal the entry of the stipulated judgment at

the time.

In 2009, father filed a motion to require mother to

appear and show cause why father’s child support obligation

should not be reduced based on an alleged reduction in his

monthly income from $7,300 to $6,200 and his support of two

additional children.4 Mother filed a response and pleaded an

affirmative defense of waiver, attaching and incorporating

by reference a copy of the parties’ stipulated judgment.

Mother also filed a motion to dismiss and asserted that

father’s agreement not to seek a reduction in child support

child support awards. That formula, which we will refer to as the “Child Support

Formula,” is contained in OAR 137-050-0700 through OAR 137-050-0765.

4

In his affidavit in support of his motion to show cause, father also asserted

that he had agreed to pay more child support than the presumptively correct

amount “in exchange for * * * being allowed joint custody of the children” and that

“[mother] recently modified the custody arrangement and has been awarded sole

legal custody.” In the legal memorandum that father filed thereafter, father did

not make any argument pertaining to the change in custody. Father also did not

mention that issue at the hearings that the trial court subsequently conducted.

The trial court found that a substantial change in circumstances had occurred

based only on father’s reduction in income. Father did not make any arguments

relating to the change in custody on appeal to the Court of Appeals or on review to

this court.

450 Matar and Harake

due to a change in his income barred father from seeking

modification of the stipulated child support award.

The parties agreed that the court should decide,

as a preliminary matter, the legal issue raised by mother’s

motion to dismiss, and both parties filed memoranda in

support of their positions. Father argued that (1) “child

support is a right of the child not of the parents, and there

is a strong public policy against parties contracting around

the [Child Support Formula]”; (2) the terms of marital

settlement agreements may not deprive a court of its

authority to modify child support due to a substantial change

in circumstances; and (3) because father had demonstrated

a substantial change in circumstances, enforcement of the

nonmodification provision violated public policy and was

unenforceable.

At a hearing on mother’s motion, the trial court

indicated that it intended to grant the motion but,

understanding that father was considering an appeal,

scheduled a second hearing and asked that the parties

present the evidence that they would have presented had

mother not sought dismissal of the proceeding. At the

conclusion of that second hearing, the court entered a

Supplemental Judgment of Dismissal and, as requested by

mother, made specific Findings of Fact and Conclusions of

Law. The court found that father had shown a substantial

change in circumstances through reduction in his income

but that he had entered into a nonmodification agreement

that neither divested the court of jurisdiction nor violated

public policy. Therefore, the court concluded, the parties’

nonmodification agreement was enforceable, and father’s

motion for modification should be dismissed.

As the trial court anticipated, father appealed.

In the Court of Appeals, father argued that the parties’

nonmodification agreement was necessarily contrary to

public policy, because it prevented the court from ensuring

that father’s child support obligation conformed with the

Child Support Formula and, in doing so, divested the court

of its role in protecting children. Father also asserted that

the legislature could not have intended that ORS 107.104

and ORS 107.135(15) apply to provisions of marital

Cite as 353 Or 446 (2013) 451

settlement agreements pertaining to child support and that

the trial court had erred in dismissing father’s motion for

modification.

The Court of Appeals affirmed the judgment of the

trial court. Matar, 246 Or App at 319. The court reasoned

that ORS 107.104(1) and ORS 107.135(15)(a) create a

presumption in favor of enforcing stipulated agreements

resolving suits for marital dissolution, annulment, and

separation—a presumption that applies to the child support

terms in those agreements. Id. at 320. An agreement that

purported to divest the court of authority to modify child

support would not be enforceable. However, the court held,

Oregon law does not prohibit parties from waiving the right

to seek modification of child support; such agreements are

enforceable unless they violate the law or contravene public

policy. Id. at 322. In this case, the court concluded, the parties’

agreement did not do so, and the trial court did not err. Id.

at 323. We allowed father’s petition for review to consider

the relationship between two sets of statutes: (1) those that

impose child support obligations and establish procedures

and standards for determining and modifying child support;

and (2) those that provide for judicial enforcement of the

terms of marital settlement agreements.

Before this court, father essentially renews his

previous arguments. First, he argues that the legislature did

not intend the statutes that provide for judicial enforcement

of martial settlement agreements (ORS 107.104 and

ORS 107.135(15)) to apply to terms in those agreements

pertaining to child support. Second, he argues that, even

if those statutes do apply to such terms, agreements not

to modify child support are necessarily unenforceable as

contrary to public policy, “regardless of the specifics of each

factual scenario.”5 Father suggests that such nonmodification

provisions violate public policy both because they “interfere

with the courts’ and the [s]tate’s ability to make child

support determinations in the best interest of particular

children” and because they prevent parents from seeking

to modify child support based on unanticipated changes

5

Father argues that nonmodification provisions necessarily contravene public

policy. He does not argue that nonmodification provisions necessarily violate

specific provisions of Oregon law.

452 Matar and Harake

in circumstances. For her part, mother argues that ORS

107.104 and ORS 107.135(15) are applicable to all terms in

marital settlement agreements, including terms pertaining

to child support, and that parents’ agreements to waive their

rights to seek modification of child support are enforceable

unless, in a particular case, enforcement would violate the

law or contravene public policy. Mother argues that, in this

case, enforcement of the parties’ nonmodification provision

did not contravene public policy.6

We begin our analysis by reviewing the applicable

sets of Oregon statutes—those that require parents to

support their children and those that make parents’ marital

settlement agreements enforceable.

II.  PARENTS’ CHILD SUPPORT OBLIGATIONS

Parents have a legal duty to support their children.

ORS 109.010 (“Parents are bound to maintain their children

who are poor and unable to work to maintain themselves;

and children are bound to maintain their parents in like

circumstances.”); ORS 109.015 (“It is the public policy of

this state that dependent children shall be maintained,

as much as possible, from the resources of both parents

* * *.”); Haxton and Haxton, 299 Or 616, 632, 705 P2d 721

(1985) (statutory duty of parental support exists and may

be enforced in a direct action by a child against a parent).

Parents cannot, by contract, avoid that obligation. See

Jackman v. Short, 165 Or 626, 109 P2d 860 (1941) (court

modified divorce decree to require payment of child support

even though original divorce decree was silent); Gibbons v.

Gibbons, 75 Or 500, 503, 147 P 530 (1915) (because “[t]he

welfare of these infants is paramount to the rights of any

other person[,]” an agreement that makes no provision for

the care of the children cannot be binding when it deprives

the children of their right to maintenance). In Hess v. Hess,

115 Or 595, 239 P 124 (1925), the court explained:

“The stipulation did not bind the mother to exclusively

support the child, but if it had, it would not have been

binding upon the child or those having the custody of it,

for the obligation of a parent to support a dependent child

is one imposed by law and arises from the relationship

6

Mother also makes various preservation arguments, which we reject.

Cite as 353 Or 446 (2013) 453

of the parties and the requirements of the child, and this

responsibility neither parent can shirk.”

Id. at 598-99.

The Oregon legislature has enacted various statutes

that, taken together, protect a child’s right to parental

support. First, the statute that governs suits for dissolution,

annulment, or separation authorizes courts to enter child

support awards in such proceedings. ORS 107.105(1)(c).

ORS 107.106(b) recognizes that those awards “are designed

for the child’s benefit and not the parents’ benefit” and

requires that judgments entered in such proceedings include

a statement so informing parents.

Second, other statutes give children and the state

independent rights to seek or enforce child support awards.

ORS 109.100 allows a child to seek an award of child support

by filing his or her own petition for support. ORS 107.108

makes a “child attending school” a party to proceedings

between parents and creates safeguards to ensure that the

child benefits from orders intended to provide support or

maintenance.7 ORS 25.080(4) authorizes the Department

of Justice to establish and enforce child support obligations

and to initiate and respond to child support modification

proceedings when support is assigned to or provided by the

state.8

7

ORS 107.108 provides, in part:

“(3) *  * [A] child attending school is a party to any legal proceeding

*

related to the support order. A child attending school may:

“* * * * *

“(b)  Request a judicial or administrative modification of the child

support amount or may receive notice of and participate in any modification

proceeding[.]

“* * * * *

“(5)(a) If a support order provides for the support or maintenance of a

child attending school and the child qualifies as a child attending school,

unless good cause is found for the distribution of the payment to be made in

some other manner, support shall be distributed to the child if services are

being provided under ORS 25.080 or shall be paid directly to the child if those

services are not being provided.”

8

ORS 25.080(4) provides, in part:

“When responsible for providing support enforcement services and there

is sufficient evidence available to support the action to be taken, [the Division

of Child Support of the Department of Justice]:

454 Matar and Harake

Third, in accordance with federal law, courts and

agencies are required to use the Child Support Formula

in determining the amount of any child support award.

ORS 25.270;9 ORS 25.280.10 The Child Support Formula

is designed to generate an amount of child support that

is presumptively correct, considering both the financial

situation of the parents and the needs of the child for whom

the support is being sought. ORS 25.275.11 A support award

determined pursuant to the Child Support Formula is

“(a)  Shall establish and enforce any child support obligation;

“* * * * *

“(e) Shall, on behalf of the state, initiate and respond to child support

modification proceedings based upon a substantial change of circumstances;

“(f) Shall, on behalf of the state, initiate and respond to child support

modification proceedings based upon a modification conducted under ORS

25.287 concerning existing child support orders[.]”

9

ORS 25.270 provides, in part:

“(1)  The federal Family Support Act of 1988 mandates that the state must

establish a formula for child support award amounts that is applicable in any

judicial or administrative proceeding for the award of child support.

“(2)  It is further mandated that the amount of child support determined

by the formula must be presumed to be the correct amount unless rebutted

by a specific finding on the record that the application of the formula would

be unjust or inappropriate in the particular case as determined under criteria

established by the state.

“* * * * *

“(5) The Division of Child Support of the Department of Justice is the

appropriate agency to establish the required formula.”

10

ORS 25.280 provides, in part:

“In any judicial or administrative proceeding for the establishment

or modification of a child support obligation *  * the amount of support

*

determined by the formula established under ORS 25.275 is presumed to be

the correct amount of the obligation. This is a rebuttable presumption and a

written finding or a specific finding on the record that the application of the

formula would be unjust or inappropriate in a particular case is sufficient to

rebut the presumption.”

11

ORS 25.275(1) provides:

“The Division of Child Support of the Department of Justice shall establish

by rule a formula for determining child support awards in any judicial or

administrative proceeding. In establishing the formula, the division shall take

into consideration the following criteria:

“(a)  All earnings, income and resources of each parent, including real and

personal property;

“(b)  The earnings history and potential of each parent;

“(c)  The reasonable necessities of each parent;

“(d)  The ability of each parent to borrow;

Cite as 353 Or 446 (2013) 455

“presumed to be *  * correct”; it may, however, be rebutted

*

if a court or agency makes specific written findings

that the application of the formula would be “unjust” or

“inappropriate” in a particular case. ORS 25.280.

Recognizing that parents’ ability to support

their children may change over time, Oregon law also

provides for the modification of child support awards. ORS

107.135(3)(a) authorizes a parent to seek modification of

child support and specifies that a “substantial change in

economic circumstances of a party” is “sufficient for the

court to reconsider its order of support[.]”12 ORS 109.100

anticipates that a child may bring an independent petition

to modify child support.13 When the state is responsible for

child support enforcement, ORS 25.287(1) authorizes it to

seek modification to ensure that the support award is in

substantial compliance with the Child Support Formula. The

state cannot seek such modification more often than every

three years “or such shorter cycle as determined by rule

of the Department of Justice[.]” ORS 25.287(1)(b). When a

party seeks modification, the court or agency must apply the

Child Support Formula and rebuttal factors in setting the

amount of support. That is true whether the modification

proceeding is initiated by a parent, a child, or the state. ORS

25.270; ORS 25.280.

“(e)  The educational, physical and emotional needs of the child for whom

the support is sought;

“(f)  The amount of assistance that would be paid to the child under the full

standard of need of the state’s IV-A plan;

“(g)  Preexisting support orders and current dependents; and

“(h)  Other reasonable criteria that the division may find to be appropriate.”

12

That statute codified this court’s holding that a party seeking modification

must demonstrate a substantial change in circumstances and that parties are

otherwise precluded from relitigating settled matters. McDonnal and McDonnal,

293 Or 772, 783, 652 P2d 1247 (1982).

13

ORS 109.100 provides, in part:

“(1)  Any minor child * * * may * * * apply * * * for an order upon the child’s

father or mother, or both, to provide for the child’s support.

“* * * * *

“(4)  The judgment of a court under subsection (1) of this section is final as

to any installment or payment of money that has accrued up to the time either

party makes a motion to set aside, alter or modify the judgment * * *.”

456 Matar and Harake

III.  ENFORCEMENT OF PARENTS’ SETTLEMENT

AGREEMENTS

The second set of statutes relevant to the issue

before us are those that permit the enforcement of parents’

settlement agreements. In 2001, the legislature enacted

ORS 107.104, which announces a policy of encouraging

settlement agreements in suits for martial annulment,

dissolution, or separation and provides for the enforcement

of settlement terms. ORS 107.104 provides:

“(1)  It is the policy of this state:

“(a) To encourage the settlement of suits for marital

annulment, dissolution or separation; and

“(b)  For courts to enforce the terms of settlements

described in subsection (2) of this section to the fullest

extent possible, except when to do so would violate the law

or would clearly contravene public policy.”

That statute further provides that a court may enforce

settlement terms using contractual remedies as well as any

other remedies available to enforce a judgment, including

but not limited to contempt.14 ORS 107.104(2).15 ORS

107.135(15)(a) is analogous: It provides for the enforcement

of settlement agreements in modification proceedings and

authorizes the use of contractual and other remedies, except

when enforcement would violate the law or contravene

public policy.16

14

In permitting parties to bring enforcement actions using contractual

remedies as well as any other remedies available to enforce a judgment, ORS

107.104 and ORS 107.135(15) overturned Webber v. Olsen, 330 Or 189, 998 P2d

666 (2000), in which the court had declined to enforce as a contract an agreement

included in a stipulated judgment of dissolution.

15

ORS 107.104(2) provides:

“In a suit for marital annulment, dissolution or separation, the court

may enforce the terms set forth in a stipulated judgment signed by the

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

incorporating a marital settlement agreement:

“(a)  As contract terms using contract remedies;

“(b)  By imposing any remedy available to enforce a judgment, including

but not limited to contempt; or

“(c)  By any combination of the provisions of paragraphs (a) and (b) of this

subsection.”

16

ORS 107.135(15) provides, in part:

“(a)  It is the policy of this state:

Cite as 353 Or 446 (2013) 457

Both statutes are consistent with this court’s

decision in McDonnal and McDonnal, 293 Or 772, 778, 652

P2d 1247 (1982). In that case, the court observed that, in

enacting statutes permitting dissolution of marriage without

demonstration of fault, the legislature had sought in part to

avoid unnecessary litigation and use of judicial resources and

to encourage parties to settle their disputes more amicably.

Id. at 778. Those objectives, the court explained, “are most

effectively advanced when proposed property and support

agreements are accepted by the court and incorporated into

the dissolution decree.”17 Id. at 779. Furthermore, the court

suggested, marital agreements should be enforced for many

of the same reasons that courts enforce private contracts

generally:

“It is axiomatic that public policy requires that persons

of full age and competent understanding shall have the

utmost liberty of contracting, and that their contracts, when

entered into freely and voluntarily, shall be held sacred and

shall be enforced by courts of justice; and it is only when

some other overpowering rule of public policy intervenes,

rendering such agreements unfair or illegal, that they will

not be enforced.”

Id. at 779 (internal citations and quotation marks omitted).

Where an agreement has been incorporated into a decree,

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

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

(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;

“(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.”

17

The passage of no-fault divorce laws and the increased respect for private

agreements generally was part of a growing national recognition that people should

have greater autonomy in organizing their domestic relationships. See Jana B.

Singer, The Privatization of Family Law, 1992 Wis L Rev 1443, 1509 (documenting

the shift from marriage-as-status to marriage-as-contract and the rise of private

decision making in family law, and suggesting that these shifts were connected to

changing notions of individual privacy and decisional autonomy).

458 Matar and Harake

the agreement itself is a measure of the equities between the

parties, and where parties have foregone their opportunity to

litigate and have chosen instead to enter into an agreement,

“their reliance on [that] agreement can be presumed.” Id. at

779. With those considerations in mind, “[t]he parties’ own

resolution of their dispute should be accorded great weight,”

and the court has a “responsibility to discover and give effect

to the intent of the parties as reflected in the incorporated

settlement agreement.” Id. As a result, the court concluded

that martial dissolution agreements, “[o]nce approved by

the court and incorporated into the decree[,] *  * are to be

*

enforced as a matter of public policy.” Id.

IV. ANALYSIS

Having described the applicable statutes, we return

to the parties’ arguments about the interrelationship of

those statutes and the policies that they embody. We begin

with father’s argument that the legislature did not intend

ORS 107.104 and ORS 107.135(15) to apply to the child

support terms of marital settlement agreements. To analyze

that argument, we look first to the text and context of those

statutes. State v. Gaines, 346 Or 160, 171, 206 P3d 1042

(2009) (stating analysis).

ORS 107.104 provides for judicial enforcement

of the “terms” of stipulated judgments in suits for marital

annulment, dissolution, or separation. Pursuant to ORS

107.105(1)(c), such terms may include those that provide

“[f]or the support of the children of the marriage.” Similarly,

ORS 107.135(15)(a) provides for enforcement of “terms”

of stipulated orders or judgments reached in proceedings

to set aside, alter, or modify judgments of annulment,

dissolution, or separation. Pursuant to ORS 107.135(1), such

proceedings may include the modification of any portion of

a judgment that provides for “support and welfare of the

minor children.” ORS 107.135(1)(a).18 Thus, the text and

context of both ORS 107.104 and ORS 107.135(15) reflect

18

ORS 107.135(15)(a) declares that it is the policy of the state for courts to

enforce the terms of settlements described in ORS 107.135(15)(b). ORS 107.135(15)

(b) authorizes courts to enforce the terms of settlement agreements reached in

proceedings under ORS 107.135(1). That statute provides, in part:

“(1) The court may at any time after a judgment of annulment or

dissolution of marriage or of separation is granted * * * :

Cite as 353 Or 446 (2013) 459

a legislative intent to make those provisions applicable to

terms of marital settlement agreements pertaining to child

support.

Father nevertheless argues that the public policies

reflected in the statutes that authorize courts to make and

modify child support awards demonstrate that the legislature

did not intend for ORS 107.104 or ORS 107.135(15) to apply

to terms of marital settlement agreements pertaining

to child support. We disagree. In our view, those statutes

anticipate the very issue that father raises: They provide

that courts should enforce marital settlement agreements

“to the fullest extent possible, except when to do so would

violate the law or would clearly contravene public policy.”

(Emphasis added.) The legislature clearly understood

and provided that, in the event of a conflict between the

enforcement statutes and the public policies evident in

other statutes, the enforcement statutes must yield. By

broadly instructing courts to enforce the “terms” of marital

settlement agreements subject to certain exceptions, the

legislature expressed its intent to make that instruction

applicable to all of the terms of such agreements, except

those falling within the specified exceptions.19

We proceed, therefore, to father’s argument that

agreements not to seek modification of child support always

fall within the statutory exception because the enforcement

of such agreements necessarily contravenes public policy.

Father contends that that is so because nonmodification

agreements interfere with the court’s ability to make child

“(a)  Set aside, alter or modify any portion of the judgment that provides for

the * * * support and welfare of the minor children and the children attending

school * * *.”

19

Father also proffers legislative history in support of his argument. We

do not find that material—an excerpt from the legislative discussion of House

Bill (HB) 2494 (ultimately enacted as ORS 107.104 and ORS 107.135(15)) in

which Representative Charlie Ringo stated that the bill would not affect “the

ability to modify support or to enforce payment of child support”—to be helpful.

Representative Ringo appears to have made that statement in response to a

question concerning the reach of Webber v. Olsen, 330 Or 189, 998 P2d 666 (2000),

the case that the legislature intended to overturn in enacting ORS 107.104 and

ORS 107.135(15). Rather than suggesting that HB 2494 would not reach child

support obligations, Representative Ringo seems to have been clarifying that the

contractual remedies that the legislature intended to authorize would not affect

parents’ ability to seek modification or enforcement of child support obligations

through traditional judicial remedies.

460 Matar and Harake

support determinations based on children’s best interests

and because such agreements prevent parents from

pursuing their right to seek child support modification

based on changes in circumstances. It appears that father

is making two interrelated points, although he does not

clearly distinguish between them: First, enforcement of

parents’ nonmodification agreements would deprive the

court of its statutory authority to modify child support

arrangements; and second, even if the court retains that

authority, enforcement of nonmodification agreements

would otherwise “interfere” with the application of the child

support statutes and thus with the state’s role in protecting

the interests of children.

Father’s first point is easily refuted: Parties simply

do not have the power to deprive the court of its authority

to modify child support where that authority is statutorily

granted. See McDonnal, 293 Or at 779 (property settlement

agreement may not preclude court’s statutory power to

modify spousal support; courts give effect to settlement

agreements where they do not conflict with statutory powers

of court). That does not answer the question, however,

whether parties may agree to refrain from requesting that a

court exercise its statutory authority to modify child support.

A contractual provision by which a party agrees not to seek

judicial action does not deprive a court of its authority;

rather, it waives the party’s right to seek the court’s exercise

of that authority. See McInnis and McInnis, 199 Or App 223,

235-36, 110 P3d 639 (2005) (parties’ waiver of their right to

seek modification of spousal support “has nothing to do with

the authority of the court; rather, it involves only whether

the parties may invoke [the court’s authority]”).

In making the more correctly focused point that

enforcement of a party’s waiver of the right to seek child

support modification violates public policy, father raises

an important distinction between child support terms and

other terms of marital settlement agreements. For instance,

an agreement not to seek modification of spousal support is

an agreement between spouses that affects only the spouses

themselves. An agreement not to seek modification of child

support, however, also may affect the rights of the child.

As explained, Oregon’s child support statutes are carefully

Cite as 353 Or 446 (2013) 461

crafted to ensure that child support is awarded in an amount

that will provide for a child’s needs, and those statutes

permit courts and agencies to adjust that amount when

circumstances change. The question father raises is whether

a parent’s agreement not to seek modification of child

support even where a substantial change in circumstances

has occurred necessarily contravenes the policies evident in

that scheme.

For three reasons, we conclude that it does not.

First, just as parents’ agreements cannot deprive courts of

statutory authority, a parent’s waiver of the right to seek

modification cannot affect either the child’s right to seek an

appropriate level of child support or the state’s authority

to act on behalf of a child. As noted, ORS 109.100 and

ORS 25.287(1) authorize both a child and the state to seek

modification of parents’ child support obligations, regardless

of parents’ willingness to do so.

Second, although Oregon law permits parents to

seek modification of child support when circumstances

change, it does not require them to do so. As noted, ORS

25.270 and ORS 25.280 require that when child support is set,

whether originally or on modification, the level of support be

determined in accordance with the Child Support Formula

and the rebuttal factors. However, neither party argues that

a parent who becomes aware of a change in circumstances

that would permit that parent to seek modification of child

support must do so, and we are not aware of any such

requirement. If public policy permits a parent to forego his

or her statutory right to seek modification at the time that a

change in circumstances arises, then public policy also may

permit a parent to anticipate those circumstances and, for

consideration and in the absence of fraud or duress, make

an advance decision to forego that statutory right.

Third, and most importantly, ORS 107.104 and

ORS 107.135(15) specifically provide that parents’ marital

settlement agreements will not be enforceable when

enforcement would contravene public policy. ORS 107.104

(providing that it is the policy of the state “[f]or courts

to enforce the terms of settlements *  * except when to

*

do so would violate the law or would clearly contravene

462 Matar and Harake

public policy” (emphasis added)); ORS 107.135(15)

(same). Therefore, when a party seeks enforcement of a

nonmodification agreement, those statutes permit a court

to consider whether enforcement of that agreement would

violate public policy, given the circumstances that exist at

that time. Should circumstances change, a nonmodification

agreement does not necessarily tie the hands of the parties

or the court; if a parent can establish that enforcement of

the agreement would contravene public policy, the parent

may seek, and a court may order, modification of a parent’s

child support obligation. We conclude that ORS 107.104

and ORS 107.135(15) recognize that the enforcement of

nonmodification agreements may, but does not necessarily,

contravene public policy. Courts must make that deter-

mination on a case-by-case basis.

Father’s final argument is that, in the circumstance

in which there has been a substantial change in a parent’s

economic circumstances such that enforcement of a

stipulated child support award would require the parent to

pay child support in excess of the amount required by the

Child Support Formula, enforcement of a nonmodification

agreement necessarily contravenes the public policies

evident in the state’s adoption of that formula. In so arguing,

father fails to grapple with the fact that Oregon law neither

requires a parent to seek modification of child support when

circumstances have changed nor precludes a parent from

waiving the right to do so. Moreover, father misunderstands

the purpose of the Child Support Formula and how it is

applied.

Although the Child Support Formula establishes

a presumptively correct child support award, a court is

permitted to consider rebuttal factors and award child

support that varies from the formula’s prescription to

ensure that the award is not “unfair” or “inappropriate.”

ORS 25.280. A party’s agreement to pay a specified amount

of support in consideration for property, debt, or financial

awards is one of the factors that a court may consider in

deciding whether the presumptively correct amount has

been rebutted.20 Further, the Oregon Administrative Rules

20

OAR 137-050-0760(1)(l) (listing as a rebuttal factor “[f]indings in a

judgment, order, decree or settlement agreement that the existing support award

Cite as 353 Or 446 (2013) 463

specifically authorize parental agreements that deviate from

the presumptively correct amount when the agreed amount

is within 10 percent of the presumptively correct amount.21

The fact that a nonmodification provision may prevent a party

from seeking a reduction in support to the presumptively

correct amount under the Child Support Formula does not

necessarily mean that a previously stipulated, higher child

support award is not fair or appropriate once such factors

are considered.

More importantly, such an outcome does not per se

contravene public policy. As noted, Oregon’s child support

statutes, including the Child Support Formula and rebuttal

factors, are designed to protect children and provide for

their needs. Thus, evidence that, under that formula and

considering those factors, a stipulated child support award

is insufficient to meet a child’s needs may demonstrate that

enforcement of an agreement not to seek an increase in the

stipulated award contravenes public policy. In this case,

however, father did not demonstrate that the same result

pertained, nor did he posit any other public policy that

would preclude enforcement of the stipulated child support

award.

When the parties agreed to dissolve their marriage,

they agreed that father would pay child support at a level that

exceeded the presumptively correct amount under the Child

Support Formula by $8 per month. The parties also agreed

that father would not seek to reduce his support obligation

due to a change in his income. The parties’ nonmodification

is or was made in consideration of other property, debt or financial awards, and

those findings remain relevant”).

21

OAR 137-050-0765 provides, in part:

“(2) The guideline support amount and rebuttal factors are intended to

meet the needs of most families. Likewise, the rebuttal factors *  * address

*

most situations in which the guideline amount is inappropriate. However,

there will be families for whom the support amount, even rebutted, is not

correct and who value the certainty of agreed support amounts.

“(3)  In consideration of foregoing hearing and appeal rights, the parties

may consent to a support amount that is within 10 percent of the amount

determined under the guideline[s] *  *. The order must be entered with the

*

written consent of the parties.

“(4)  An agreed support amount entered pursuant to this rule is presumed

to be just and appropriate within the meaning of ORS 25.280.”

464 Matar and Harake

provision was one term in a marital settlement agreement

that addressed a broad range of negotiated provisions. When

father later sought modification, he contended that his

circumstances had changed such that continued payment of

that previously stipulated amount of support would result

in a child support obligation that was higher, not lower, than

the presumptively correct amount under the Child Support

Formula. Thus, father understandably did not argue that

enforcement of the obligation to pay the stipulated amount

of child support failed to meet the children’s needs, nor did

he identify any other policy served by the Child Support

Formula and violated by enforcement of the stipulated

support award. We conclude that the trial court did not

err in enforcing the parties’ nonmodification agreement in

accordance with ORS 107.104 and ORS 107.135(15).

The decision of the Court of Appeals and the

judgment of the circuit court are affirmed.