In re the Marriage of Clifton
Docket: 92-11-135; CA A94033
Court: Court of Appeals of Oregon; July 16, 1997; Oregon; State Appellate Court
Mother appeals the modification of custody and child support from a dissolution judgment. The parties, married in 1981 and divorced in 1993, initially had joint custody of two children, with father paying $200 monthly in child support. Mother sought to terminate joint custody and adjust child support based on father’s income of approximately $10,000 per month. The trial court granted mother sole custody, altered the visitation schedule, and recalculated child support. On appeal, the sole issue is the trial court's calculation of child support under shared custody guidelines. The court initially found that father would have physical custody about 40% of the time; however, this was unsupported by evidence showing father would only have physical custody for approximately 30% of the time. The appellate court agreed with mother that the trial court erred in its calculations and remanded for recalculation of child support. Father argued that the trial court could consider time spent outside the established custody schedule, but the court rejected this claim, affirming that shared custody calculations should be based on overnight visits alone. The court noted that while father’s custody exceeds 25% of total overnights, the trial court did not apply OAR 137-50-450(12) to assess whether this should modify father’s support obligation. Consequently, the case is remanded for the trial court to reevaluate the application of this rule in determining child support. The decision has been reversed and remanded for further proceedings, with costs awarded to the mother. Shared physical custody is defined as a situation where one parent has custody no more than 65% of the time and the other parent at least 35%, established through written agreement or court order. When shared custody is in effect, child support calculations follow specific steps: 1. Calculate combined adjusted gross income. 2. Determine basic child support using OAR 137-50-490. 3. Multiply that amount by 1.50. 4. Assess the percentage of overnights the child spends with each parent. 5. Pro rate the basic child support based on the custody percentages. 6. Calculate total out-of-pocket expenses for health insurance, child care, and recurring medical costs for each parent. 7. Combine these expenses with the pro rated child support for each parent. 8. Calculate each parent's percentage contribution to the combined adjusted gross income. 9. Multiply the income percentage by the total support and costs/expenses assigned to the other parent to determine support amounts owed. 10. The court may choose to set out obligations by calculating the difference between the two amounts owed. 11. OAR 137-50-470 (minimum support) does not apply for shared custody situations. 12. If a parent with less than 35% custody shows they have over 25% of total overnights and contribute significantly to support, they may receive a credit against their obligation. The trial court file is lost, but sufficient information remains in the transcript and judgment regarding the father's custody. ORS 19.108 permits the appeal to proceed despite this issue. The correct application of OAR 137-50-450(12) has not been determined in this case for potential child support modification.