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Agreements to Modify Child Support: The Matar Case

In April, the Oregon Supreme Court gave its opinion in a case called Matar and Harake. The court denied modification of a child support award because the mother and father had previously agreed in their divorce judgment that the child support would not be modifiable. Generally speaking, when financial circumstances change, the support provisions of a divorce judgment can be changed to fit the new circumstances. What the Matar parents did was to waive their rights to seek modification, even if circumstances changed in the future.

Agreements in contemplation of divorce have a long history of being honored in Oregon. The Supreme Court announced the modern formulation of the rule in its 1982 decision in McDonnall and McDonnall: "Agreements made in anticipation of a dissolution are generally enforceable given the circumstances of the case." Today, marital settlement agreements are a key component of any divorce lawyer's toolkit. Precise figures are unavailable, but most attorneys estimate that 85 or 90 percent of all domestic relations cases are resolved by agreement. Even the Oregon Legislature has gotten in on the action, passing statutes in 2001 that made explicit Oregon's favorable treatment of marital agreements.

However, agreements that intrude on the court's authority are forbidden. Thus, in Heinonen and Heinonen (2000), the Oregon Court of Appeals invalidated an agreement by the mother and father to delegate decision-making authority concerning their children's custody status to a person other than a judge. But for the most part, Oregon courts have been remarkably willing to let the parties strike their own compromises, even in circumstances where an agreement effectively limits the court's involvement in other decisions about the dissolution. Matar represents perhaps the furthest reach of this principle to date.

The decision in Matar was anticipated by the Court of Appeals' McInnis and McInnis decision in 2005. There, the parties agreed that the husband's spousal support obligation would not be modifiable in the future, even if circumstances changed. The court decided the case based upon the principle of waiver. The court's power to modify was not changed by the agreement; the parties simply agreed never to file a motion to modify. That waiver of the right to petition the court is what the Court of Appeals upheld.

McInnis settled after the Court of Appeals' decision, so the Supreme Court never got a chance to weigh in on the question. Matar provided that chance, and the Supreme Court adopted the Court of Appeals' McInnis rationale completely. Matar was the more surprising result because it dealt with child support and not spousal support. Much like child custody questions, child support has long been regarded as the exclusive province of the court. But the Matar court had no trouble reaching the conclusion that the father and mother had waived their right to petition the court and thus that the agreement was enforceable.

These decisions raise the question of what happens if the support, for example, becomes not payable because of the disability of the support obligor; or, conversely, if it becomes absolutely insufficient because of a medical condition of the recipient or child, requiring expensive treatment. The legislature has provided a "public policy" exception that should apply to allow relief in such specific circumstances. But the courts have so far been unwilling to find a public policy violation based on the possibility that such circumstances might arise.

Finally, it is important to note that, in the case of child support, the District Attorney and the child him- or herself retain independent rights to seek child support that are not affected by any agreement the parents may make between themselves. In most circumstances, though, agreements to waive support modifications appear here to stay.

Written by Mark Johnson Roberts, Of Counsel.