Divorce – Case Law Update – Child Support Modification

free-vector-scales-of-justice_099380_Scales_of_justiceIn Handley and Handley, 282 Or App 255 (2016), the Oregon Court of Appeals issued an opinion regarding modifying child support when the minor child voluntarily began living full-time with one parent.

Pursuant to the underlying divorce judgment (and subsequent supplements to the judgment), Mother had legal custody and 59 percent of the parenting time (leaving 41% for Father).  Because her income was higher than Father’s, Mother paid father child support of $186 per month.  In 2014, Mother and Father both filed motions to modify the parenting aspects of the underlying judgments.  The parties reached an agreement that there would be no set parenting plan and the child would “be entitled to determine if and when she wants to spend time with either parent,” and that parent would have sole legal and physical custody.  Id. at 257.  Since the child had been living with Father exclusively by her own wishes for several months at the point the agreement was reached, the agreement provided that, at that time, Father had sole legal and physical custody.  The only matter left for the court to determine was whether child support would be modified to reflect the fact that Father had sole custody at the time the agreement was made.

The trial court found that there had not been a “substantial change of circumstances” (see ORS 107.135(3)(a)) because there was no set parenting plan in place to determine how much time the child would spend with each parent.  Therefore, the trial court denied Father’s request to increase his child support award.

The Oregon Court of Appeals reversed the trial court’s denial of Father’s request to modify his child support upward.  The Court of Appeals noted that, in fact, the time the child was living with Father had more than doubled (from 41% to 100%), and that there was no indication that the child was going to move out:  “The possibility that she might [move out of Father’s home] at some unspecified point in the future was not a proper basis for declining to reconsider mother’s child support obligation in light of the fact that the child had been living with father on a full-time basis and was continuing to do so.”  Handley at 258.

The child support issue was reversed and remanded to the trial court to determine the proper amount of child support that would be awarded to Father.

Divorce – Case Law Update – Prenuptial Agreements

free-vector-scales-of-justice_099380_Scales_of_justiceOn September 21, 2016, the Oregon Court of Appeals issued an opinion regarding the enforceability of prenuptial agreements.  In Porter and Porter, 281 Or App 169 (2016), the trial court found that the prenuptial agreement was unenforceable and Husband appealed.  The Court of Appeals reviewed the relevant factors to determine whether a prenuptial agreement is enforceable, which are as follows:

1.  the proximity of the document’s presentation to the time of the wedding;

2.  any surprise in its presentation;

3.  the presence or absence of legal counsel;

4.  inequality of bargaining power;

5.  disclosure of assets;

6.  understanding of rights waived; and

7.  awareness of the intent of the document.

In the underlying case, the evidence established that before the parties discussed marriage, Husband, who had been married twice before, told Wife that he was having his attorney prepare a prenuptial agreement in the event that the parties decided to get married. Wife told Husband she had never heard of a prenuptial agreement and Husband explained that it is something people sign before they get married and he wanted to make sure Wife was not in the relationship for Husband’s money.

The parties did not discuss the prenup further until December 24, 2002.  At that time, the parties were running errands and Husband pulled up to a bank, explaining that they were going to sign the prenup.  Husband presented Wife with the document to sign and notarize.  That was the first time Wife saw the agreement or the list of Husband’s assets attached, and she did not understand much of the agreement.  She trusted Husband and believed, based on Husband’s explanation of prenuptial agreements, that the document was “rather insignificant.”  After the agreement was signed, Husband sent a copy to his attorney.  The parties got engaged that evening and were married four months later.

An appeal, Husband correctly noted that the party seeking to negate the prenuptial agreement bears the burden of proving it was not executed voluntarily or was unconscionable.  ORS 108.725.  Nevertheless, the Court of Appeals found that the agreement in this case was not executed voluntarily.  The Court explained that the following factors contributed to its decision:

1.  Wife was less sophisticated than Husband in matters of this nature.  She was born in Germany and, while she was fluent in English, it was not her first language.  Further, she lacked personal experience with divorces in the United States.

2.  The parties never discussed the specific terms of the agreement.

3.  Wife did not understand the agreement’s legal significance or practical effect.

4.  Wife did not have sufficient time at the signing to become educated as to the effect of the agreement.

Based on the above, the Court of Appeals affirmed the trial court’s ruling that the prenuptial agreement was unenforceable.

Family Law – Case Law Update – Restraining Orders

free-vector-scales-of-justice_099380_Scales_of_justiceOn October 5, 2016, the Oregon Court of Appeals issued an opinion regarding the findings necessary to uphold a temporary restraining order.  In  TK v. Stutzman, 281 Or App 388 (2016), the Court reviewed the validity of a temporary restraining order issued under the Family Abuse Prevention Act (FAPA).  To support such an order, a petitioner must establish that (1) respondent had abused petitioner within 180 days before the petition was filed, (2) there was an imminent danger of further abuse to petitioner, and (3) respondent presented a credible threat to the physical safety of petitioner.  ORS 107.718(1).

In the underlying case, Petitioner was Respondent’s 28-year-old niece.  The two were estranged and Respondent believed Petitioner had a drug problem.  The event that led to the restraining order took place after a church service attended by both parties and Petitioner’s fiancee.  Petitioner testified that after the service Respondent approached her and accused her of using drugs and being involved with pornography.  Petitioner began to walk away and Respondent grabbed her by the arm.  Petitioner pulled away and continued walking.  Respondent then stood in front of Petitioner’s car door in the parking lot and told Petitioner “If we weren’t at church, you’d be dead right now.”  Petitioner pushed Respondent out of the way and drove the car out of the parking lot while Respondent continued to yell at her.  Petitioner testified that she was “very fearful for [her] life.”  According to Petitioner, three months prior to this incident, Respondent had come onto Petitioner’s property and then left when Petitioner walked outside.

The Court of Appeals expressed some reservation regarding whether the incident after the church service constituted “abuse,” but focused its inquiry on whether (1) Petitioner was in imminent danger of further abuse and (2) Respondent represented a credible threat to Petitioner’s physical safety.  In holding that those two elements were not met, the Court noted that “[a] petitioner’s subjective fear is insufficient to support a FAPA restraining order.”  The Court further explained that this case involved “an isolated incident of aggressive, primarily verbal, conduct;” there was no evidence that Respondent made any effort to harm Petitioner during the incident; and there was no evidence that Respondent had ever harmed, or attempted to harm, Petitioner or anyone else.  The Court concluded that “although he church incident caused petitioner fear, in context, it was insufficient to show that respondent posed an imminent danger and credible threat to petitioner’s physical safety.”

The Court of Appeals reversed the trial court’s continuance of the temporary restraining order.


Criminal Law – Case Law Update – Voluntary Consent

free-vector-scales-of-justice_099380_Scales_of_justiceOn May 25, 2016, the Oregon Court of Appeals issued an opinion regarding the scope of voluntary consent for police to search personal items.  In State v. Blair, 278 Or App 512 (2016), Defendant appealed his conviction for possession of hallucinogenic mushrooms, a violation of ORS 475.752(3)(a).  The officers in the underlying case responded to reports of armed suspects chasing a man in a park.  Upon their arrival, the officers found Defendant, the alleged victim of the attack, who appeared unkempt, dirty, and scratched.  The officers observed some signs of intoxication in Defendant.  Defendant retrieved a nearby backpack and one of the officers asked if he could search it.  Defendant responded “yeah, go ahead.”  Inside the backpack, the officer found a knotted, opaque grocery bag.  Inside the grocery bag, the officer found a ziploc bag containing hallucinogenic mushrooms.  Defendant was charged with and convicted of possession of a controlled substance.

Defendant appealed, arguing that he did not give consent for the officer to search the grocery bag within his backpack.  The Court of Appeals agreed.  The Court found that, because the officer did not say anything that would lead a reasonable person to believe that he was looking for controlled substances or weapons, Defendant did not give consent to search the grocery bag.  The Court contrasted the facts of this case with a case in which officers searched a car for controlled substances because the car smelled of marijuana and another officer had found drug paraphernalia in that defendant’s home.  In that case, a reasonable person in the defendant’s position would have understood the request to consent to a search to be for the purposes of discovering drugs or drug paraphernalia; however, in Blair, the context of the officers’ interactions with Defendant did not suggest they would be looking for drugs or weapons.  The trial court’s decision to allow the controlled substances into evidence was reversed.

Criminal Law – Case Law Update – Illegal Searches

free-vector-scales-of-justice_099380_Scales_of_justiceOn January 27, 2016, the Oregon Court of Appeals issued an opinion regarding the admissibility of a breath test result after unlawful questioning by police in a DUI case.  In State v. Swan, 276 Or App 192 (2016), Defendant was arrested on suspicion of DUI after a traffic crash.  Defendant invoked his right to have an attorney present during questioning by the police, after which police were not permitted to “interrogate” him until he had an attorney present or waived his invocation.

In this case, however, the officer conducted a “DUI interview” after Defendant had invoked his right to have counsel present, asking Defendant about his alcohol consumption and driving.  At trial, the evidence obtained from the DUI interview was suppressed pursuant to a stipulation by the state, as the interview violated his constitutional right to have counsel present during questioning, but the breath test was not suppressed.  The issue on appeal was whether the officer’s subsequent request for Defendant to take a breath test, and the evidence obtained from the breath test, should have been suppressed due to the violation of Defendant’s rights.

At the outset, the Court noted that requesting a breath-test is not itself an “interrogation,” so the question was whether the breath-test evidence “derived from” the constitutional violation of conducting the DUI interview after Defendant invoked his right to counsel.  In determining whether evidence “derived from” the constitutional violation, the Court of Appeals examined four factors:  (1) “the nature of the violation”; (2) “the amount of time between the violation and any later statements”; (3) “whether the suspect remained in custody before making any later statements”; (4) “subsequent events that may have dissipated the taint of the earlier violation”; and (5) “the use that the state has made of the unwarned statements.”  State v. Jarnagin, 351 Or 703, 716-17 (2012).

After a review of these factors, the Court found that the breath test evidence did not derive from the constitutional violation.  The Court focused on several facts that supported this finding:  (1) The DUI interview was conducted in a non-coercive manner; (2) there was a short but significant break between the violation and the request for the breath test sufficient to break the causal chain between the two events; (3) Defendant had over 20 minutes to consult with an attorney and did not; (3) the officer twice read Defendant the “implied consent” information (which informs suspects of their options with regard to taking a breath test), and Defendant read the implied consent information himself a third time; and (4) the information gained from the illegal DUI interview did not prompt the request for a breath test, as the officer already had ample observations of intoxication.

Since the breath test did not “derive from” the illegally conducted DUI interview, the Court of Appeals affirmed the trial court’s decision not to suppress the breath test.



Divorce – Case Law Update – Child Support

free-vector-scales-of-justice_099380_Scales_of_justiceOn October 21, 2015, the Oregon Court of Appeals issued an opinion regarding how child support is calculated.  In Adams and Adams, 276 Or App 423 (2015), father was ordered to pay $805 per month in child support based on his monthly income at the time of trial of $4,885 as an instructor for the United States Army.

Subsequently, Father was discharged from his job and stopped paying child support, and remarried.  He moved to modify his child support obligation based on the fact that he had been discharged from his job and had been unable to find another job.  Unable to find work, Father borrowed $25,000 to start a CrossFit gym, but at the time of the hearing on the motion to modify child support, the gym was not generating income.  Father’s only income at that time was $400 per month for service in the National Guard.

At the hearing, Father also testified about his monthly personal and business expenses, which totaled $4,880.  Father testified that he had been able to meet those expenses by using his savings account, which was nearly empty.  At the time of the hearing, Father was being supported by his new wife, whose military disability benefits paid his expenses.

The trial court used Father’s expenses of $4,880 to set his new child support payments at $1,158.  Father appealed, arguing that the the trial court should have set his child support payments based on his actual or potential income, rather than his expenses.

The Court of Appeals agreed with Father.  Presumptive child support payments are calculated based on the requirements of the Oregon Administrative Rules (OAR 137-050-0700 to 137-050-0765) (Oregon provides a calculator to determine presumptive child support amounts under these rules here).  Under, OAR 137-050-0715, a parent’s income can include only the parent’s own actual or potential income (potential income may be used if it is greater than the actual income).  The Court of Appeals held that the trial court erred in relying on Father’s new wife’s income to determine Father’s income for the purposes of calculating the presumptive child support amount.  The case was reversed and remanded to the trial court for redetermination of Father’s child support obligation.

Criminal Law – Summary of Traffic Stop Law

BooksThe rights of citizens during traffic stops are often an issue in criminal cases, and are also frequently the topic of motions to suppress and appellate court opinions in Oregon.  Here I will describe the framework that law enforcement agents must work within while investigating people in during a traffic stop.

At the outset, there are a couple definitions that are necessary to understanding what officers can do during interactions with people:

  1. Probable cause – Exists when there is “a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.”  ORS 131.005(11).
  2. Reasonable suspicion – Exists if the officer subjectively suspects that an individual has committed, or is about to commit, a crime, and that belief is “objectively reasonable under the totality of the circumstances.”  State v. Ehly, 317 Or 66, 79, 854 P3d 421 (1993).

A traffic stop for the purpose of investigating a noncriminal traffic violation (such as speeding or run a red light) must be based on probable cause that the violation occurred.  Once any such violation is addressed – by writing a ticket, issuing a warning, etc. – the stop must be concluded, and the driver permitted to leave.  A noncriminal traffic stop may only be extended to investigate unrelated criminal conduct if the officer reasonably suspects that the person stopped has committed a crime or poses a threat to the officer’s safety.  State v. Steffens, 250 Or App 742, 747-48 (2012).  A law enforcement officer may not “extend the duration of a traffic stop by inquiring into unrelated matters” but may inquire into unrelated matters “during an unavoidable lull” in the processing of a traffic stop.  State v. Dennis, 250 Or App 732, 740 (2012).

In cases where a noncriminal traffic stop is extended to investigate potential criminal activity, the issue then becomes whether the officer had reasonable suspicion that the driver, or another person in the car, has committed, or is about to commit, a crime.  Whether there is reasonable suspicion depends on the “totality of the circumstances,” so each situation is decided on a case-by-case basis.  Below is a list of circumstances that the Oregon courts have determined are relevant to determining whether an officer had reasonable suspicion to extend a stop:

  1. Presence in a high drug activity area.  State v. Bertsch, 251 Or App 128, 134 (2012) (relevant, but not adequate on its own to give rise to reasonable suspicion).
  2. Immediate exit from the vehicle after the stop.  State v. McHaffie, 271 Or App 379, 386-87 (2015).
  3. Nervous and fidgety behavior, if it is consistent with the suspected crime.  State v. Holdorf, 355 Or 812, 814 (2014).
  4. Evidence of past drug use or conviction for prior related crime.  State v. Ehly, 317 Or 66, 79, 854 P3d 421 (1993) (relevant, but not adequate on its own to give rise to reasonable suspicion).
  5. Furtive (nervous, secretive) movements toward a place wear contraband could be hidden.  State v. McHaffie, 271 Or App 379, 386-87 (2015).
  6. Attempting to conceal items while checking to make sure the officer is not watching.  State v. Frias, 836 P2d 1367, 115 Or App 149 (1992)

This is a non-exhaustive list of factors the courts may consider when determining whether there was reasonable suspicion to extend a traffic stop.  An officer may consider these factors, or any other observation that, in his or her experience, suggests criminal activity, in developing reasonable suspicion.  Any single factor may not be sufficient on its own to create reasonable suspicion, but is relevant to determining whether reasonable suspicion exists under the “totality of the circumstances.”

Criminal Law – Case Law Update – Traffic Stops

free-vector-scales-of-justice_099380_Scales_of_justiceOn October 14, 2015, the Oregon Court of Appeals issued an opinion regarding a sheriff’s deputy’s extension of a traffic stop to question a defendant, which led to the discovery of heroin.  In State v. Huffman, 274 Or App 308 (2015), the deputy was patrolling a high drug-activity area in a marked patrol car.  The deputy observed Defendant driving in his car, which had a cracked front windshield, no front license plate, and a nonworking tail light.  The deputy initiated a traffic stop and Defendant pulled the car over, immediately exited the car, and began walking toward the patrol car.  The deputy exited the patrol car and instructed Defendant to get back in his car, which he did.

Upon approaching Defendant’s car, the deputy observed that Defendant appeared very nervous; he was visibly shaking and did not make eye contact with the deputy.  The deputy instructed defendant to keep his hands on the steering wheel for safety purposes, but throughout the stop Defendant was fidgety and made furtive movements with his hands towards the front pocket of his sweatshirt.

Upon questioning, Defendant indicated that he did not have insurance and that his driver’s license was suspended.  Using Defendant’s name and date of birth, the Deputy learned that Defendant was on probation for possession of heroin.  The deputy ordered a tow of Defendant’s car per agency policies.  Rather than completing the traffic citation, the deputy then continued to interview Defendant because he “believed there was something else going on with [Defendant] having to grab his sweatshirt.”  The deputy believed he had reasonable suspicion of criminal activity.  The deputy continued to question Defendant, who eventually admitted he had heroin and a syringe in his sweatshirt pocket.  Defendant consented to a search of his pocket and the deputy seized the heroin and placed Defendant under arrest.  Defendant was charged with possession of heroin and unlawful delivery of heroin.

Defendant filed a motion to suppress the heroin, arguing that the deputy unlawfully extended the traffic stop by questioning him about whether he had anything illegal in the car or on his person.  Defendant argued that those questions exceeded the scope of the traffic stop and amounted to a seizure without reasonable suspicion of criminal activity.  The trial court denied the motion to suppress, Defendant was convicted, and Defendant appealed to the Oregon Court of Appeals.

On appeal, the issue before the Court was whether any extension of the traffic stop was justified by reasonable suspicion that Defendant was committing a drug-related crime.  The Court of Appeals held that reasonable suspicion did exist, based on the following observations by the deputy:

  1. Defendant was driving in a high drug-activity area;
  2. Defendant left the car immediately after it was stopped, which the deputy testified was consistent with someone trying to hide something or flee;
  3. Defendant was nervous, visibly shaking, and would not maintain eye contact with the deputy;
  4. Defendant was on probation for possession of heroin; and
  5. Defendant would not keep his hands on the steering wheel when requested by the deputy and repeatedly made furtive movements towards his sweatshirt pocket.

The trial court’s denial of Defendant’s motion to suppress was affirmed.

For a more in-depth analysis of the law surrounding traffic stops that turn into criminal investigations, check out this summary of Traffic Stop Law.

Criminal Law – Case Law Update – Searches

free-vector-scales-of-justice_099380_Scales_of_justiceOn September 30, 2015, the Oregon Court of Appeals issued an opinion regarding the post-arrest search of a defendant’s pockets.  In State v. Castillo-Lima, 274 Or App 67 (2015), a police officer responded to a report of a fight outside a bar involving at least 7 people.  By the time the officer arrived, the fight had dispersed.

Later the same evening, however, the officer received a report from a witness that the people involved in the fight had returned to the bar.  The officer went with a police canine unit to the area identified by the witness and heard shouting nearby.  As he approached the area of the shouting, the officer saw Defendant, a man he recognized from earlier in the evening.  The officer told Defendant to “come here.”  Defendant responded that he “didn’t do anything.”  The officer announced that he was a police officer and instructed Defendant to get down on the ground.  Defendant refused, even after the officer told him to get down at least 10 times.  As the officer approached Defendant he told him to get down, or the police dog would bite him.  At that point, Defendant got on his knees and raised his hands above his head.  As he did so, the officer noticed the butt of a gun in Defendant’s pants.  The officer pulled Defendant to the ground, removed the gun, and threw it behind them.  In doing so, the officer realized the gun was not real, but a simulation of a real gun.

The officer called for backup, which arrived along with a witness to the earlier fight.  The witness indicated that Defendant was one of the people involved in the fight.  Defendant was taken into custody and his pockets were searched, revealing a bag of cocaine.

Before trial, Defendant moved to suppress the evidence of the cocaine found in his pockets.  The trial court denied the motion.  Defendant appealed, arguing that the officer was not justified in performing a search incident to his arrest because it would be unreasonable to believe he was carrying a weapon or means of escape, as the gun that was found was fake.  The Court of Appeals disagreed, finding that because the officer was called because of a fight and found Defendant, who was uncooperative, in a highly charged situation, searching Defendant’s pockets was a reasonable officer-safety measure.

The trial court’s rulings were affirmed.

Criminal Law – Case Law Update – Unlawful Possession of a Firearm

free-vector-scales-of-justice_099380_Scales_of_justiceOn September 17, 2015, the Oregon Supreme Court issued an opinion about what constitutes the crime of unlawful possession of a firearm under ORS 166.250.  In State v. Clemente-Perez, 357 Or 745 (2015), Defendant’s son and estranged wife went to Defendant’s house to pick up his son’s backpack.  During the visit, Defendant heard his wife’s cell phone ring and saw that another man had called her.  Angered, Defendant retrieved a handgun from an unlocked storage compartment underneath the back seat of his pickup truck and shot his wife’s cell phone.  He then placed the gun back in storage compartment in his truck and drove away in a different truck.

Defendant was charged with and convicted of criminal mischief under ORS 164.354 and unlawful possession of a firearm under ORS 166.250(1)(b), which prohibits the possession of “a handgun that is concealed and readily accessible to the person within any vehicle.”

On appeal, Defendant made two arguments regarding his conviction for unlawful possession of a firearm:

1.  That he was not “within any vehicle” because he was not “occupying” the vehicle when he accessed the gun; and

2.  That the “place of residence” exception under ORS 166.250(2)(b) should have applied because the truck was parked within the property lines of his residential property.

The Oregon Court of Appeals affirmed the trial court rulings and Defendant appealed to the Oregon Supreme Court.

As to the first argument, that Defendant was not “within any vehicle” when he reached in to retrieve the gun, the Supreme Court disagreed.  The Court held that a person is within the vehicle for the purposes of this crime “if the person, or some portion of the person’s body, is in the interior part of a vehicle at the time that he or she possesses a concealed, readily accessible handgun.”

The Supreme Court also disagreed with Defendant’s second argument regarding the “place of residence” exception.  Under this exception, a non-felon adult citizen of the United States may not be charged with unlawful possession of a handgun if the handgun is “within the persons place of residence or place of business.”  ORS 166.250(2)(b).  The Supreme Court held that a person’s “place of residence” is “the house or other structure in which a person lives – that is, a person’s residential structure.”  Since Defendant did not live in his truck, the exception did not apply.

The rulings of the trial court and Oregon Court of Appeals were affirmed.