What Do You Have to Prove in a Modification or Enforcement Case?

We sit down with Pacific Cascade Legal's Partner, Will Jones, to discuss what types of changes in circumstances or violations need to proven in a modification or enforcement case.

If you would like to speak with one of our attorneys, please call our office at (503) 227-0200, or visit our website at https://www.pacificcascadelegal.com.

Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.

Transcript

Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.

Steve Altishin  0:32  
I'm Steve Altishin, Director of Client Partnerships at Pacific Cascade Legal. And I'm here today with our lead attorney, William Jones, to talk about what you have to prove in a modification or enforcement case. Well, how're you doing today?

Will Jones  0:45  
Not too bad. Another nice day here in the Pacific Northwest. Let's talk about modifying some stuff!

Steve Altishin  0:51  
Talk about modifying stuff and enforcing stuff. So let's kind of run through the enforcement. When can enforcement come in on a family case--on a divorce, on a custody, you know, change of custody case--when can the enforcement of the court actually be used? What has to happen? Who has to do what to get that to happen?

Will Jones  1:19  
So I think it's probably wise to unpack things just a little bit to get to something that is enforceable. So that creates its own kind of trick. So two peoples they have their own married, they have a kid and they're doing whatever, and they've never been to court, but their dads getting every other weekend and everything's okay. Now dad isn't getting his weekend, for some reason. There's nothing there. That's enforceable. There are a few things we can do to try to get something that's enforceable. But the court hasn't spoken. There is no general judgment, there is no temporary order, there's nothing. So if he goes to court and says, I've been getting every other weekend, the court goes, Okay, I don't have anything to enforce. There's no court order here for me to possibly do anything with. Now assuming we have an order, not everybody follows them, which is kind of bad. But that's where your enforcement stuff happens. So the first thing you have to know about specifically here in Oregon and Washington as well, but Oregon specifically, the court isn't monitoring this stuff. They're not going Hey, are you getting your parenting time? They don't know. Right? And if you're not going to complain about or you're not going to take any action, the courts gonna go? Well, I guess everything's fine. And even if it's not, nobody's told me about it. So it's all okay. If you have an order, and let's say we're dealing with parenting time, it makes somewhat of a difference if you have custody or don't have custody. So if somebody isn't giving you your parenting time, and you have custody, in your what's called, used to be a writ of assistance. Now, it's an order of assistance, where basically you go to court and say, Look, I'm the custodial parent, and they're withholding the kids from me during my parenting time, order of assistance gets issued, it goes to the sheriff, the sheriff will go and get the kid and bring the kid back. If you're either parent in that situation, who would be great if you got, say, a temporary mercy custody order, if that's the problem that's been happening here, because there's not a whole lot of benefit to a child to having a stranger Sheriff show up, put the lights on, and showing them say a six year old in the back of a police car to take him to mom. That's not a good thing for kids. If it's the non custodial parent who's not getting their parenting time, they have to file what's called a parenting time enforcement action. Hearings are generally guaranteed I believe, within 21 days, so they file an enforcement get served on the other party at hearings had was there a willful violation of parenting time, if there was they can get makeup, parenting time, all kinds of relief in there. If a party is found to have violated parenting time, specifically, a couple times the court will book another hearing to determine if this parenting plan just needs to be changed. But every good parenting plan starts with this parenting plan is for parents who don't otherwise agree. It's a fallback plan. It's what's enforceable by the court. So what almost always happens is we have this nice parenting plan that we drafted, it's got every detail covered, and dad got a new job and now he works Wednesdays usually people can figure that out. But what I can't do is go back and enforce this new verbal agreement. So we always have that fallback that the court will actually enforce. So that's enforcement of parenting time. 

Steve Altishin  4:23  
The other issues I know that involve money--either support that's not being paid or debts that aren't paid. You know, you're gonna pay for this. Well, I'm not gonna pay for them.

Speaker 2  4:40  
That happens? No way! That happens a lot. So I think it's a little bit important that we define what the difference is between a judgment and not a judgment. That is a very big demarcation. Child support spousal support once extended judgment that's been signed off by a judge once a judge signs off that these monies are owed, that is a different debt than, say the debt you owe to visa. If you don't pay your visa bill, they're going to call you, they're going to send you nasty letters, they're going to report you to the credit agency. But they can't take anything from you. They can just annoy you. But they have to do is they have to go to court and sue you assuming that they win, which visa almost always does, because they keep pretty good records with this stuff. Once a judge says now this is owed, and the court has signed off on it, now you get into debtor creditor remedies that can be liens on houses, foreclosures, on houses, wage withholding, garnishments bank accounts, you could conceptually do a little clever personal property, but that's usually more expensive than it's worth. But now you have all these remedies. Oftentimes, what we do is we'll run child support, the DOJ will also do spousal if it's combined with child support, but they don't do spousal alone, and let them enforce it, enforce it, they'll usually do wage withholding orders, which is something we can do in the firm as well. But if it's just spousal, they won't help you. They're really interested in child support, specifically, if there's some state benefit attached to it. So now you're talking about wage goes to the employer, the employer then has to deduct that amount and send it over either to child support or to you, depending on how support is being paid. So once you have the judgment, now you have the ability to basically pull things, assuming you can find it. It's not an a judgment. Good luck. You haven't sued anybody, you don't have these remedies yet. Now, if you have, say, a disillusion judgment, where say there's a joint visa, and it says husband is going to pay the joint visa, court judgment says husband is going to pay that, guess what visa doesn't care, it's a joint account, we both signed up for the account, and visa isn't going to listen to the court and say, Oh, husband supposed to pay this will leave the wife alone. They're not going to do that. Their contract is between the two parties and visa not with the court. So husband doesn't pay the visa visa calls wife wife pays the visa. Now wife has to take husband to court and say, Hey, you're in contempt, because you didn't pay the visa, as it says in this judge. So her remedy is against husband and trying to get the court to force husband to pay her. Right. So joint, that's all that stuff. always tricky. But the relief is against husband visa is not going to list.

Steve Altishin  7:25  
So let's now talk about modifications, then the judgment. Like you said, it has a lot of very specific things it says and what it says is literally the law. But that can be changed at times later on. How does that go about? What kind of things can you change from a divorce decree or a custody decree? And what can't you change?

Will Jones  7:53  
Assuming we're dealing with a divorce, which is very similar to unmarried parents except two of the big five are gone. So five things that the court is going to decide for you if you're getting divorce, custody, parenting time child support spousal support property division, if you're not married, you don't have spousal support, you don't have property division, custody, parenting time child support. So the judgment itself is modifiable on four of those. The fifth one, which is property division is non modifiable, right? You can't do anything about it. There is a provision in Oregon law that allows you to basically reopen the case, if you need to, for an asset that was either unintentionally or intentionally omitted, but it only opens it to that asset. So you didn't disclose retirement account judgment saying I found out about it later. Okay, let me reopen this because that should have been deposited or at least considered, but property divisions done. So let's deal with the money parts first, right child support and spousal support. Child Support and spousal support are modifiable, anytime there's been a substantial and unanticipated change in financial circumstances. So two parts there, well, three, but two that are really relevant, substantial, what is it? Is it big enough to make any difference? unanticipated? Right. So if your judgment says, Look, we expect this person to make $200,000 Next year, and they make $200,000 Next year, that's anticipated. Right? We thought that was going to happen and look it did. We end up in a lot of modification cases where it's I'm retiring, I want my spousal support to be modified or terminated. Well, was it anticipated that you would retire? What's your judgment say? Right. And there's a lot of argument that we deal with with what should be in the judgment, because we're looking at modifications down the road. It is anticipated that husband will retire at age 65. Well, now it says so in the judgment, we plan for that, or the judgment could say it will be changed in circumstances sufficient to modify this award when the husband retires. Now, we've set up the judgment to where we know we're going to modify it that substantial, unanticipated change in financial circumstances. Same thing goes with child support. Although if you're working with the DOJ every two or three years, they're just going to review the child's right? They're gonna ask everybody for him income information, and they'll deal with a modification. If they're doing enforcement of the old board. Not all awards go to the DOJ, though some people just pay them voluntarily not a big deal. If somebody wants to modify support, they have to file a motion with the court saying why served on the other party generally hearing has had you plead your case and say, this is kind of what's going on here. This is why it should be modified. So spousal is a whole lot more tricky to modify the child support, because child support is a calculation that goes through the Oregon State child support calculator tells you what the numbers should be pretty square that way. Spousal Support is way more accurate. What's fair to do, what's happened with the peep? Do we expect this person to continue working? What did somebody get a traumatic brain injury and can no longer work? What are we trying to do have custody and parenting time? Because we're not talking about money. We're talking about kids, parenting time and custody fall under two different headings, but roughly the same concept, you have to have a substantial change in circumstances in order to modify custody, and it has to be in the best interest of the child. Right? So there's that first substantial change hurdle. Now what do we do for the kid, parenting time, just best interest of the child? Is this what's best for this kid, there is no hurdle to overcome, it doesn't have to be a substantial change, it just has to be what's best for this kid. So two different layers there. Conceptually, it's an eight factor test to determine parenting time. But the problem is, is the legislature is over there voting on things and they come up with these weird tests, like who fosters a loving and caring relationship with a noncustodial parent? What that really means in practice is who's being nice and helping. So best interest of the child is anyone who obeys the kid who reads to him, you know, what's a convenient schedule here, parents live six hours apart, is it really a good idea to have midweek parenting time, we need to put the kid in the car for 12 hours. So what's best for the kid is what will govern your parenting time custody, generally, it can be modified most of the time, that first hurdle is pretty big. And it's pretty difficult. And if you've watched some of the other stuff we've done, custody just doesn't have the teeth that people think it does. parenting time is what people really, really want. And that's when you see your kid and do things with your kid. Custody doesn't give you authority over the other parent or the ability to make basically any major cool decisions. You can't tell the other parent what to do. So what people really want is parent time. And that's just modified based on the best interests of the kid. So that can always be modified. 

Steve Altishin  12:36  
That brings to mind the question of time, time alone. I hear that, you know, well, it's been seven years, so it needs to change. I mean, time alone, can that just be a factor in going in and saying, Look, we haven't done our child support for six years, or our parenting plan for 11 years, is that enough? Does that get to the hurdle? 

Speaker 2  13:10  
Not really, it's kind of one of those if it's not broke, don't fix it type of situations. If everything's working fine under the judgment, and everybody's happy with it, there's no reason to change it. Now, if you look at child support, and you go, Oh, I just lost my job. Yeah, maybe we need to talk about modifying your child support, because clearly you have no income and no ability to pay, the calculator is gonna get you a different number. That's why at least on the monetary side, substantial and unanticipated change in financial circumstances. Right. So it's not just oh, I got my 3% Raise. Got it. So like, yeah, it's kind of anticipated. And it's not substantial. Overall, it's always nice to get a raise. But the courts gonna go, why are you taking the court's time, so you can an extra 50 cents of child support at this point, it's not really worth our time, come back when it's worth our time. So time alone isn't sufficient. But I see a lot of cases. I've had a couple of consults on this this week, where it's on the noncustodial dad, and I haven't read on the weekend, but my kid just turned 16. And he's a boy. And I take him to all his sports stuff. And he's super independent. And I think he needs more downtime, right? Because kids change. That's kind of what they do. Thankfully, sometimes, at least with mine, I'm glad they changed sometimes. Sometimes it's not always possible. They're very helpful. But things do change. Kids get into different schools, they end up going to private school that are about to go to college, or they want to do an exchange program. That's just kind of the way the world works. So there's always that ability to modify whenever it's in the best interest of the kid.

Steve Altishin  14:40  
Last question, and because again, it gets asked. And so I kind of want to make this clear to people: who can modify or even really, who can enforce a decree?

Will Jones  14:56  
So it's pretty important to know who the parties are, right, which is something that kind of kind of gets lost in the shuffle a little bit. So if you look at any court paper, there's going to be these people's names in the caption. Those are the only people that that really matters to the court can't tell visa what to do because the visa wasn't in court. They're not there for this. Right. So it's only the parties who are bound by the agreement a little tricky, because once transport services, the DOJ gets involved, they basically take a support order, and they enforce it for you. But they're enforcing it for you. So it feels like there's a third party, but that really is either party can move to modify. What we get every now and then is a call from grandma who's like, I don't like this for my kid will will have the kickoff. Whoever is bound by the agreement, or the people who can enforce it modified, right? So usually, it's mom or dad, if you're talking about family law stuff. So they can move to modify whatever they need to basically whenever they want, you're going to want to talk to an attorney if you have some manner of question, because we do get a lot of people who call in and we're like, oh, my car payment went up. because interest rates are going up, can I get more spousal support? Probably not. Right? It seems like a logical solution to go, my bills are a little bit higher. Can I do that? But you don't want to spend a whole bunch of money and watch time when something's not gonna work. Other times, it's, you know, I've been furloughed for two weeks, can I modify? What we're not going to get you in and out of the system by the time you come back to work? So maybe that's not worth your time to do that. I got fired and I can't find a new job. Okay, let's get this train running quick because specifically child and spousal support every month when they become due. Those are judgments against the party you're supposed to pay. They're not modifiable once they're due and payable. So they're in there, you lose your job, Trump's port clicks, clicks, clicks, month, month, month, I can't do anything to go back and go, Oh, we don't want to do this. You need to file your modification when that happen? If not, those are obligations that we can get rid of.

Steve Altishin  17:02  
Yep, no retro modifications. Well, thank you again, Will. Thank you for joining us. This was great talking about what to know about modifications and enforcement in a family law cases, these are questions we get all the time. This is just great information. So thank you for doing this.

Speaker 2  17:20  
Happy to help Steve. If anybody needs anything from us, any questions we can answer, you know where to find us.

Steve Altishin  17:26  
There you go. And everyone, thank you for joining us today as well. Anyone with further questions, please feel free to contact our firm, we can get you connected with an attorney who can help you. Stay safe, stay happy, be well.

Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Pacific Cascade Legal, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at pacificcascadelegal.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.