Harper, on which mother relies, does not hold that that predicate can be ignored. Mother also relies on Hogue and Hogue, 115 Or. App. 697, 839 P.2d 760 (1992), on recons 118 Or. App. 89, 846 P.2d 422 (1993), for the proposition that a court may consider potential income. In Hogue, we refused to decrease the obligor father's child support payments after he changed employment from salesman to self-employment as a construction worker.
Although the phrase "sufficient for reconsideration" is not defined in the text of the statute, the well-established case law in this area provides the following contextual meaning: A support obligation will not necessarily be reduced even if the obligor's reduction in income was in good faith; in each case, the court must also consider the relative economic circumstances of the children and the obligor. Nelson and Nelson, 225 Or. 257, 357 P.2d 536 (1960); see also Hogue and Hogue, 115 Or. App. 697, 700, 839 P.2d 760 (1992), mod 118 Or. App. 89, 846 P.2d 422 (1993) ("[E]ven when an obligor acts in good faith, child support will not necessarily be modified. We evaluate the 'particulars of his changed circumstances, considering all the relevant factors,' as well as [the child's] welfare.") (citation omitted); Zorn and Zorn, 112 Or. App. 222, 224-25, 828 P.2d 481 (1992) (even assuming that father's voluntary reduction in income was in good faith, he provided no evidence concerning how a reduction would affect the child and therefore failed to show that the hardship to him outweighed the hardship to the child); Gay and Gay, 108 Or. App. 121, 125, 814 P.2d 543 (1991) ("[b]ecause the welfare of the child is the paramount consideration," voluntary reduction in obligor's income may justify reduction in child support if the change is made in good faith and the hardship to obligor, if decrease is not allowed, outweighs hardship to children that the reduction would cause); Jones and Jones, 106 Or. App. 264, 268, 8
The evidence shows that husband has the capacity to earn more than his present income.See Hogue and Hogue, 115 Or. App. 697, 700, 839 P.2d 760 (1992), mod 118 Or. App. 89, 846 P.2d 422 (1993) (although husband did not act in bad faith in changing jobs that reduced his earnings, support was not modified as he did not establish that his ability to pay had changed). Husband has a degree in engineering.
C88-0813-ST; CA A71349On respondent's motion for reconsideration filed November 20, 1993 Motion for reconsideration allowed; opinion ( 115 Or. App. 697, 839 P.2d 760 (1992)) modified and adhered to as modified; affirmed February 3, 1993 Appeal from Circuit Court, Washington County.
A number of our cases were decided under the applicable statutory language yet balanced the hardship to the parent if child support was not modified against the hardship modification that would cause the child in determining if there had been a substantial change in circumstances to justify modification. Those cases include DeNotta and DeNotta, 147 Or. App. 149, 935 P.2d 475 (1997); Hogue and Hogue, 115 Or. App. 697, 839 P.2d 760 (1992), modified on recons, 118 Or. App. 89, 846 P.2d 422 (1993); Zorn and Zorn, 112 Or. App. 222, 828 P.2d 481 (1992); Gay and Gay, 108 Or. App. 121, 814 P.2d 543 (1991); and Jones and Jones, 106 Or. App. 264, 806 P.2d 1170 (1991). Because the cases using equitable balancing to determine if there had been a substantial change in circumstances were all decided before Glithero, they should no longer be considered controlling on that issue.
We review for errors of law, and for whether there is substantial evidence that father acted wilfully and with bad intent. Hogue and Hogue, 115 Or. App. 697, 839 P.2d 760 (1992), mod 118 Or. App. 89, 846 P.2d 422 (1993). The agreement provides, in pertinent part:
Wife also assigns as error the trial court's failure to award her attorney fees. Under ORS 107.135(7), we review awards of attorney fees for abuse of discretion. See Hogue and Hogue, 115 Or. App. 697, 839 P.2d 760 (1992), mod 118 Or. App. 89, 846 P.2d 422 (1993). The trial court did not abuse its discretion in determining that wife was not entitled to an award of attorney fees.
Lastly, husband relies on Moreau and Moreau, 87 Or. App. 202, 741 P.2d 932 (1987), on recon 89 Or. App. 563, 749 P.2d 1232 (1988), and argues that the trial court's award of attorney fees to wife should be reversed, because wife failed to cite a statute or any other authority to support such an award. In Hogue and Hogue, 115 Or. App. 697, 839 P.2d 760, mod 118 Or. App. 89, 846 P.2d 422 (1993), we overruled our holding in Moreau, supra, and held: " 'It is not necessary to specify the statutory basis of a request for fees when the facts asserted would provide a basis for an award of fees, the parties have fairly been alerted that attorney fees would be sought and no prejudice would result.