446 April 18, 2013 No. 17

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of the Marriage of

Lisa MATAR,

Respondent on Review,

and

STATE OF OREGON,

Petitioner below,

and

Azzam HARAKE,

Petitioner on Review.

(CC C032405DRC; CA A143331; SC S060064)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 8, 2012; resubmitted 

January 7, 2013.

Daniel S. Margolin, Stephens Margolin PC, Portland, 

argued the cause and filed the brief for petitioner on review.

Helen C. Tompkins, Portland, argued the cause and filed 

the brief for respondent on review.

WALTERS, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

______________

* Appeal from Washington County Circuit Court, Keith R. Raines, Judge. 246 

Or App 317, 270 P3d 257 (2011).
Cite as 353 Or 446 (2013) 447

Father filed a motion to show cause why his child support obligation should 

not be reduced based on an alleged reduction in his income, arguing that although 

the parties had agreed not to seek modification of their child support obligations 

in their stipulated judgment of dissolution, that agreement was unenforceable as 

contrary to public policy. The trial court found that the parties’ nonmodification 

agreement was enforceable because it neither divested the court of jurisdiction 

nor violated public policy. The Court of Appeals affirmed. Held: (1) ORS 107.104 

and ORS 107.135(15) are applicable to terms of marital settlement agreements 

pertaining to child support; (2) child support nonmodification agreements do not 

always fall within the public policy exception articulated in those statutes; and 

(3) where father did not demonstrate that the stipulated child support award was 

insufficient to meet his children’s needs or that enforcement of the agreement 

would otherwise violate public policy, the trial court did not err in enforcing the 

parties’ nonmodification agreement in accordance with ORS 107.104 and ORS 

107.135(15).

The decision of the Court of Appeals and the judgment of the circuit court are 

affirmed.
448 Matar and Harake

WALTERS, J.

In this domestic relations case, we decide that, 

pursuant to ORS 107.1041

 and ORS 107.135(15),2 a court 

may enforce an agreement between parents not to seek 

modification of the child support terms of a stipulated 

judgment of dissolution unless to do so would violate the 

law or contravene public policy. We also decide that, in this 

case, father did not demonstrate that enforcement of his 

nonmodification agreement with mother violated the law 

or contravened public policy. Consequently, we affirm the 

decision of the Court of Appeals and the judgment of the 

circuit court. Matar and Harake, 246 Or App 317, 270 P3d 

257 (2011).

I. FACTS AND PROCEDURAL HISTORY

The relevant facts are undisputed and are taken 

from the record. In February 2005, the parties stipulated 

to a judgment dissolving their marriage. At that time, the 

parties had been married for seven years and had two minor 

children, then ages four and six. The judgment provided 

that the parties would have joint legal custody of their 

children, with mother having primary physical custody and 

father having reasonable parenting time. It also required 

that father pay child support of $1,750 per month, which 

exceeded by $8 the presumptively correct amount indicated 

by application of the Oregon Child Support Guidelines 

Formula (Child Support Formula).3

 The judgment provided 

1 ORS 107.104(1) provides:

“It is the policy of this state:

“(a) To encourage the settlement of suits for marital annulment, 

dissolution or separation; and

“(b) For courts to enforce the terms of settlements described in subsection 

(2) of this section to the fullest extent possible, except when to do so would 

violate the law or would clearly contravene public policy.”

2 ORS 107.135(15) provides, in part:

“(a) It is the policy of this state:

“(A) To encourage the settlement of cases brought under this section; and

“(B) For courts to enforce the terms of settlements described in paragraph 

(b) of this subsection to the fullest extent possible, except when to do so would 

violate the law or would clearly contravene public policy.”

3 Oregon law requires that the Division of Child Support of the Department 

of Justice establish a formula that courts and agencies must use in determining 
Cite as 353 Or 446 (2013) 449

that neither party would seek modification of that support 

obligation:

“This agreement has been made with the understanding 

that child support will not be reduced and shall continue 

to be paid until the children are 21 years old. The parties 

stipulate that neither will seek a support modification due 

to income changes of the parties, nor due to a change of 

circumstances. For example, the child support amount will 

remain consistent even if Father has the children 50% 

of the time. This is a deviated support arrangement and 

came about due to the position of this case and the original 

decree’s order of judgment.”

The judgment further provided that “[n]either party shall be 

awarded or pay spousal support because of the child support 

agreement reached by the parties” and that “[t]he parties 

have reached complete agreement on the terms of their 

dissolution with regard to marital assets and debts, custody, 

parenting time, and child support as set forth herein.” Both 

parties were represented by counsel, and father did not 

object to or appeal the entry of the stipulated judgment at 

the time.

In 2009, father filed a motion to require mother to 

appear and show cause why father’s child support obligation 

should not be reduced based on an alleged reduction in his 

monthly income from $7,300 to $6,200 and his support of two 

additional children.4

 Mother filed a response and pleaded an 

affirmative defense of waiver, attaching and incorporating 

by reference a copy of the parties’ stipulated judgment. 

Mother also filed a motion to dismiss and asserted that 

father’s agreement not to seek a reduction in child support 

child support awards. That formula, which we will refer to as the “Child Support 

Formula,” is contained in OAR 137-050-0700 through OAR 137-050-0765. 

4 In his affidavit in support of his motion to show cause, father also asserted 

that he had agreed to pay more child support than the presumptively correct 

amount “in exchange for *** being allowed joint custody of the children” and that 

“[mother] recently modified the custody arrangement and has been awarded sole 

legal custody.” In the legal memorandum that father filed thereafter, father did 

not make any argument pertaining to the change in custody. Father also did not 

mention that issue at the hearings that the trial court subsequently conducted. 

The trial court found that a substantial change in circumstances had occurred 

based only on father’s reduction in income. Father did not make any arguments 

relating to the change in custody on appeal to the Court of Appeals or on review to 

this court. 
450 Matar and Harake

due to a change in his income barred father from seeking 

modification of the stipulated child support award.

The parties agreed that the court should decide, 

as a preliminary matter, the legal issue raised by mother’s 

motion to dismiss, and both parties filed memoranda in 

support of their positions. Father argued that (1) “child 

support is a right of the child not of the parents, and there 

is a strong public policy against parties contracting around 

the [Child Support Formula]”; (2) the terms of marital 

settlement agreements may not deprive a court of its 

authority to modify child support due to a substantial change 

in circumstances; and (3) because father had demonstrated 

a substantial change in circumstances, enforcement of the 

nonmodification provision violated public policy and was 

unenforceable.

At a hearing on mother’s motion, the trial court 

indicated that it intended to grant the motion but, 

understanding that father was considering an appeal, 

scheduled a second hearing and asked that the parties 

present the evidence that they would have presented had 

mother not sought dismissal of the proceeding. At the 

conclusion of that second hearing, the court entered a 

Supplemental Judgment of Dismissal and, as requested by 

mother, made specific Findings of Fact and Conclusions of 

Law. The court found that father had shown a substantial 

change in circumstances through reduction in his income 

but that he had entered into a nonmodification agreement 

that neither divested the court of jurisdiction nor violated 

public policy. Therefore, the court concluded, the parties’ 

nonmodification agreement was enforceable, and father’s 

motion for modification should be dismissed.

As the trial court anticipated, father appealed. 

In the Court of Appeals, father argued that the parties’ 

nonmodification agreement was necessarily contrary to 

public policy, because it prevented the court from ensuring 

that father’s child support obligation conformed with the 

Child Support Formula and, in doing so, divested the court 

of its role in protecting children. Father also asserted that 

the legislature could not have intended that ORS 107.104 

and ORS 107.135(15) apply to provisions of marital 
Cite as 353 Or 446 (2013) 451

settlement agreements pertaining to child support and that 

the trial court had erred in dismissing father’s motion for 

modification.

The Court of Appeals affirmed the judgment of the 

trial court. Matar, 246 Or App at 319. The court reasoned 

that ORS 107.104(1) and ORS 107.135(15)(a) create a 

presumption in favor of enforcing stipulated agreements 

resolving suits for marital dissolution, annulment, and 

separation—a presumption that applies to the child support 

terms in those agreements. Id. at 320. An agreement that 

purported to divest the court of authority to modify child 

support would not be enforceable. However, the court held, 

Oregon law does not prohibit parties from waiving the right 

to seek modification of child support; such agreements are 

enforceable unless they violate the law or contravene public 

policy. Id. at 322. In this case, the court concluded, the parties’ 

agreement did not do so, and the trial court did not err. Id. 

at 323. We allowed father’s petition for review to consider 

the relationship between two sets of statutes: (1) those that 

impose child support obligations and establish procedures 

and standards for determining and modifying child support; 

and (2) those that provide for judicial enforcement of the 

terms of marital settlement agreements.

Before this court, father essentially renews his 

previous arguments. First, he argues that the legislature did 

not intend the statutes that provide for judicial enforcement 

of martial settlement agreements (ORS 107.104 and 

ORS 107.135(15)) to apply to terms in those agreements 

pertaining to child support. Second, he argues that, even 

if those statutes do apply to such terms, agreements not 

to modify child support are necessarily unenforceable as 

contrary to public policy, “regardless of the specifics of each 

factual scenario.”5

 Father suggests that such nonmodification 

provisions violate public policy both because they “interfere 

with the courts’ and the [s]tate’s ability to make child 

support determinations in the best interest of particular 

children” and because they prevent parents from seeking 

to modify child support based on unanticipated changes 

5 Father argues that nonmodification provisions necessarily contravene public 

policy. He does not argue that nonmodification provisions necessarily violate 

specific provisions of Oregon law.
452 Matar and Harake

in circumstances. For her part, mother argues that ORS 

107.104 and ORS 107.135(15) are applicable to all terms in 

marital settlement agreements, including terms pertaining 

to child support, and that parents’ agreements to waive their 

rights to seek modification of child support are enforceable 

unless, in a particular case, enforcement would violate the 

law or contravene public policy. Mother argues that, in this 

case, enforcement of the parties’ nonmodification provision 

did not contravene public policy.6

We begin our analysis by reviewing the applicable 

sets of Oregon statutes—those that require parents to 

support their children and those that make parents’ marital 

settlement agreements enforceable.

II. PARENTS’ CHILD SUPPORT OBLIGATIONS

Parents have a legal duty to support their children. 

ORS 109.010 (“Parents are bound to maintain their children 

who are poor and unable to work to maintain themselves; 

and children are bound to maintain their parents in like 

circumstances.”); ORS 109.015 (“It is the public policy of 

this state that dependent children shall be maintained, 

as much as possible, from the resources of both parents 

** *.”); Haxton and Haxton, 299 Or 616, 632, 705 P2d 721 

(1985) (statutory duty of parental support exists and may 

be enforced in a direct action by a child against a parent). 

Parents cannot, by contract, avoid that obligation. See

Jackman v. Short, 165 Or 626, 109 P2d 860 (1941) (court 

modified divorce decree to require payment of child support 

even though original divorce decree was silent); Gibbons v. 

Gibbons, 75 Or 500, 503, 147 P 530 (1915) (because “[t]he 

welfare of these infants is paramount to the rights of any 

other person[,]” an agreement that makes no provision for 

the care of the children cannot be binding when it deprives 

the children of their right to maintenance). In Hess v. Hess, 

115 Or 595, 239 P 124 (1925), the court explained:

“The stipulation did not bind the mother to exclusively 

support the child, but if it had, it would not have been 

binding upon the child or those having the custody of it, 

for the obligation of a parent to support a dependent child 

is one imposed by law and arises from the relationship 

6 Mother also makes various preservation arguments, which we reject.
Cite as 353 Or 446 (2013) 453

of the parties and the requirements of the child, and this 

responsibility neither parent can shirk.”

Id. at 598-99.

The Oregon legislature has enacted various statutes 

that, taken together, protect a child’s right to parental 

support. First, the statute that governs suits for dissolution, 

annulment, or separation authorizes courts to enter child 

support awards in such proceedings. ORS 107.105(1)(c). 

ORS 107.106(b) recognizes that those awards “are designed 

for the child’s benefit and not the parents’ benefit” and 

requires that judgments entered in such proceedings include 

a statement so informing parents.

Second, other statutes give children and the state 

independent rights to seek or enforce child support awards. 

ORS 109.100 allows a child to seek an award of child support 

by filing his or her own petition for support. ORS 107.108 

makes a “child attending school” a party to proceedings 

between parents and creates safeguards to ensure that the 

child benefits from orders intended to provide support or 

maintenance.7

 ORS 25.080(4) authorizes the Department 

of Justice to establish and enforce child support obligations 

and to initiate and respond to child support modification 

proceedings when support is assigned to or provided by the 

state.8

7 ORS 107.108 provides, in part:

“(3) *** [A] child attending school is a party to any legal proceeding 

related to the support order. A child attending school may:

“***** 

“(b) Request a judicial or administrative modification of the child 

support amount or may receive notice of and participate in any modification 

proceeding[.]

“***** 

“(5)(a) If a support order provides for the support or maintenance of a 

child attending school and the child qualifies as a child attending school, 

unless good cause is found for the distribution of the payment to be made in 

some other manner, support shall be distributed to the child if services are 

being provided under ORS 25.080 or shall be paid directly to the child if those 

services are not being provided.” 

8 ORS 25.080(4) provides, in part:

“When responsible for providing support enforcement services and there 

is sufficient evidence available to support the action to be taken, [the Division 

of Child Support of the Department of Justice]:
454 Matar and Harake

Third, in accordance with federal law, courts and 

agencies are required to use the Child Support Formula 

in determining the amount of any child support award. 

ORS 25.270;9

 ORS 25.280.10 The Child Support Formula 

is designed to generate an amount of child support that 

is presumptively correct, considering both the financial 

situation of the parents and the needs of the child for whom 

the support is being sought. ORS 25.275.11 A support award 

determined pursuant to the Child Support Formula is 

“(a) Shall establish and enforce any child support obligation;

“***** 

“(e) Shall, on behalf of the state, initiate and respond to child support 

modification proceedings based upon a substantial change of circumstances; 

“(f) Shall, on behalf of the state, initiate and respond to child support 

modification proceedings based upon a modification conducted under ORS 

25.287 concerning existing child support orders[.]”

9 ORS 25.270 provides, in part: 

“(1) The federal Family Support Act of 1988 mandates that the state must 

establish a formula for child support award amounts that is applicable in any 

judicial or administrative proceeding for the award of child support.

“(2) It is further mandated that the amount of child support determined 

by the formula must be presumed to be the correct amount unless rebutted 

by a specific finding on the record that the application of the formula would 

be unjust or inappropriate in the particular case as determined under criteria 

established by the state.

“***** 

“(5) The Division of Child Support of the Department of Justice is the 

appropriate agency to establish the required formula.” 

10 ORS 25.280 provides, in part:

“In any judicial or administrative proceeding for the establishment 

or modification of a child support obligation *** the amount of support 

determined by the formula established under ORS 25.275 is presumed to be 

the correct amount of the obligation. This is a rebuttable presumption and a 

written finding or a specific finding on the record that the application of the 

formula would be unjust or inappropriate in a particular case is sufficient to 

rebut the presumption.”

11 ORS 25.275(1) provides:

“The Division of Child Support of the Department of Justice shall establish 

by rule a formula for determining child support awards in any judicial or 

administrative proceeding. In establishing the formula, the division shall take 

into consideration the following criteria: 

“(a) All earnings, income and resources of each parent, including real and 

personal property; 

“(b) The earnings history and potential of each parent; 

“(c) The reasonable necessities of each parent; 

“(d) The ability of each parent to borrow; 
Cite as 353 Or 446 (2013) 455

“presumed to be * * * correct”; it may, however, be rebutted 

if a court or agency makes specific written findings 

that the application of the formula would be “unjust” or 

“inappropriate” in a particular case. ORS 25.280.

Recognizing that parents’ ability to support 

their children may change over time, Oregon law also 

provides for the modification of child support awards. ORS 

107.135(3)(a) authorizes a parent to seek modification of 

child support and specifies that a “substantial change in 

economic circumstances of a party” is “sufficient for the 

court to reconsider its order of support[.]”12 ORS 109.100 

anticipates that a child may bring an independent petition 

to modify child support.13 When the state is responsible for 

child support enforcement, ORS 25.287(1) authorizes it to 

seek modification to ensure that the support award is in 

substantial compliance with the Child Support Formula. The 

state cannot seek such modification more often than every 

three years “or such shorter cycle as determined by rule 

of the Department of Justice[.]” ORS 25.287(1)(b). When a 

party seeks modification, the court or agency must apply the 

Child Support Formula and rebuttal factors in setting the 

amount of support. That is true whether the modification 

proceeding is initiated by a parent, a child, or the state. ORS 

25.270; ORS 25.280.

“(e) The educational, physical and emotional needs of the child for whom 

the support is sought; 

“(f) The amount of assistance that would be paid to the child under the full 

standard of need of the state’s IV-A plan; 

“(g) Preexisting support orders and current dependents; and

“(h) Other reasonable criteria that the division may find to be appropriate.”

12 That statute codified this court’s holding that a party seeking modification 

must demonstrate a substantial change in circumstances and that parties are 

otherwise precluded from relitigating settled matters. McDonnal and McDonnal, 

293 Or 772, 783, 652 P2d 1247 (1982). 

13 ORS 109.100 provides, in part:

“(1) Any minor child *** may *** apply *** for an order upon the child’s 

father or mother, or both, to provide for the child’s support.

“*****

“(4) The judgment of a court under subsection (1) of this section is final as 

to any installment or payment of money that has accrued up to the time either 

party makes a motion to set aside, alter or modify the judgment * **.”
456 Matar and Harake

III. ENFORCEMENT OF PARENTS’ SETTLEMENT 

AGREEMENTS

The second set of statutes relevant to the issue 

before us are those that permit the enforcement of parents’ 

settlement agreements. In 2001, the legislature enacted 

ORS 107.104, which announces a policy of encouraging 

settlement agreements in suits for martial annulment, 

dissolution, or separation and provides for the enforcement 

of settlement terms. ORS 107.104 provides:

“(1) It is the policy of this state:

“(a) To encourage the settlement of suits for marital 

annulment, dissolution or separation; and

“(b) For courts to enforce the terms of settlements 

described in subsection (2) of this section to the fullest 

extent possible, except when to do so would violate the law 

or would clearly contravene public policy.”

That statute further provides that a court may enforce 

settlement terms using contractual remedies as well as any 

other remedies available to enforce a judgment, including 

but not limited to contempt.14 ORS 107.104(2).15 ORS 

107.135(15)(a) is analogous: It provides for the enforcement 

of settlement agreements in modification proceedings and 

authorizes the use of contractual and other remedies, except 

when enforcement would violate the law or contravene 

public policy.16

14 In permitting parties to bring enforcement actions using contractual 

remedies as well as any other remedies available to enforce a judgment, ORS 

107.104 and ORS 107.135(15) overturned Webber v. Olsen, 330 Or 189, 998 P2d 

666 (2000), in which the court had declined to enforce as a contract an agreement 

included in a stipulated judgment of dissolution. 

15 ORS 107.104(2) provides:

“In a suit for marital annulment, dissolution or separation, the court 

may enforce the terms set forth in a stipulated judgment signed by the 

parties, a judgment resulting from a settlement on the record or a judgment 

incorporating a marital settlement agreement:

“(a) As contract terms using contract remedies;

“(b) By imposing any remedy available to enforce a judgment, including 

but not limited to contempt; or

“(c) By any combination of the provisions of paragraphs (a) and (b) of this 

subsection.”

16 ORS 107.135(15) provides, in part:

“(a) It is the policy of this state:
Cite as 353 Or 446 (2013) 457

Both statutes are consistent with this court’s 

decision in McDonnal and McDonnal, 293 Or 772, 778, 652 

P2d 1247 (1982). In that case, the court observed that, in 

enacting statutes permitting dissolution of marriage without 

demonstration of fault, the legislature had sought in part to 

avoid unnecessary litigation and use of judicial resources and 

to encourage parties to settle their disputes more amicably. 

Id. at 778. Those objectives, the court explained, “are most 

effectively advanced when proposed property and support 

agreements are accepted by the court and incorporated into 

the dissolution decree.”17 Id. at 779. Furthermore, the court 

suggested, marital agreements should be enforced for many 

of the same reasons that courts enforce private contracts 

generally:

“It is axiomatic that public policy requires that persons 

of full age and competent understanding shall have the 

utmost liberty of contracting, and that their contracts, when 

entered into freely and voluntarily, shall be held sacred and 

shall be enforced by courts of justice; and it is only when 

some other overpowering rule of public policy intervenes, 

rendering such agreements unfair or illegal, that they will 

not be enforced.”

Id. at 779 (internal citations and quotation marks omitted). 

Where an agreement has been incorporated into a decree, 

“(A) To encourage the settlement of cases brought under this section; and

“(B) For courts to enforce the terms of settlements described in paragraph 

(b) of this subsection to the fullest extent possible, except when to do so would 

violate the law or would clearly contravene public policy.

“(b) In a proceeding under subsection (1) of this section, the court may 

enforce the terms set forth in a stipulated order or judgment signed by the 

parties, an order or judgment resulting from a settlement on the record or an 

order or judgment incorporating a settlement agreement: 

“(A) As contract terms using contract remedies;

“(B) By imposing any remedy available to enforce an order or judgment, 

including but not limited to contempt; or

“(C) By any combination of the provisions of subparagraphs (A) and (B) of 

this paragraph.”

17 The passage of no-fault divorce laws and the increased respect for private 

agreements generally was part of a growing national recognition that people should 

have greater autonomy in organizing their domestic relationships. See Jana B. 

Singer, The Privatization of Family Law, 1992 Wis L Rev 1443, 1509 (documenting 

the shift from marriage-as-status to marriage-as-contract and the rise of private 

decision making in family law, and suggesting that these shifts were connected to 

changing notions of individual privacy and decisional autonomy).
458 Matar and Harake

the agreement itself is a measure of the equities between the 

parties, and where parties have foregone their opportunity to 

litigate and have chosen instead to enter into an agreement, 

“their reliance on [that] agreement can be presumed.” Id. at 

779. With those considerations in mind, “[t]he parties’ own 

resolution of their dispute should be accorded great weight,” 

and the court has a “responsibility to discover and give effect 

to the intent of the parties as reflected in the incorporated 

settlement agreement.” Id. As a result, the court concluded 

that martial dissolution agreements, “[o]nce approved by 

the court and incorporated into the decree[,] * * * are to be 

enforced as a matter of public policy.” Id.

IV. ANALYSIS

Having described the applicable statutes, we return 

to the parties’ arguments about the interrelationship of 

those statutes and the policies that they embody. We begin 

with father’s argument that the legislature did not intend 

ORS 107.104 and ORS 107.135(15) to apply to the child 

support terms of marital settlement agreements. To analyze 

that argument, we look first to the text and context of those 

statutes. State v. Gaines, 346 Or 160, 171, 206 P3d 1042 

(2009) (stating analysis).

ORS 107.104 provides for judicial enforcement 

of the “terms” of stipulated judgments in suits for marital 

annulment, dissolution, or separation. Pursuant to ORS 

107.105(1)(c), such terms may include those that provide 

“[f]or the support of the children of the marriage.” Similarly, 

ORS 107.135(15)(a) provides for enforcement of “terms” 

of stipulated orders or judgments reached in proceedings 

to set aside, alter, or modify judgments of annulment, 

dissolution, or separation. Pursuant to ORS 107.135(1), such 

proceedings may include the modification of any portion of 

a judgment that provides for “support and welfare of the 

minor children.” ORS 107.135(1)(a).18 Thus, the text and 

context of both ORS 107.104 and ORS 107.135(15) reflect 

18 ORS 107.135(15)(a) declares that it is the policy of the state for courts to 

enforce the terms of settlements described in ORS 107.135(15)(b). ORS 107.135(15)

(b) authorizes courts to enforce the terms of settlement agreements reached in 

proceedings under ORS 107.135(1). That statute provides, in part:

“(1) The court may at any time after a judgment of annulment or 

dissolution of marriage or of separation is granted *** :
Cite as 353 Or 446 (2013) 459

a legislative intent to make those provisions applicable to 

terms of marital settlement agreements pertaining to child 

support.

Father nevertheless argues that the public policies 

reflected in the statutes that authorize courts to make and 

modify child support awards demonstrate that the legislature 

did not intend for ORS 107.104 or ORS 107.135(15) to apply 

to terms of marital settlement agreements pertaining 

to child support. We disagree. In our view, those statutes 

anticipate the very issue that father raises: They provide 

that courts should enforce marital settlement agreements 

“to the fullest extent possible, except when to do so would 

violate the law or would clearly contravene public policy.” 

(Emphasis added.) The legislature clearly understood 

and provided that, in the event of a conflict between the 

enforcement statutes and the public policies evident in 

other statutes, the enforcement statutes must yield. By 

broadly instructing courts to enforce the “terms” of marital 

settlement agreements subject to certain exceptions, the 

legislature expressed its intent to make that instruction 

applicable to all of the terms of such agreements, except 

those falling within the specified exceptions.19

We proceed, therefore, to father’s argument that 

agreements not to seek modification of child support always 

fall within the statutory exception because the enforcement 

of such agreements necessarily contravenes public policy. 

Father contends that that is so because nonmodification 

agreements interfere with the court’s ability to make child 

“(a) Set aside, alter or modify any portion of the judgment that provides for 

the * ** support and welfare of the minor children and the children attending 

school ***.”

19 Father also proffers legislative history in support of his argument. We 

do not find that material—an excerpt from the legislative discussion of House 

Bill (HB) 2494 (ultimately enacted as ORS 107.104 and ORS 107.135(15)) in 

which Representative Charlie Ringo stated that the bill would not affect “the 

ability to modify support or to enforce payment of child support”—to be helpful. 

Representative Ringo appears to have made that statement in response to a 

question concerning the reach of Webber v. Olsen, 330 Or 189, 998 P2d 666 (2000), 

the case that the legislature intended to overturn in enacting ORS 107.104 and 

ORS 107.135(15). Rather than suggesting that HB 2494 would not reach child 

support obligations, Representative Ringo seems to have been clarifying that the 

contractual remedies that the legislature intended to authorize would not affect 

parents’ ability to seek modification or enforcement of child support obligations 

through traditional judicial remedies.
460 Matar and Harake

support determinations based on children’s best interests 

and because such agreements prevent parents from 

pursuing their right to seek child support modification 

based on changes in circumstances. It appears that father 

is making two interrelated points, although he does not 

clearly distinguish between them: First, enforcement of 

parents’ nonmodification agreements would deprive the 

court of its statutory authority to modify child support 

arrangements; and second, even if the court retains that 

authority, enforcement of nonmodification agreements 

would otherwise “interfere” with the application of the child 

support statutes and thus with the state’s role in protecting 

the interests of children.

Father’s first point is easily refuted: Parties simply 

do not have the power to deprive the court of its authority 

to modify child support where that authority is statutorily 

granted. See McDonnal, 293 Or at 779 (property settlement 

agreement may not preclude court’s statutory power to 

modify spousal support; courts give effect to settlement 

agreements where they do not conflict with statutory powers 

of court). That does not answer the question, however, 

whether parties may agree to refrain from requesting that a 

court exercise its statutory authority to modify child support. 

A contractual provision by which a party agrees not to seek 

judicial action does not deprive a court of its authority; 

rather, it waives the party’s right to seek the court’s exercise 

of that authority. See McInnis and McInnis, 199 Or App 223, 

235-36, 110 P3d 639 (2005) (parties’ waiver of their right to 

seek modification of spousal support “has nothing to do with 

the authority of the court; rather, it involves only whether 

the parties may invoke [the court’s authority]”).

In making the more correctly focused point that 

enforcement of a party’s waiver of the right to seek child 

support modification violates public policy, father raises 

an important distinction between child support terms and 

other terms of marital settlement agreements. For instance, 

an agreement not to seek modification of spousal support is 

an agreement between spouses that affects only the spouses 

themselves. An agreement not to seek modification of child 

support, however, also may affect the rights of the child. 

As explained, Oregon’s child support statutes are carefully 
Cite as 353 Or 446 (2013) 461

crafted to ensure that child support is awarded in an amount 

that will provide for a child’s needs, and those statutes 

permit courts and agencies to adjust that amount when 

circumstances change. The question father raises is whether 

a parent’s agreement not to seek modification of child 

support even where a substantial change in circumstances 

has occurred necessarily contravenes the policies evident in 

that scheme.

For three reasons, we conclude that it does not. 

First, just as parents’ agreements cannot deprive courts of 

statutory authority, a parent’s waiver of the right to seek 

modification cannot affect either the child’s right to seek an 

appropriate level of child support or the state’s authority 

to act on behalf of a child. As noted, ORS 109.100 and 

ORS 25.287(1) authorize both a child and the state to seek 

modification of parents’ child support obligations, regardless 

of parents’ willingness to do so.

Second, although Oregon law permits parents to 

seek modification of child support when circumstances 

change, it does not require them to do so. As noted, ORS 

25.270 and ORS 25.280 require that when child support is set, 

whether originally or on modification, the level of support be 

determined in accordance with the Child Support Formula 

and the rebuttal factors. However, neither party argues that 

a parent who becomes aware of a change in circumstances 

that would permit that parent to seek modification of child 

support must do so, and we are not aware of any such 

requirement. If public policy permits a parent to forego his 

or her statutory right to seek modification at the time that a 

change in circumstances arises, then public policy also may 

permit a parent to anticipate those circumstances and, for 

consideration and in the absence of fraud or duress, make 

an advance decision to forego that statutory right.

Third, and most importantly, ORS 107.104 and 

ORS 107.135(15) specifically provide that parents’ marital 

settlement agreements will not be enforceable when 

enforcement would contravene public policy. ORS 107.104 

(providing that it is the policy of the state “[f]or courts 

to enforce the terms of settlements * ** except when to 

do so would violate the law or would clearly contravene 
462 Matar and Harake

public policy” (emphasis added)); ORS 107.135(15) 

(same). Therefore, when a party seeks enforcement of a 

nonmodification agreement, those statutes permit a court 

to consider whether enforcement of that agreement would 

violate public policy, given the circumstances that exist at 

that time. Should circumstances change, a nonmodification 

agreement does not necessarily tie the hands of the parties 

or the court; if a parent can establish that enforcement of 

the agreement would contravene public policy, the parent 

may seek, and a court may order, modification of a parent’s 

child support obligation. We conclude that ORS 107.104 

and ORS 107.135(15) recognize that the enforcement of 

nonmodification agreements may, but does not necessarily, 

contravene public policy. Courts must make that determination on a case-by-case basis.

Father’s final argument is that, in the circumstance 

in which there has been a substantial change in a parent’s 

economic circumstances such that enforcement of a 

stipulated child support award would require the parent to 

pay child support in excess of the amount required by the 

Child Support Formula, enforcement of a nonmodification 

agreement necessarily contravenes the public policies 

evident in the state’s adoption of that formula. In so arguing, 

father fails to grapple with the fact that Oregon law neither 

requires a parent to seek modification of child support when 

circumstances have changed nor precludes a parent from 

waiving the right to do so. Moreover, father misunderstands 

the purpose of the Child Support Formula and how it is 

applied.

Although the Child Support Formula establishes 

a presumptively correct child support award, a court is 

permitted to consider rebuttal factors and award child 

support that varies from the formula’s prescription to 

ensure that the award is not “unfair” or “inappropriate.” 

ORS 25.280. A party’s agreement to pay a specified amount 

of support in consideration for property, debt, or financial 

awards is one of the factors that a court may consider in 

deciding whether the presumptively correct amount has 

been rebutted.20 Further, the Oregon Administrative Rules 

20 OAR 137-050-0760(1)(l) (listing as a rebuttal factor “[f]indings in a 

judgment, order, decree or settlement agreement that the existing support award 
Cite as 353 Or 446 (2013) 463

specifically authorize parental agreements that deviate from 

the presumptively correct amount when the agreed amount 

is within 10 percent of the presumptively correct amount.21

The fact that a nonmodification provision may prevent a party 

from seeking a reduction in support to the presumptively 

correct amount under the Child Support Formula does not 

necessarily mean that a previously stipulated, higher child 

support award is not fair or appropriate once such factors 

are considered.

More importantly, such an outcome does not per se

contravene public policy. As noted, Oregon’s child support 

statutes, including the Child Support Formula and rebuttal 

factors, are designed to protect children and provide for 

their needs. Thus, evidence that, under that formula and 

considering those factors, a stipulated child support award 

is insufficient to meet a child’s needs may demonstrate that 

enforcement of an agreement not to seek an increase in the 

stipulated award contravenes public policy. In this case, 

however, father did not demonstrate that the same result 

pertained, nor did he posit any other public policy that 

would preclude enforcement of the stipulated child support 

award.

When the parties agreed to dissolve their marriage, 

they agreed that father would pay child support at a level that 

exceeded the presumptively correct amount under the Child 

Support Formula by $8 per month. The parties also agreed 

that father would not seek to reduce his support obligation 

due to a change in his income. The parties’ nonmodification 

is or was made in consideration of other property, debt or financial awards, and 

those findings remain relevant”). 

21 OAR 137-050-0765 provides, in part:

“(2) The guideline support amount and rebuttal factors are intended to 

meet the needs of most families. Likewise, the rebuttal factors *** address 

most situations in which the guideline amount is inappropriate. However, 

there will be families for whom the support amount, even rebutted, is not 

correct and who value the certainty of agreed support amounts.

“(3) In consideration of foregoing hearing and appeal rights, the parties 

may consent to a support amount that is within 10 percent of the amount 

determined under the guideline[s] ***. The order must be entered with the 

written consent of the parties.

“(4) An agreed support amount entered pursuant to this rule is presumed 

to be just and appropriate within the meaning of ORS 25.280.”
464 Matar and Harake

provision was one term in a marital settlement agreement 

that addressed a broad range of negotiated provisions. When 

father later sought modification, he contended that his 

circumstances had changed such that continued payment of 

that previously stipulated amount of support would result 

in a child support obligation that was higher, not lower, than 

the presumptively correct amount under the Child Support 

Formula. Thus, father understandably did not argue that 

enforcement of the obligation to pay the stipulated amount 

of child support failed to meet the children’s needs, nor did 

he identify any other policy served by the Child Support 

Formula and violated by enforcement of the stipulated 

support award. We conclude that the trial court did not 

err in enforcing the parties’ nonmodification agreement in 

accordance with ORS 107.104 and ORS 107.135(15).

The decision of the Court of Appeals and the 

judgment of the circuit court are affirmed.