Legal Question in Family Law in Oregon

You have several options. None of which are easy or sometimes not even cost effective.

The first thing you need to do is document what she owes, and demand she pay. You need to make sure you document your demand, and her refusal.

You can seek a contempt action. Assuming she can pay you, and she's simply choosing not to, you can file a motion of contempt with the court and ask for a hearing and that she either pay, or be held in contempt. If you have to go this far, the court may also order your attorney fees. But you'd still have to pay your attorny, then hope the court orders it and that you can collect it.

You can move to modify your Dissolution judgement. Here, you'd file a motion to modify the judgement, and ask that the court change the terms. You could ask that you get reduced child support for a period of time to make up for the medical expenses, and that the court change the judgement going forward to make you responsible for all medicals, AND reduce the ongoing support obligation. If you did the latter, then you wouldn't have to worry about future medicals. (whether this is a good idea depends on the health and coverage the kids have)

You could also get a judgement in small claims and then see if you can offset that judgement against your ongoing child support. That would mean getting a judgement for the amount of medicals she owes in small claims first. Right now, you can't offset the child support judgement because while you have the right to collect the medicals, you don't have a judgement in a specific amount. if you got a judgement for the medicals, you could also garnish her wages.

I'd assess this as follows. If she can pay, but just won't, then do the contempt action (if you have the money to hire a lawyer), or do the small claims action and garnish her wages. If she can't pay, or you know it will be more cost to go after her because she is difficult, then try to modify the financial terms of your dissolution judgement to take into account your payments for all unpaid medicals.

ALTERNATIVE ANSWER FROM ANOTHER ATTORNEY:

Very simple. First, given that the divorce judgment merely specifies a percentage amount, the exact and specific dollar amount that you claim to now be due and owing has not been judicially adjudicated and fixed (�liquidated�). Until that happens, and the court then renders an order expressly directing the obligated party to pay the adjudicated sum, and sets a deadline for doing so, any contempt proceeding you might bring would be completely defensible.

So don�t waste your time with contempt, at least not at this point. Rather, your remedy is to simply file a motion seeking a Supplemental Judgment adjudicating the amount you now claim to be due and owing, awarding you a money award for said amount, and setting a �due date� for the payment thereof.

Much better, and far more effective, and easier, than a contempt proceeding. Besides, the best advice is to avoid contempt whenever possible. A contempt proceeding brought by a private litigant is limited to seeking the imposition of a court order designed to bring an end to on-going contumacious conduct, or to compensate for financial loss incurred as a result of a past or continuing contempt. In general, such a contempt proceeding is not the best option when all that is sought, and all that is really needed, is simply an adjudication of the amount claimed to be due and owing and a money judgment award on account thereof. Contempt proceedings are generally not very good when used as a debt collection device. The judges resent such proceedings, and they usually invoke needless emotional rancor, are filled with procedural obstacles, and usually put the �accused� and the accuser�s lawyer in �defense mode� as if were a criminal case rather than a simple ordinary civil proceeding seeking reimbursement for money expended.

Next, there is no need or basis for modifying the terms of the original divorce judgment, nor has there been any substantial change of circumstances that would support such a modification. Adverse party was ordered to pay for half the uninsured meds. The fact that he/she has not done so is not a �substantial change of circumstances� sufficient on which to base a motion seeking judgment modification.

Next, a Small Claims Court action between former spouses is an inappropriate proceeding if what is sought is simply enforcement of a dissolution judgment provision that calls for the payment of a money obligation established by a divorce judgment. The money payment obligation was rendered by the divorce court. Enforcement of such a judgment remains in the domain of the divorce court, not the Small Claims Court.

Finally, once you obtain your Supplemental Judgment and money award for the specific dollar amount that has been adjudicated as due and owing, you will then be a �judgment creditor� and may then invoke all of the �judgment remedies� provided by law for collection of a money judgment debt (the same as any other judgment debt), including garnishment, levy, execution, liens on property, judgment debtor exams, etc. Much more effective than a contempt proceeding.

LAWRENCE D. GORIN

http://ldgorin.justia.net/index.com

Law Office of L.D. Gorin

521 S.W. Clay St., Suite 205

Portland, Oregon 97201

Telephone: 503.224.8884

Fax: 503.226.1321

E-mail: [email protected]