dissenting.
I dissent, not because the result reached by the trial court and the majority in this court has not done what is fair in the abstract, but because I believe that under ORS 107.135(2), the court was without power to grant relief as to the accrued installments. ORS 107.135(2) provides:
*305"(2) The decree is a final judgment as to any instalment or payment of money which has accrued up to the time either party makes a motion to set aside, alter or modify the decree, and the court does not have the power to set aside, alter or modify such decree, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of such motion. ” (Emphasis added.)
By the enactment in 1921 of what is now ORS 107.135, the power of a domestic relations court to modify an accrued installment judgment was eliminated. In Poe v. Poe, 246 Or 458, 459-60, 425 P2d 767 (1967), the Oregon Supreme Court noted that:
"This court has repeatedly held, since the finality of the installment judgment was added to the statute in 1921 (Or Laws 1921, ch 114, p 225) that the court is without power to modify or change support money payments once they have become a judgment. Shelley v. Shelley, 1955, 204 Or 436, 283 P2d 663, reviewed the previous cases and confirmed that the statute does not permit the court to alter the prior installment judgment.”
See also Walker v. Walker, 26 Or App 701, 554 P2d 591 (1976), n 2. The majority, however, states:
"Mother’s argument is based upon an incorrect premise. Despite her insistence, this is nota proceeding to 'set aside, alter or modify’ a support order as described in ORS 107.135(2). The father here does not deny that he has had the support obligation. He is not asking that it be set aside, or altered, or modified. He is asking for an order that he be allowed a credit for child support during the lengthy period of time the child was living with him — that is, a recognition that the obligation was paid.”
What the majority fails to perceive, however, is that ORS 107.135(2) provides that the decree becomes a judgment as to accrued installment payments and "the court does not have the power to set aside, alter, or modify such [judgment], or any portion thereof which has accrued prior to the filing of [a motion to modify].” What the trial court has done here is to set aside a final, unpaid installment judgment. ORS 107.135(2) clearly precludes that action. The father’s direct payments for the benefit of the child, how ever well intended or generous, does not, in my view, constitute a payment satisfying the judgment.
*306Another consideration supports my belief that the trial court lacked authority to set aside the judgment in this case. In 1971 the Oregon legislature enacted ORS 107.415, which provides:
"(1) If a party is required by a decree of a court in a domestic relations suit, as defined in ORS 107.510, to contribute to the support, nurture or education of a minor child while the other party has custody thereof, the custodial parent shall notify the party contributing such money when the minor child receives income from his own gainful employment, or is married or enters the military service.
"(2) Any custodial parent who does not provide notice, as required by subsection (1) of this section may be required by the court to make restitution to the contributing party of any money paid, as required by the decree. The court may enter a judgment or satisfy all or part of any accrued judgment to accomplish the restitution.”
The apparent purpose of the enactment of ORS 107.415 was to reinstate the power of the domestic relations court to modify an accrued support judgment in specific circumstances. In Sullivan v. Sullivan, 21 Or App 382, 534 P2d 1178 (1975), this court discussed the purpose of ORS 107.415, stating:
"This statute provides that a custodial parent shall notify the other parent contributing money toward a minor child’s support of income the child receives from his own gainful employment. The obvious reason for this legislation is that it will give to a paying parent an opportunity to move for reduction of support if he/she wishes to do so. The court may require restitution if such notice is not given as required by the statute.” 21 Or App at 384.
Subsequently in Bohm and Bohm, 30 Or App 49, 566 P2d 200 (1977), this court held that restitution under ORS 107.415 is permitted " * * * in the limited circumstances where the child is earning income and the custodial parent fails to give the other parent notice of this fact.” The majority in this case, however, misconstrues the import of ORS 107.415, just as it misconstrued the import of ORS 107.135. The majority states:
"The mother apparently also sees some relevance in ORS 107.415, which she insists was enacted to reinstate the power of the domestic relations court to modify an accrued support judgment in very specific and limited *307circumstances only. We do not read the statute that way. ORS 107.415 is a statute imposing a duty upon a custodial parent, and providing a penalty for that parent’s failure to perform the duty. The purpose is to provide notice; the sanction was added only to assist in carrying out the purpose.”
But the majority’s statement simply begs the question: "Why did the legislature require that notice be provided of a change of circumstance”? As this court noted in Cupp and Cupp, 28 Or App 593, 560 P2d 291 (1977), it was the legislature’s intent that custodial parents not gain irreversible advantage over parents paying support by concealing a change of circumstance which would justify the filing of a motion to reduce or terminate support. Cupp and Cupp, supra, 28 Or App at 596 n 1; see also Sullivan v. Sullivan, supra; and Bohm and Bohm, supra, 30 Or App at 53.
Even under ORS 107.415, the noncustodial parent is entitled to no relief where he or she has actual knowledge of the change of circumstance justifying a modification of the support. obligation, unless the noncustodial parent moves for a modification of the decree. Bohm and Bohm, supra, 30 Or App at 53.
The father in this case, of course, does not rely on ORS 107.415 to support the trial court’s judgment, for it is uncontested that he had actual notice of the change in circumstances which would have justified a modification. The father’s remedy was to move for a modification of the decree and he having failed to do so, I would conclude, reluctantly, that he is entitled to no relief in this case.
The clear import of the single statutory exception provided in ORS 107.415 to the general rule that accrued installment judgments are not modifiable retroactively is that no nonstatutory exceptions exist. Payne and Payne, 23 Or App 611, 543 P2d 7 (1975), does not support the result reached by the majority. In Payne, the mother testified that she did not say she wanted child support while the child was with the father. Based upon what appeared to be a concession on the part of the mother, this court allowed a retroactive satisfaction of the judgment. Payne does not hold that in the absence of the mother’s apparent waiver of the accrued judgment, the court had authority to satisfy *308the judgment based upon nonstatutory "equitable considerations.” See Alspaugh and Alspaugh, 44 Or App 505, 509-10, 605 P2d 1386 (1980).
The father’s remedy was to apply to the trial court for a modification of the decree pursuant to ORS 107.135(l)(a). Having failed to do so, he subjected himself to a final judgment which the trial court was without the power to set aside.
Joseph, C. J., and Richardson, J., concur in this dissent.