Chapter 334 Oregon Laws 2001

AN ACT

SB 337

Relating to providing notice of certain domestic relations proceedings to Department of Justice; amending ORS 18.405, 25.010, 107.087, 107.135, 107.431, 108.110 and 109.125.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 18.405 is amended to read:

18.405. At least five days prior to any application to the circuit court for an order fully or partially satisfying a support judgment, if [aid, as defined in ORS 418.035 (2), is or has been granted to or on behalf of any person who is entitled to support pursuant to the support order] child support rights, as defined in ORS 25.010, have been assigned to the state, then a true copy of all papers to be submitted as part of such application shall be served by personal delivery or first-class mail on the Administrator of the Division of Child Support of the Department of Justice or on the branch office [of the division which provides service] providing support services to the county in which the application will be made.

SECTION 2. ORS 25.010 is amended to read:

25.010. As used in ORS chapters 23, 107, 108, 109, 293, 416 and 418 and ORS 25.010 to 25.243 and 110.303 to 110.452 and any other statutes providing for support payments or support enforcement procedures, unless the context requires otherwise:

(1) “Administrator” means either the Administrator of the Division of Child Support of the Department of Justice or a district attorney, or the administrator’s or a district attorney’s authorized representative.

(2) “Child support rights” means the right to establish or enforce an obligation imposed or imposable by law to provide support, including but not limited to medical support and an unsatisfied obligation to provide support.

[(2)] (3) “Department” means the Department of Justice.

[(3)] (4) “Disposable income” means that part of the income of an individual remaining after the deduction from the income of any amounts required to be withheld by law except laws enforcing spousal or child support and any amounts withheld to pay medical or dental insurance premiums.

[(4)] (5) “Employer” means any entity or individual who engages an individual to perform work or services for which compensation is given in periodic payments or otherwise.

[(5)] (6) “Income” is any monetary obligation in excess of $4.99 after the fee described in ORS 25.414 (6) has been deducted that is in the possession of a third party owed to an obligor and includes but is not limited to:

(a) Compensation paid or payable for personal services whether denominated as wages, salary, commission, bonus or otherwise;

(b) Periodic payments pursuant to a pension or retirement program;

(d) Interest payments;

(e) Periodic payments from a trust account;

(f) Any program or contract to provide substitute wages during times of unemployment or disability;

(g) Any payment pursuant to ORS chapter 657; or

(h) Amounts payable to independent contractors.

[(6)] (7) “Obligee” means a child or caretaker parent or custodian, spouse, former spouse or other dependent person for whose benefit a court or the administrator, as defined in ORS 416.400, has ordered a payment of support.

[(7)] (8) “Obligor” means any person who has been ordered by a court or the administrator, as defined in ORS 416.400, to make payments for the support of a child or a caretaker parent or custodian, spouse, former spouse or other dependent person.

[(8)] (9) “Order to withhold” means an order or other legal process that requires a withholder to withhold support from the income of an obligor.

[(9)] (10) “Withholder” means any person who disburses income and includes but is not limited to an employer, conservator, trustee or insurer of the obligor.

SECTION 3. ORS 107.087 is amended to read:

107.087. Whenever a suit for dissolution, separation or annulment is initiated under ORS 107.085 and [aid, as defined in ORS 418.035 (2), is being granted to or on behalf of any dependent child or children, natural or adopted, of the parties] the child support rights of one of the parties or of a child of both of the parties have been assigned to the state, a true copy of the petition shall be served by mail or personal delivery on the Administrator of the Division of Child Support of the Department of Justice[,] or on the branch office [of the division] providing [service] support services to the county in which the suit is filed.

SECTION 4. ORS 107.135 is amended to read:

107.135. (1) The court may at any time after a decree of annulment or dissolution of marriage or of separation is granted, upon the motion of either party and after service of notice on the other party in the manner provided by ORCP 7, and after notice to the Division of Child Support when required pursuant to subsection (8) of this section:

(a) Set aside, alter or modify so much of the decree as may provide for the appointment and duties of trustees, for the custody, parenting time, visitation, support and welfare of the minor children and the children attending school, as defined in ORS 107.108, including any provisions for health or life insurance, or for the support of a party or for life insurance under ORS 107.820 or 107.830;

(b) Make an order, after service of notice to the other party, providing for the future custody, support and welfare of minor children residing in the state, who, at the time the decree was given, were not residents of the state, or were unknown to the court or were erroneously omitted from the decree;

(d) Notwithstanding section 84 (2), chapter 827, Oregon Laws 1973, and after service of notice on the child in the manner provided by law for service of a summons, suspend future support for any child who has ceased to be a child attending school as defined in ORS 107.108; and

(e) Set aside, alter or modify so much of the decree as may provide for a property award based on the enhanced earning capacity of a party that was awarded before October 23, 1999. A property award may be set aside, altered or modified under this paragraph:

(A) When the person with the enhanced earning capacity makes a good faith career change that results in less income;

(B) When the income of the person with the enhanced earning capacity decreases due to circumstances beyond the person’s control; or

(2) In a proceeding under this section to reconsider the spousal or child support provisions of the decree, the following provisions apply:

(a) A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of an involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse.

(b) If the decree provided for a termination or reduction of spousal support at a designated age in anticipation of the commencement of pension, social security or other entitlement payments, and if the obligee is unable to obtain the anticipated entitlement payments, that inability is sufficient change in circumstances for the court to reconsider its order of support.

(c) If social security is considered in lieu of spousal support or partial spousal support, the court shall determine the amount of social security the party is eligible to collect. The court shall take into consideration any pension, retirement or other funds available to either party to effect an equitable distribution between the parties and shall also take into consideration any reduction of entitlement caused by taking early retirement.

(3) In considering under this section whether a change in circumstances exists sufficient for the court to reconsider spousal or child support provisions of a decree, the following provisions apply:

(a) The court or administrator, as defined in ORS 25.010, shall consider income opportunities and benefits of the respective parties from all sources, including but not limited to:

(A) The reasonable opportunity of each party, the obligor and obligee respectively, to acquire future income and assets.

(B) Retirement benefits available to the obligor and to the obligee.

(C) Other benefits to which the obligor is entitled, such as travel benefits, recreational benefits and medical benefits, contrasted with benefits to which the obligee is similarly entitled.

(D) Social Security benefits received on behalf of a child due to a parent’s disability or retirement if the benefits:

(i) Were not previously considered in the child support order; or

(ii) Were considered in an action initiated before March 1, 1999.

(E) Veterans’ benefits received on behalf of a child due to a parent’s disability or retirement if the benefits:

(i) Were not previously considered in the child support order; or

(ii) Were considered in an action initiated before October 23, 1999.

(b) If the motion for modification is one made by the obligor to reduce or terminate support, and if the obligee opposes the motion, the court shall not find a change in circumstances sufficient for reconsideration of support provisions, if the motion is based upon a reduction of the obligor’s financial status resulting from the obligor’s taking voluntary retirement, partial voluntary retirement or any other voluntary reduction of income or self-imposed curtailment of earning capacity, if it is shown that such action of the obligor was not taken in good faith but was for the primary purpose of avoiding the support obligation. In any subsequent motion for modification, the court shall deny the motion if the sole basis of the motion for modification is the termination of voluntarily taken retirement benefits and the obligor previously has been found not to have acted in good faith.

(c) The court shall consider the following factors in deciding whether the actions of the obligor were not in “good faith”:

(A) Timing of the voluntary retirement or other reduction in financial status to coincide with court action in which the obligee seeks or is granted an increase in spousal support.

(B) Whether all or most of the income producing assets and property were awarded to the obligor, and spousal support in lieu of such property was awarded to the obligee.

(C) Extent of the obligor’s dissipation of funds and assets prior to the voluntary retirement or soon after filing for the change of circumstances based on retirement.

(D) If earned income is reduced and absent dissipation of funds or large gifts, whether the obligor has funds and assets from which the spousal support could have been paid.

(E) Whether the obligor has given gifts of substantial value to others, including a current spouse, to the detriment of the obligor’s ability to meet the preexisting obligation of spousal support.

(4) Upon terminating a duty of spousal support, a court shall make specific findings of the basis for the termination and shall include the findings in the judgment order.

(5) Any modification of spousal support granted because of a change of circumstances may be ordered effective retroactive to the date the motion for modification was filed or to any date thereafter.

(6) The decree is a final judgment 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 decree, and the court does not have the power to set aside, alter or modify such decree, or any portion thereof, that provides for any payment of money, either for minor children or the support of a party, that has accrued prior to the filing of such motion. However:

(a) The court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or decree, during which the obligated parent has physical custody of the child with the knowledge and consent of the custodial parent; and

(b) The court or the administrator, as defined in ORS 25.010, may allow, as provided in the rules of the Child Support Program, a credit against child support arrearages for any Social Security or Veterans’ benefits paid retroactively to the child, or to a representative payee administering the funds for the child’s use and benefit, as a result of a parent’s disability or retirement.

(7) In a proceeding under subsection (1) of this section, the court may assess against either party a reasonable attorney fee and costs for the benefit of the other party. If a party is found to have acted in bad faith, the court shall order that party to pay a reasonable attorney fee and costs of the defending party.

(8) Whenever a motion to establish, modify or terminate child support or satisfy or alter support arrearages is filed and [public assistance, as defined in ORS 416.400, is being granted to or on behalf of a dependent child or children, natural or adopted, of the parties] the child support rights of one of the parties or of a child of both of the parties have been assigned to the state, a true copy of the motion shall be served by mail or personal delivery on the Administrator of the Division of Child Support of the Department of Justice[,] or on the branch office [of the division] providing [service] support services to the county in which the motion is filed.

(9)(a) Except as provided in ORS 109.700 to 109.930, the courts of Oregon, having once acquired personal and subject matter jurisdiction in a domestic relations action, retain such jurisdiction regardless of any change of domicile.

(b) The courts of Oregon, in a proceeding to establish, enforce or modify a child support order, shall recognize the provisions of the federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. 1738B).

(10) In a proceeding under this section to reconsider provisions in a decree relating to custody or parenting time, the court may consider repeated and unreasonable denial of, or interference with, parenting time to be a substantial change of circumstances.

(11) Within 30 days after service of notice under subsection (1) of this section, the party served shall file a written response with the court.

SECTION 5. ORS 107.431 is amended to read:

107.431. (1) At any time after a decree of annulment or dissolution of a marriage or a separation is granted, the court may set aside, alter or modify so much of the decree relating to parenting time with a minor child as it deems just and proper or may terminate or modify that part of the order or decree requiring payment of money for the support of the minor child with whom parenting time is being denied after:

(a) Motion to set aside, alter or modify is made by the parent having parenting time rights;

(b) Service of notice on the parent or other person having custody of the minor child is made in the manner provided by law for service of a summons;

(c) Service of notice on the Administrator of the Division of Child Support of the Department of Justice when [aid, as defined in ORS 418.035 (2), is being granted to or on behalf of any dependent child of the parties] the child support rights of one of the parties or of a child of both of the parties have been assigned to the state. As an alternative to the service of notice on the administrator, service may be made upon the branch office of the division which provides service to the county in which the motion was filed. Service may be accomplished by personal delivery or first class mail; and

(d) A showing that the parent or other person having custody of the child or a person acting in that parent or other person’s behalf has interfered with or denied without good cause the exercise of the parent’s parenting time rights.

(2) The court may request the appearance of the [district attorney or the Division of Child Support] administrator in any proceeding under this section in which it finds that the [state may have a substantial interest] child support rights of one of the parties or of a child of both of the parties have been assigned to the state.

(3) This section shall not apply when the child to whom a duty of support is owed is in another state that has enacted the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction and Enforcement Act and a court in that state would have subject matter and personal jurisdiction under that Act to determine custody and parenting time rights.

SECTION 6. ORS 109.125 is amended to read:

109.125. (1) Any of the following may initiate proceedings under this section:

(a) A mother of a child born out of wedlock or a female pregnant with a child who may be born out of wedlock;

(b) Any state agency, if furnishing support to the mother for the benefit of the child or if furnishing services or assistance of any kind because of the birth, or impending birth, of the child;

(c) The duly appointed and acting guardian of the child, conservator of the child’s estate or a guardian ad litem, if the guardian or conservator has the physical custody of the child or is providing support for the child;

(d) The Division of Child Support of the Department of Justice;

(e) A person claiming to be the father of a child born out of wedlock or of an unborn child who may be born out of wedlock; or

(f) The minor child by a guardian ad litem.

(2) Proceedings shall be initiated by the filing of a duly verified petition of the initiating party. The petition shall contain:

(a) If the initiating party is one of those specified in subsection (1)(a) to (d) of this section:

(A) The name of the mother of the child born out of wedlock or the female pregnant with a child who may be born out of wedlock;

(B) Facts showing the petitioner’s status to initiate proceedings;

(D) The probable time or period of time during which conception took place; and

(E) A statement of the specific relief sought.

(b) If the initiating party is a person specified in subsection (1)(e) of this section:

(A) The name of the mother of the child born out of wedlock or the female pregnant with a child who may be born out of wedlock;

(B) A statement that the initiating party is the father of the child and accepts the same responsibility for the support and education of the child and for all pregnancy-related expenses that he would have if the child were born to him in lawful wedlock;

(D) A statement of the specific relief sought.

(3) The proceedings may be commenced by the district attorney when requested by any person named in subsection (1) of this section.

(4) When proceedings are initiated by a state agency, the state and the child’s mother and putative father are parties.

(5) When a proceeding is initiated under this section and the child support rights of one of the parties or of the child at issue have been assigned to the state, a true copy of the petition shall be served by mail or personal delivery on the Administrator of the Division of Child Support of the Department of Justice or on the branch office providing support services to the county in which the suit is filed.

SECTION 7. ORS 108.110 is amended to read:

108.110. (1) Any married person or state agency which is providing public assistance, as defined by ORS 411.010 or care, support or services as provided in ORS 418.015, to that married person, or on behalf of minor children may apply to the circuit court of the county in which the married person resides or in which the spouse may be found for an order upon the spouse to provide for support of the married person or for the support of minor children and children attending school, or both, and, if the married person initiating the action for support is a woman who is pregnant, her unborn child, or both, if her spouse is the natural father of such children, children attending school or unborn child or if her spouse be the adoptive father of such children or children attending school. The married person initiating the action for support or state agency may apply for the order by filing in such county a petition setting forth the facts and circumstances upon which the married person relies for such order. If satisfied that a just cause exists, the court shall direct that the married person’s spouse appear at a time set by the court to show cause why an order of support should not be entered in the matter. If it appears to the satisfaction of the court that the married person initiating the action for support is without funds to employ counsel and is otherwise unable to obtain counsel, the court may make an order directing the district attorney or, if appropriate, the Division of Child Support of the Department of Justice to prepare such petition and order to show cause. The provisions of ORS 107.108 apply to an order entered under this section for the support of a child attending school.

(2) As used in this section, “child attending school” has the meaning given that term in ORS 107.108.

(3) In the event the petition referred to in subsection (1) of this section has been filed by a state agency, the order of support shall constitute a judgment in favor of that state agency and against the obligor.

(4) The provisions of this section apply equally to cases where it is the husband making application for a support order.

(5) In any proceeding under this section, the obligee, as that person is defined in ORS 25.010 [(6)], is a party to the proceeding and the Department of Justice or the district attorney, whichever is appropriate, shall notify the obligee by regular mail of the proceeding, whether or not support is assigned to the state.

Approved by the Governor June 6, 2001

Filed in the office of Secretary of State June 6, 2001

Effective date January 1, 2002

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