Chapter 961 Oregon Laws 2001

AN ACT

HB 2801

Relating to support enforcement; amending ORS 25.020 and 25.125.

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

SECTION 1. ORS 25.020 is amended to read:

25.020. (1) Support payments for or on behalf of any person, ordered, registered or filed pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B or 419C, unless otherwise authorized by ORS 25.030, shall be made to the Department of Justice, as the state disbursement unit:

(a) During periods for which support is assigned pursuant to ORS 418.032, 418.042, 419B.406 or 419C.597;

(b) As provided by rules adopted pursuant to ORS 409.021 or under ORS 180.340, when public assistance as defined by ORS 411.010 is provided to a person who receives or has a right to receive support payments on the person's own behalf or on behalf of another person;

(d) For any period during which support enforcement services are provided pursuant to the child support enforcement program created by Title IV-D of the Social Security Act or pursuant to ORS 25.080;

(e) When ordered by the court pursuant to ORS 419B.400;

(f) When a support order that is entered or modified on or after January 1, 1994, includes a provision requiring the obligor to pay support by income withholding; or

(g) When ordered by the court under any other applicable provision of law.

(2) The Department of Justice shall disburse payments, after lawful deduction of fees and in accordance with applicable statutes and rules, to those persons and entities that are lawfully entitled to receive such payments.

(3)(a) When the administrator is providing support enforcement services under ORS 25.080, the obligee may enter into an agreement with a collection agency, as defined in ORS 697.005, for assistance in collecting child support payments.

(b) The department:

(A) Except as otherwise provided in this paragraph, shall disburse support payments, to which the obligee is legally entitled, to the collection agency according to the terms of the agreement between the obligee and the collection agency;

(B) May not disburse moneys to the collection agency before the obligee submits the form referred to in paragraph (c)(A) of this subsection to the department and the department adjusts its support payment records;

(C) May not disburse moneys to the collection agency after 180 days following the date the department adjusts its support payment records as described in subparagraph (B) of this paragraph;

(D) May not disburse moneys to the collection agency if the collection agency violates any provision of this subsection;

(E) Shall credit the obligor's account for the full amount of each support payment received by the department and disbursed to the collection agency;

(F) Shall develop the form referred to in paragraph (c)(A) of this subsection, which shall include a notice to the obligee printed in type size equal to at least 12-point type that the obligee may be eligible for support enforcement services from the department or the district attorney without paying the interest or fee that is typically charged by a collection agency; and

(G) May use information disclosed by the collection agency to provide support enforcement services under ORS 25.080.

(c) The obligee shall:

(A) Provide to the department, on a form approved by the department, information about the agreement with the collection agency; and

(B) Promptly notify the department when the agreement is terminated.

(d) The collection agency:

(A) May provide investigative and location services to the obligee and disclose relevant information from those services to the department for purposes of providing support enforcement services under ORS 25.080;

(B) May not charge interest or a fee for its services exceeding 20 percent of each support payment received; and

(C) May not initiate, without written authorization from the department, any enforcement action relating to support payments on which support enforcement services are provided by the department under ORS 25.080.

[(3)] (4) The Department of Justice may immediately transmit payments received from any obligor who has not previously tendered any payment by a check or instrument which was not paid or was dishonored, to the obligee, without waiting for payment or clearance of the check or instrument received.

[(4)] (5) The Department of Justice shall notify each obligor and obligee by mail when support payments shall be made to the Department of Justice and when the obligation to make payments in this manner shall cease. The department shall provide information about a child support account directly to a party to the support order regardless of whether the party is represented by an attorney. As used in this subsection, “information about a child support account” includes, but is not limited to the:

(a) Date of issuance of the support order.

(b) Amount of the support order.

(d) Dates and amounts of disbursements.

(e) Payee of any disbursements.

(f) Amount of any arrearage.

(g) Source of any collection.

[(5)] (6) Any pleading for the entry or modification of a support order must contain a statement that payment of support under a new or modified order will be by income withholding unless an exception to payment by income withholding is granted under ORS 25.396.

[(6)(a)] (7)(a) Except as provided in paragraph (d) of this subsection, a decree or order establishing paternity or including a provision concerning support shall contain the residence, mailing or contact address, Social Security number, telephone number and driver license number of each party and the name, address and telephone number of all employers of each party.

(b) The decree or order shall also include notice that the obligor and obligee:

(A) Must inform the court and the Department of Justice in writing of any change in the information required by this subsection within 10 days after such change; and

(B) May request that the Department of Human Services review the amount of support ordered after two years or at any time upon a substantial change of circumstances.

(c) The Department of Justice may require of the parties any additional information that is necessary for the provision of support enforcement services under ORS 25.080.

(d)(A) Upon a finding, that may be made ex parte, that the health, safety or liberty of a party or child would unreasonably be put at risk by the disclosure of information specified in this subsection or by the disclosure of other information concerning a child or party to a paternity or support proceeding or if an existing order so requires, a court or administrator or hearings officer, when the proceeding is administrative, shall order that the information not be contained in any document provided to another party or otherwise disclosed to a party other than the state.

(B) The Department of Human Services shall adopt rules providing for similar confidentiality for information described in subparagraph (A) of this paragraph that is maintained by an entity providing support enforcement services under ORS 25.080.

[(7)(a)] (8)(a) Except as otherwise provided in paragraph (b) of this subsection, in any subsequent child support enforcement action, the court or administrator, upon a showing of diligent effort made to locate the obligor or obligee, may deem due process requirements to be met by mailing notice to the last-known residential, mailing or employer address or contact address as provided in ORS 25.085.

(b) Service of an order directing an obligor to appear in a contempt proceeding is subject to ORS 33.015 to 33.155.

[(8)] (9) Subject to ORS 25.030, this section, to the extent it imposes any duty or function upon the Department of Justice, shall be deemed to supersede any provisions of ORS chapters 107, 108, 109, 110, 416, 419A, 419B and 419C [and ORS 110.303 to 110.452] that would otherwise impose the same duties or functions upon the county clerk or the Department of Human Services.

[(9)] (10) Except as provided for in subsections [(10), (11) and (12)] (11), (12) and (13) of this section, credit shall not be given for payments not made to the Department of Justice as required pursuant to subsection (1) of this section.

[(10)] (11) The Department of Justice shall give credit for payments not made to the Department of Justice when:

(a) Payments are not assigned to this or another state and the obligee and obligor agree in writing that specific payments were made and should be credited;

(b) Payments are assigned to the State of Oregon, the obligor and obligee make sworn written statements that specific payments were made, canceled checks or other substantial evidence is presented to corroborate their statements and the obligee has been given prior written notice of any potential criminal or civil liability that may attach to an admission of the receipt of assigned support;

(c) Payments are assigned to another state and that state verifies that payments not paid to the Department of Justice were received by the other state; or

(d) As provided by rule adopted pursuant to ORS 409.021 or under ORS 180.340.

[(11)] (12) An obligor may apply to the Department of Justice for credit for payments made other than to the Department of Justice. If the obligee or other state does not provide the agreement, sworn statement or verification required by subsection [(10)] (11) of this section, credit may be given pursuant to order of a hearings officer of the Department of Human Services after notice and opportunity to object and be heard are given to both obligor and obligee. Notice shall be served upon the obligee as provided by ORS 25.085. Notice to the obligor may be by regular mail at the address provided in the application for credit. A hearing conducted under this subsection is a contested case hearing and ORS 183.413 to 183.470 apply. Any party may seek a hearing de novo in the circuit court.

[(12)] (13) Nothing in this section precludes the Department of Justice from giving credit for payments not made to the Department of Justice when there has been a judicially determined credit or satisfaction or when there has been a satisfaction of support executed by the person to whom support is owed.

[(13)] (14) The Department of Human Services shall adopt rules that:

(a) Direct how support payments that are made through the Department of Justice are to be applied and distributed; and

(b) Are consistent with federal regulations.

SECTION 2. ORS 25.125 is amended to read:

25.125. (1) The Department of Human Services may return moneys to an obligor when the department determines that the obligor has paid more moneys than are due under a support obligation. However, when the obligor has an ongoing support obligation, the department may give the obligor credit for the excess amount paid and apply the credit to the future support obligation until the credit is fully used. When the department applies a credit to offset a future support obligation, the department shall so notify the obligee. The notice must inform the obligee that, if the obligee requests, the department will conduct an administrative review to determine if the record keeping and accounting related to the calculation of the credit balance is correct. The department shall conduct the administrative review within 30 days after receiving the request.

(2) An overpayment in favor of the state is created when the department, under ORS 25.020, has transmitted moneys received from an obligor to an obligee or a collection agency, a child support agency of another state or an agency of this state and:

(a) The amount transmitted is more than the support obligation requires and the department has returned the excess to the obligor under subsection (1) of this section;

(b) The department has misapplied moneys received; or

(c) The amount transmitted is attributable in whole or in part to a tax refund offset collection all or part of which has been taken back by the Internal Revenue Service or the Department of Revenue.

(3)(a) The obligee or the agency to whom the moneys were transmitted owes the amount of the overpayment to the state. The Department of Human Services:

(A) Shall attempt to recover the overpayment if it is cost-effective to do so;

(B) Shall notify the obligee or the agency to whom the overpayment was made that the obligee or agency owes money to the state and specify the amount of the overpayment to be returned to the department; and

(b) If the obligee does not file a timely written objection, the overpayment amount determined by the department is final and the provisions of subsection (4) of this section apply. If the department does not resolve an objection to an obligee's satisfaction, a hearings officer of the department shall hear the objection. An order by the hearings officer is final. An obligee may appeal the decision of a hearings officer to the circuit court for a hearing de novo.

(c) Notwithstanding paragraph (a) of this subsection, if an agency of this or another state owes the overpayment, the agency shall return the amount of the overpayment to the department without notice and opportunity to object.

(4) The amount of the overpayment specified in subsection (3)(a) of this section is a liquidated debt and a delinquent amount owed to the state. The department may recover the debt by obtaining from the obligee a voluntary assignment of a portion of future support payments to be applied to the debt or in any other way permitted by law.

(5)(a) In addition to the debt created under subsection (2) of this section, a debt in favor of the state is created when:

(A) The department receives a check for support amounts due from an obligor or withholder subject to an order to withhold under this chapter;

(B) The department transmits the amount to the obligee, a child support agency of another state or an agency of this state; and

(b) When a debt is created under paragraph (a) of this subsection, the obligor or withholder who presented the check owes the amount of money specified on the check to the state.

(A) Attempt to recover the debt if it is cost-effective to do so;

(B) Notify the obligor or withholder who presented the check that the obligor or withholder owes the money to the state; and

(d) The amount of the debt specified in paragraph (c) of this subsection is a liquidated debt and a delinquent amount owed to the state. The department may recover the debt in any way permitted under law.

(6)(a) When a motion has been filed to terminate, vacate or set aside a support order or to modify a support order to zero, the department may suspend enforcement of the support order if:

(A) Collection of support would result in a credit balance if the motion were granted; or

(B) The order is being terminated or modified to zero because the obligor has physical custody of the child.

(b) When enforcement is to be suspended under this subsection, the obligee shall be notified and may object on the basis that the child is not in the physical custody of the obligor or that the obligee has not consented to the child being in the physical custody of the obligor. When the obligee files an objection under this paragraph, the department may not suspend enforcement.

(c) As used in this subsection, “credit balance” means that payments have been made in excess of all amounts owed by an obligor for ongoing and past due child support.

(7) The department shall adopt rules to carry out the provisions of this section.

Approved by the Governor August 15, 2001

Filed in the office of Secretary of State August 15, 2001

Effective date January 1, 2002

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