71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 559
 
                           A-Engrossed
 
                         House Bill 2072
                  Ordered by the House April 12
            Including House Amendments dated April 12
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Representative Bill Witt)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
    { - Requires - }   { + Provides + } that child support
obligation  { + is rebuttably presumed to + } be offset
 { + dollar for dollar + } by child's Social Security or
Veterans' benefits received as result of obligor's disability or
retirement. { +  Establishes procedure for implementing and
rebutting presumption. + }
 
                        A BILL FOR AN ACT
Relating to child support; creating new provisions; and amending
  ORS 25.275 and 107.135.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2001 Act is added to and made
a part of ORS 25.270 to 25.287. + }
  SECTION 2.  { + (1) As used in this section, 'apportioned
veterans' benefits' means the amount the United States Department
of Veterans Affairs deducts from a veteran's award and disburses
to the child of the veteran or the representative payee of the
child.
  (2) Notwithstanding any other law and except as provided in ORS
110.411, Social Security benefits or apportioned veterans'
benefits received on behalf of a child due to an obligor's
disability or retirement are rebuttably presumed to be applied as
a dollar for dollar credit toward the obligor's monthly child
support obligation under an Oregon order if the benefits were not
previously considered in the calculation of the child support
obligation.
  (3)(a) Upon written documentation provided by a party to a
support order of the receipt of the benefits described in
subsection (2) of this section, the entity responsible for
support enforcement services under ORS 25.080 shall provide
notice of the presumption to the obligor and obligee and shall
inform all parties to the support order that unless a party
objects as provided in subsection (4) of this section the amount
owing under the Oregon monthly child support obligation shall be
credited by the dollar amount of the benefits described in
subsection (2) of this section. Any credit given may not exceed
the amount of the monthly child support obligation.
  (b) Credit shall be applied against the support payment
beginning the month following the date of the notice described in
paragraph (a) of this subsection. Credit for benefits received
before the date of the notice shall be allowed as provided in ORS
107.135 (6)(b).
  (c) The entity responsible for support enforcement services
shall serve the notice on the obligee in the manner provided for
service of summons in a civil action or by certified mail, return
receipt requested, and shall serve the notice on the obligor by
first class mail to the obligor's last known address.
  (4) A party may object to the presumption by sending an
objection to the entity responsible for support enforcement
services within 20 days after the date of service of the notice.
The objection must describe the resources available to the
obligor or other evidence that might rebut the presumption that a
dollar for dollar credit should be applied to the child support
obligation. The entity receiving the objection shall cause the
case to be set for a hearing before a court or a hearings
officer.  The court or hearings officer may consider only whether
the presumption has been rebutted.
  (5) Application of the presumption of credit rights created by
this section does not constitute a modification but does not
limit the right of any party to seek a modification of a support
order based upon a change of circumstances or pursuant to ORS
25.287 or any other provision of law. In determining whether a
change in circumstances has occurred or whether two years have
elapsed since entry of a support order, the court or hearings
officer may not consider any action taken under this section as
entry of a support order. The presumption set forth in subsection
(2) of this section applies in any modification proceeding. + }
  SECTION 3. ORS 25.275 is amended to read:
  25.275. (1) 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;
  (e) The educational, physical and emotional needs of the child
for whom the support is sought;
  (f) The amount of assistance which 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) Any Social Security or Veterans' benefits paid 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; and - }
    { - (i) - }   { + (h) + } Other reasonable criteria which the
division may find to be appropriate.
  (2) The formula described in subsection (1) of this section
must also comply with the following standards:
  (a) The child is entitled to benefit from the income of both
parents to the same extent that the child would have benefited
had the family unit remained intact or if there had been an
intact family unit consisting of both parents and the child.
  (b) Both parents should share in the costs of supporting the
child in the same proportion as each parent's income bears to the
combined income of both parents.
  (3) The formula described in subsection (1) of this section
must be designed to insure, as a minimum, that the child for whom
support is sought benefits from the income and resources of the
 
absent parent on an equitable basis in comparison with any other
minor children of the absent parent.
  (4) The Administrator of the Division of Child Support, an
administrative hearings officer or a court shall reduce or
increase the child support obligation to be paid by the obligor
and determined under the formula described in subsection (1) of
this section in consideration of the costs of health insurance
incurred by the obligor or obligee, as provided in ORS 25.255.
  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;
  (c) Terminate a duty of support toward any minor child who has
become self-supporting, emancipated or married;
  (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
  (C) Under such other circumstances as the court deems just and
proper.
  (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 - }   { + shall + } allow, as provided in the rules of
the Child Support Program, a  { + dollar for dollar + } 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 - }   { + an
obligor'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, 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 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.
                         ----------