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 506
House Bill 2328
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Representative Jeff Kropf)
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 as
introduced.
Requires court to consider parent's felony conviction or
violation of conditions of probation, parole or post-prison
supervision when considering custody or parenting time.
A BILL FOR AN ACT
Relating to domestic relations; amending ORS 107.105, 107.135 and
107.137.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 107.105 is amended to read:
107.105. (1) Whenever the court grants a decree of marital
annulment, dissolution or separation, it may further decree as
follows:
(a) For the future care and custody, by one party or jointly,
of all minor children of the parties born, adopted or conceived
during the marriage, and for minor children born to the parties
prior to the marriage, as the court may deem just and proper
under ORS 107.137. The court may hold a hearing to decide the
custody issue prior to any other issues. When appropriate, the
court shall recognize the value of close contact with both
parents and encourage joint parental custody and joint
responsibility for the welfare of the children.
(b) For parenting time rights of the parent not having custody
of such children, and for visitation rights of grandparents
pursuant to a petition filed under ORS 109.121. When a parenting
plan has been developed as required by ORS 107.102, the court
shall review the parenting plan and, if approved, incorporate the
parenting plan into the court's final order. When incorporated
into a final order, the parenting plan is determinative of
parenting time rights. If the parents have been unable to develop
a parenting plan or if either of the parents requests the court
to develop a detailed parenting plan, the court shall develop the
parenting plan in the best interest of the child, ensuring the
noncustodial parent sufficient access to the child to provide for
appropriate quality parenting time and assuring the safety of the
parties, if implicated. The court may deny parenting time to the
noncustodial parent under this subsection only if the court finds
that parenting time would endanger the health or safety of the
child. The court shall recognize the value of close contact with
both parents and encourage, when practicable, joint
responsibility for the welfare of such children and extensive
contact between the minor children of the divided marriage and
the parties. { + The court shall also consider a parent's
previous felony convictions, if any, and any violation of
conditions of probation, parole or post-prison supervision when
developing a parenting plan. + }If the court awards parenting
time to a noncustodial parent who has committed abuse, the court
shall make adequate provision for the safety of the child and the
other parent in accordance with the provisions of ORS 107.718
(4).
(c) For the support of the children of the marriage by the
parties. In ordering child support, the formula established by
ORS 25.270 to 25.287 shall apply. The court may at any time
require an accounting from the custodial parent with reference to
the use of the money received as child support. The court is not
required to order support for any minor child who has become
self-supporting, emancipated or married, or who has ceased to
attend school after becoming 18 years of age.
(d) For spousal support, an amount of money for a period of
time as may be just and equitable for one party to contribute to
the other, in gross or in installments or both. The court may
approve an agreement for the entry of an order for the support of
a party. In making the spousal support order, the court shall
designate one or more categories of spousal support and shall
make findings of the relevant factors in the decision. The court
may order:
(A) Transitional spousal support as needed for a party to
attain education and training necessary to allow the party to
prepare for reentry into the job market or for advancement
therein. The factors to be considered by the court in awarding
transitional spousal support include but are not limited to:
(i) The duration of the marriage;
(ii) A party's training and employment skills;
(iii) A party's work experience;
(iv) The financial needs and resources of each party;
(v) The tax consequences to each party;
(vi) A party's custodial and child support responsibilities;
and
(vii) Any other factors the court deems just and equitable.
(B) Compensatory spousal support when there has been a
significant financial or other contribution by one party to the
education, training, vocational skills, career or earning
capacity of the other party and when an order for compensatory
spousal support is otherwise just and equitable in all of the
circumstances. The factors to be considered by the court in
awarding compensatory spousal support include but are not limited
to:
(i) The amount, duration and nature of the contribution;
(ii) The duration of the marriage;
(iii) The relative earning capacity of the parties;
(iv) The extent to which the marital estate has already
benefited from the contribution;
(v) The tax consequences to each party; and
(vi) Any other factors the court deems just and equitable.
(C) Spousal maintenance as a contribution by one spouse to the
support of the other for either a specified or an indefinite
period. The factors to be considered by the court in awarding
spousal maintenance include but are not limited to:
(i) The duration of the marriage;
(ii) The age of the parties;
(iii) The health of the parties, including their physical,
mental and emotional condition;
(iv) The standard of living established during the marriage;
(v) The relative income and earning capacity of the parties,
recognizing that the wage earner's continuing income may be a
basis for support distinct from the income that the supported
spouse may receive from the distribution of marital property;
(vi) A party's training and employment skills;
(vii) A party's work experience;
(viii) The financial needs and resources of each party;
(ix) The tax consequences to each party;
(x) A party's custodial and child support responsibilities; and
(xi) Any other factors the court deems just and equitable.
(e) For the delivery to one party of such party's personal
property in the possession or control of the other at the time of
the giving of the decree.
(f) For the division or other disposition between the parties
of the real or personal property, or both, of either or both of
the parties as may be just and proper in all the circumstances. A
retirement plan or pension or an interest therein shall be
considered as property. The court shall consider the contribution
of a spouse as a homemaker as a contribution to the acquisition
of marital assets. There is a rebuttable presumption that both
spouses have contributed equally to the acquisition of property
during the marriage, whether such property is jointly or
separately held. Subsequent to the filing of a petition for
annulment or dissolution of marriage or separation, the rights of
the parties in the marital assets shall be considered a species
of coownership, and a transfer of marital assets under a decree
of annulment or dissolution of marriage or of separation entered
on or after October 4, 1977, shall be considered a partitioning
of jointly owned property. The court shall require full
disclosure of all assets by the parties in arriving at a just
property division. In arriving at a just and proper division of
property, the court shall consider reasonable costs of sale of
assets, taxes and any other costs reasonably anticipated by the
parties. If a spouse has been awarded spousal support in lieu of
a share of property, the court shall so state on the record, and
shall order the obligor to provide for and maintain life
insurance in an amount commensurate with the obligation and
designating the obligee as beneficiary for the duration of the
obligation. If the obligor dies prior to the termination of such
support and such insurance is not in force, the court may modify
the method of payment of spousal support under the decree or
order of support from installments to a lump sum payment to the
obligee from the estate of the obligor in an amount commensurate
with the present value of the spousal support at the time of
death. The obligee or attorney of the obligee shall cause a
certified copy of the decree to be delivered to the life
insurance company or companies. If the obligee or the attorney of
the obligee delivers a true copy of the decree to the life
insurance company or companies, identifying the policies involved
and requesting such notification under this section, the company
or companies shall notify the obligee, as beneficiary of the
insurance policy, whenever the policyholder takes any action that
will change the beneficiary or reduce the benefits of the policy.
Either party may request notification by the insurer when premium
payments have not been made. If the obligor is ordered to provide
for and maintain life insurance, the obligor shall provide to the
obligee a true copy of the policy. The obligor shall also provide
to the obligee written notice of any action that will reduce the
benefits or change the designation of the beneficiaries under the
policy.
(g) For the creation of trusts as follows:
(A) For the appointment of one or more trustees to hold,
control and manage for the benefit of the children of the
parties, of the marriage or otherwise, such of the real or
personal property of either or both of the parties, as the court
may order to be allocated or appropriated to their support and
welfare; and to collect, receive, expend, manage or invest any
sum of money decreed for the support and welfare of minor
children of the parties.
(B) For the appointment of one or more trustees to hold, manage
and control such amount of money or such real or personal
property of either or both of the parties, as may be set aside,
allocated or appropriated for the support of a party.
(C) For the establishment of the terms of the trust and
provisions for the disposition or distribution of such money or
property to or between the parties, their successors, heirs and
assigns after the purpose of the trust has been accomplished.
Upon petition of a party or a person having an interest in the
trust showing a change of circumstances warranting a change in
the terms of the trust, the court may make and direct reasonable
modifications in its terms.
(h) To change the name of either spouse to a name the spouse
held before the marriage. The court shall decree a change if it
is requested by the affected party.
(i) For a judgment against one party in favor of the other for
any sums of money found to be then remaining unpaid upon any
enforceable order or orders theretofore duly made and entered in
the proceedings under any of the provisions of ORS 107.095, and
for a judgment against one party in favor of the other or in
favor of the other's attorney for any further sums as additional
attorney fees or additional costs and expenses of suit or defense
as the court finds reasonably and necessarily incurred by such
party; or, in the absence of any such order or orders pendente
lite, a like judgment for such amount of money as the court finds
was reasonably necessary to enable such party to prosecute or
defend the suit. The decree may include a judgment for any
arrearage in any sum ordered while litigation was pending, but if
such a judgment is not included in the decree, such arrearages
shall not be deemed satisfied.
(2) In determining the proper amount of support and the proper
division of property under subsection (1)(c), (d) and (f) of this
section, the court may consider evidence of the tax consequences
on the parties of its proposed decree.
(3) Upon the filing of the decree, the property division
ordered shall be deemed effective for all purposes. This transfer
by decree, which shall effect solely owned property transferred
to the other spouse as well as commonly owned property in the
same manner as would a declaration of a resulting trust in favor
of the spouse to whom the property is awarded, shall not be
deemed a taxable sale or exchange.
(4) If an appeal is taken from a decree of annulment or
dissolution of marriage or of separation or from any part of a
decree rendered in pursuance of the provisions of ORS 107.005 to
107.085, 107.095, 107.105, 107.115 to 107.174, 107.405, 107.425,
107.445 to 107.520, 107.540 and 107.610, the court making such
decree may provide in a separate order for any relief provided
for in ORS 107.095 and shall provide that the order is to be in
effect only during the pendency of the appeal. A temporary order
under this subsection may be enforced as provided in ORS 33.015
to 33.155. On motion of a party the Court of Appeals may review
the trial court's disposition of a request for a temporary order.
A motion under this subsection must be filed with the Court of
Appeals within 14 days after the entry of the temporary order.
The Court of Appeals may modify the trial court's order only if
the Court of Appeals finds an abuse of discretion by the trial
court. Upon such finding, the Court of Appeals may enter a
temporary order, affirm, modify or vacate the trial court's
order, remand the order to the trial court for reconsideration or
impose terms and conditions on the order.
(5) If an appeal is taken from the decree or other appealable
order in a suit for annulment or dissolution of a marriage or for
separation, and the appellate court awards costs and
disbursements to a party, it may also award to that party, as
part of the costs, such additional sum of money as it may adjudge
reasonable as an attorney fee on the appeal.
(6) If, as a result of a suit for the annulment or dissolution
of a marriage or for separation, the parties to such suit become
owners of an undivided interest in any real or personal property,
or both, either party may maintain supplemental proceedings by
filing a petition in such suit for the partition of such real or
personal property, or both, within two years from the entry of
said decree, showing among other things that the original parties
to such decree and their joint or several creditors having a lien
upon any such real or personal property, if any there be,
constitute the sole and only necessary parties to such
supplemental proceedings. The procedure in the supplemental
proceedings, so far as applicable, shall be the procedure
provided in ORS 105.405, for the partition of real property, and
the court granting such decree shall have in the first instance
and retain jurisdiction in equity therefor.
SECTION 2. 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 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, 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 { + :
(a) + } May consider repeated and unreasonable denial of, or
interference with, parenting time to be a substantial change of
circumstances { + ;
(b) Shall consider a party's conviction for a felony to be a
substantial change in circumstances if the party has a previous
conviction of a felony; and
(c) Shall consider a party's violation of the conditions of the
party's terms of probation, parole or post-prison supervision 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 3. ORS 107.137 is amended to read:
107.137. (1) In determining custody of a minor child under ORS
107.105 or 107.135, the court shall give primary consideration to
the best interests and welfare of the child. In determining the
best interests and welfare of the child, the court shall consider
the following relevant factors:
(a) The emotional ties between the child and other family
members;
(b) The interest of the parties in and attitude toward the
child;
(c) The desirability of continuing an existing relationship;
(d) The abuse of one parent by the other;
(e) The preference for the primary caregiver of the child, if
the caregiver is deemed fit by the court; and
(f) The willingness and ability of each parent to facilitate
and encourage a close and continuing relationship between the
other parent and the child. However, the court may not consider
such willingness and ability if one parent shows that the other
parent has sexually assaulted or engaged in a pattern of behavior
of abuse against the parent or a child and that a continuing
relationship with the other parent will endanger the health or
safety of either parent or the child.
(2) The best interests and welfare of the child in a custody
matter shall not be determined by isolating any one of the
relevant factors referred to in subsection (1) of this section,
or any other relevant factor, and relying on it to the exclusion
of other factors. However, { - if a parent has committed abuse,
as defined in ORS 107.705, - } there is a rebuttable presumption
that it is not in the best interests and welfare of the child to
award sole or joint custody of the child to the parent who { +
has:
(a) + } Committed { - the - } abuse { + , as defined in ORS
107.705;
(b) Been convicted of a felony; or
(c) Violated conditions of that parent's probation, parole or
post-prison supervision + }.
(3) In determining custody of a minor child under ORS 107.105
or 107.135, the court shall consider the conduct, marital status,
income, social environment or life style of either party only if
it is shown that any of these factors are causing or may cause
emotional or physical damage to the child.
(4) No preference in custody shall be given to the mother over
the father for the sole reason that she is the mother, nor shall
any preference be given to the father over the mother for the
sole reason that he is the father.
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