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 1774
A-Engrossed
House Bill 2494
Ordered by the House April 5
Including House Amendments dated April 5
Sponsored by Representative SHETTERLY (at the request of Shawn M.
O'Neil)
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.
Permits parties to domestic relations suit to enforce terms of
certain decrees as contract terms with contractual remedies.
{ + Declares emergency, effective on passage. + }
A BILL FOR AN ACT
Relating to decrees in domestic relations suits; creating new
provisions; amending ORS 107.135, 109.155 and 109.165; and
declaring an emergency.
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 107.095 to 107.174. + }
SECTION 2. { + (1) It is the policy of this state:
(a) To encourage the settlement of suits for marital annulment,
dissolution or separation; and
(b) For courts to enforce the terms of settlements described in
subsection (2) of this section to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(2) In a suit for marital annulment, dissolution or separation,
the court may enforce the terms set forth in a stipulated decree
signed by the parties, a decree resulting from a settlement on
the record or a decree incorporating a marital settlement
agreement:
(a) As contract terms using contract remedies;
(b) By imposing any remedy available to enforce a decree,
including but not limited to contempt; or
(c) By any combination of the provisions of paragraphs (a) and
(b) of this subsection.
(3) A party may seek to enforce an agreement and obtain
remedies described in subsection (2) of this section by filing a
motion, serving notice on the other party in the manner provided
by ORCP 7 and, if a remedy under subsection (2)(b) of this
section is sought, complying with the statutory requirements for
that remedy. All claims for relief arising out of the same acts
or omissions must be joined in the same proceeding.
(4) Nothing in subsection (2) or (3) of this section limits a
party's ability, in a separate proceeding, to file a motion to
set aside, alter or modify a decree under ORS 107.135 or to seek
enforcement of an ancillary agreement to the decree. + }
SECTION 3. { + Section 2 of this 2001 Act applies to marital
annulment, dissolution or separation decrees entered before, on
or after the effective date of this 2001 Act. + }
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 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 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.
{ + (12)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment. + }
SECTION 5. { + The amendments to ORS 107.135 by section 4 of
this 2001 Act apply to orders or judgments entered under ORS
107.135 before, on or after the effective date of this 2001
Act. + }
SECTION 6. ORS 109.155 is amended to read:
109.155. (1) The court, in a private hearing, shall first
determine the issue of paternity. If the respondent admits the
paternity, such admission shall be reduced to writing, verified
by the respondent and filed with the court. If the paternity is
denied, corroborating evidence, in addition to the testimony of
the parent or expectant parent, shall be required.
(2) If the court finds, from a preponderance of the evidence,
that the petitioner or the respondent is the father of the child
who has been, or who may be born out of wedlock, the court shall
then proceed to a determination of the appropriate relief to be
granted. The court may approve any settlement agreement reached
between the parties and incorporate the same into any decree
rendered, and it may order such investigation or the production
of such evidence as it deems appropriate to establish a proper
basis for relief.
(3) The court, in its discretion, may postpone the hearing from
time to time to facilitate any investigation or the production of
such evidence as it deems appropriate.
(4) The court shall have the power to order either parent to
pay such sum as it deems appropriate for the past and future
support and maintenance of the child during its minority and
while the child is attending school, as defined in ORS 107.108,
and the reasonable and necessary expenses incurred or to be
incurred in connection with prenatal care, expenses attendant
with the birth and postnatal care. The court may grant the
prevailing party reasonable costs of suit, which may include
expert witness fees, and reasonable attorney fees at trial and on
appeal. The provisions of ORS 107.108 apply to an order entered
under this section for the support of a child attending school.
(5) An affidavit certifying the authenticity of documents
substantiating expenses set forth in subsection (4) of this
section is prima facie evidence to establish the authenticity of
such documents.
{ + (6)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under this section, the court may enforce
the terms set forth in a stipulated decree of paternity signed by
the parties, a decree of paternity resulting from a settlement on
the record or a decree of paternity incorporating a settlement
agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce a decree,
including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
set aside, alter or modify a decree under ORS 109.165 or to seek
enforcement of an ancillary agreement to the decree. + }
SECTION 7. { + The amendments to ORS 109.155 by section 6 of
this 2001 Act apply to paternity decrees entered before, on or
after the effective date of this 2001 Act. + }
SECTION 8. ORS 109.165 is amended to read:
109.165. { + (1) + } Upon motion of either party the court may
set aside, alter or modify so much of the decree as may provide
for the support of the minor child or child attending school, as
defined in ORS 107.108. As to any installment or payment of money
{ - which - } { + that + } has accrued up to the time either
party files a motion to set aside, alter or modify the decree,
the decree is final and the court does not have power to change
it. However, 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. A child attending
school is a party for purposes of this section.
{ + (2)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment. + }
SECTION 9. { + The amendments to ORS 109.165 by section 8 of
this 2001 Act apply to orders or judgments entered under ORS
109.165 before, on or after the effective date of this 2001
Act. + }
SECTION 10. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect on
its passage. + }
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