71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2801
Sponsored by Representative PATRIDGE (at the request of Mike
Brown)
CHAPTER ................
AN ACT
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;
(c) After the assignment of support terminates for as long as
amounts assigned remain owing;
(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;
Enrolled House Bill 2801 (HB 2801-B) Page 1
(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.
(c) Dates and amounts of payments.
(d) Dates and amounts of disbursements.
(e) Payee of any disbursements.
(f) Amount of any arrearage.
(g) Source of any collection.
Enrolled House Bill 2801 (HB 2801-B) Page 2
{ - (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.
Enrolled House Bill 2801 (HB 2801-B) Page 3
{ - (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
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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
(C) Shall give the obligee opportunity to object.
(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
(C) The check is dishonored.
(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.
(c) The department shall:
(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
(C) Specify the amount of the debt to be paid to the
department.
(d) The amount of the debt specified in paragraph (c) of this
subsection is a liquidated debt and a delinquent amount owed to
Enrolled House Bill 2801 (HB 2801-B) Page 5
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.
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Passed by House July 1, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate July 3, 2001
...........................................................
President of Senate
Enrolled House Bill 2801 (HB 2801-B) Page 6
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2801 (HB 2801-B) Page 7