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 711
A-Engrossed
Senate Bill 337
Ordered by the Senate February 20
Including Senate Amendments dated February 20
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Attorney General Hardy
Myers for Department of Justice)
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 that notice of certain domestic relations proceedings
be given to Department of Justice when { + child + } support
rights have been assigned to state.
A BILL FOR AN ACT
Relating to providing notice of certain domestic relations
proceedings to Department of Justice; amending ORS 18.405,
25.010, 107.087, 107.135, 107.431, 108.110 and 109.125.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 18.405 is amended to read:
18.405. At least five days prior to any application to the
circuit court for an order fully or partially satisfying a
support judgment, if { - aid, as defined in ORS 418.035 (2), is
or has been granted to or on behalf of any person who is entitled
to support pursuant to the support order - } { + child support
rights, as defined in ORS 25.010, have been assigned to the
state + }, then a true copy of all papers to be submitted as part
of such application shall be served by personal delivery or
first-class mail on the Administrator of the Division of Child
Support { + of the Department of Justice + } or on the branch
office { - of the division which provides service - }
{ + providing support services + } to the county in which the
application will be made.
SECTION 2. ORS 25.010 is amended to read:
25.010. As used in ORS chapters 23, 107, 108, 109, 293, 416 and
418 and ORS 25.010 to 25.243 and 110.303 to 110.452 and any other
statutes providing for support payments or support enforcement
procedures, unless the context requires otherwise:
(1) 'Administrator' means either the Administrator of the
Division of Child Support of the Department of Justice or a
district attorney, or the administrator's or a district
attorney's authorized representative.
{ + (2) 'Child support rights' means the right to establish
or enforce an obligation imposed or imposable by law to provide
support, including but not limited to medical support and an
unsatisfied obligation to provide support. + }
{ - (2) - } { + (3) + } 'Department' means the Department
of Justice.
{ - (3) - } { + (4) + } 'Disposable income' means that part
of the income of an individual remaining after the deduction from
the income of any amounts required to be withheld by law except
laws enforcing spousal or child support and any amounts withheld
to pay medical or dental insurance premiums.
{ - (4) - } { + (5) + } 'Employer' means any entity or
individual who engages an individual to perform work or services
for which compensation is given in periodic payments or
otherwise.
{ - (5) - } { + (6) + } 'Income' is any monetary obligation
in excess of $4.99 after the fee described in ORS 25.414 (6) has
been deducted that is in the possession of a third party owed to
an obligor and includes but is not limited to:
(a) Compensation paid or payable for personal services whether
denominated as wages, salary, commission, bonus or otherwise;
(b) Periodic payments pursuant to a pension or retirement
program;
(c) Cash dividends arising from stocks, bonds or mutual funds;
(d) Interest payments;
(e) Periodic payments from a trust account;
(f) Any program or contract to provide substitute wages during
times of unemployment or disability;
(g) Any payment pursuant to ORS chapter 657; or
(h) Amounts payable to independent contractors.
{ - (6) - } { + (7) + } 'Obligee' means a child or
caretaker parent or custodian, spouse, former spouse or other
dependent person for whose benefit a court or the administrator,
as defined in ORS 416.400, has ordered a payment of support.
{ - (7) - } { + (8) + } 'Obligor' means any person who has
been ordered by a court or the administrator, as defined in ORS
416.400, to make payments for the support of a child or a
caretaker parent or custodian, spouse, former spouse or other
dependent person.
{ - (8) - } { + (9) + } 'Order to withhold' means an order
or other legal process that requires a withholder to withhold
support from the income of an obligor.
{ - (9) - } { + (10) + } 'Withholder' means any person who
disburses income and includes but is not limited to an employer,
conservator, trustee or insurer of the obligor.
SECTION 3. ORS 107.087 is amended to read:
107.087. Whenever a suit for dissolution, separation or
annulment is initiated under ORS 107.085 and { - aid, as
defined in ORS 418.035 (2), is being granted to or on behalf of
any dependent child or children, natural or adopted, of the
parties - } { + the child support rights of one of the parties
or of a child of both of the parties have been assigned to the
state + }, a true copy of the petition 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 - } { + support services + } to the county in
which the suit is filed.
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 - } { + the child support rights of
one of the parties or of a child of both of the parties have been
assigned to the state + }, 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 - } { + support services + } 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.
SECTION 5. ORS 107.431 is amended to read:
107.431. (1) At any time after a decree of annulment or
dissolution of a marriage or a separation is granted, the court
may set aside, alter or modify so much of the decree relating to
parenting time with a minor child as it deems just and proper or
may terminate or modify that part of the order or decree
requiring payment of money for the support of the minor child
with whom parenting time is being denied after:
(a) Motion to set aside, alter or modify is made by the parent
having parenting time rights;
(b) Service of notice on the parent or other person having
custody of the minor child is made in the manner provided by law
for service of a summons;
(c) Service of notice on the Administrator of the Division of
Child Support of the Department of Justice when { - aid, as
defined in ORS 418.035 (2), is being granted to or on behalf of
any dependent child of the parties - } { + the child support
rights of one of the parties or of a child of both of the parties
have been assigned to the state + }. As an alternative to the
service of notice on the administrator, service may be made upon
the branch office of the division which provides service to the
county in which the motion was filed. Service may be accomplished
by personal delivery or first class mail; and
(d) A showing that the parent or other person having custody of
the child or a person acting in that parent or other person's
behalf has interfered with or denied without good cause the
exercise of the parent's parenting time rights.
(2) The court may request the appearance of the { - district
attorney or the Division of Child Support - } { +
administrator + } in any proceeding under this section in which
it finds that the { - state may have a substantial interest - }
{ + child support rights of one of the parties or of a child of
both of the parties have been assigned to the state + }.
(3) This section shall not apply when the child to whom a duty
of support is owed is in another state that has enacted the
Uniform Child Custody Jurisdiction Act or the Uniform Child
Custody Jurisdiction and Enforcement Act and a court in that
state would have subject matter and personal jurisdiction under
that Act to determine custody and parenting time rights.
SECTION 6. ORS 109.125 is amended to read:
109.125. (1) Any of the following may initiate proceedings
under this section:
(a) A mother of a child born out of wedlock or a female
pregnant with a child who may be born out of wedlock;
(b) Any state agency, if furnishing support to the mother for
the benefit of the child or if furnishing services or assistance
of any kind because of the birth, or impending birth, of the
child;
(c) The duly appointed and acting guardian of the child,
conservator of the child's estate or a guardian ad litem, if the
guardian or conservator has the physical custody of the child or
is providing support for the child;
(d) The Division of Child Support of the Department of Justice;
(e) A person claiming to be the father of a child born out of
wedlock or of an unborn child who may be born out of wedlock; or
(f) The minor child by a guardian ad litem.
(2) Proceedings shall be initiated by the filing of a duly
verified petition of the initiating party. The petition shall
contain:
(a) If the initiating party is one of those specified in
subsection (1)(a) to (d) of this section:
(A) The name of the mother of the child born out of wedlock or
the female pregnant with a child who may be born out of wedlock;
(B) Facts showing the petitioner's status to initiate
proceedings;
(C) A statement that a respondent is the father;
(D) The probable time or period of time during which conception
took place; and
(E) A statement of the specific relief sought.
(b) If the initiating party is a person specified in subsection
(1)(e) of this section:
(A) The name of the mother of the child born out of wedlock or
the female pregnant with a child who may be born out of wedlock;
(B) A statement that the initiating party is the father of the
child and accepts the same responsibility for the support and
education of the child and for all pregnancy-related expenses
that he would have if the child were born to him in lawful
wedlock;
(C) The probable time or period of time during which conception
took place; and
(D) A statement of the specific relief sought.
(3) The proceedings may be commenced by the district attorney
when requested by any person named in subsection (1) of this
section.
(4) When proceedings are initiated by a state agency, the state
and the child's mother and putative father are parties.
{ + (5) When a proceeding is initiated under this section and
the child support rights of one of the parties or of the child at
issue have been assigned to the state, a true copy of the
petition 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 providing support services to
the county in which the suit is filed. + }
SECTION 7. ORS 108.110 is amended to read:
108.110. (1) Any married person or state agency which is
providing public assistance, as defined by ORS 411.010 or care,
support or services as provided in ORS 418.015, to that married
person, or on behalf of minor children may apply to the circuit
court of the county in which the married person resides or in
which the spouse may be found for an order upon the spouse to
provide for support of the married person or for the support of
minor children and children attending school, or both, and, if
the married person initiating the action for support is a woman
who is pregnant, her unborn child, or both, if her spouse is the
natural father of such children, children attending school or
unborn child or if her spouse be the adoptive father of such
children or children attending school. The married person
initiating the action for support or state agency may apply for
the order by filing in such county a petition setting forth the
facts and circumstances upon which the married person relies for
such order. If satisfied that a just cause exists, the court
shall direct that the married person's spouse appear at a time
set by the court to show cause why an order of support should not
be entered in the matter. If it appears to the satisfaction of
the court that the married person initiating the action for
support is without funds to employ counsel and is otherwise
unable to obtain counsel, the court may make an order directing
the district attorney or, if appropriate, the Division of Child
Support of the Department of Justice to prepare such petition and
order to show cause. The provisions of ORS 107.108 apply to an
order entered under this section for the support of a child
attending school.
(2) As used in this section, 'child attending school' has the
meaning given that term in ORS 107.108.
(3) In the event the petition referred to in subsection (1) of
this section has been filed by a state agency, the order of
support shall constitute a judgment in favor of that state agency
and against the obligor.
(4) The provisions of this section apply equally to cases where
it is the husband making application for a support order.
(5) In any proceeding under this section, the obligee, as that
person is defined in ORS 25.010 { - (6) - } , is a party to the
proceeding and the Department of Justice or the district
attorney, whichever is appropriate, shall notify the obligee by
regular mail of the proceeding, whether or not support is
assigned to the state.
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