Chapter 73 Oregon Laws 2003

AN ACT

HB 2340

Relating to transfer of Child Support Program from Department of Human Services to Department of Justice; creating new provisions; amending ORS 18.325, 18.400, 23.050, 25.020, 25.025, 25.075, 25.080, 25.082, 25.125, 25.243, 25.255, 25.265, 25.275, 25.290, 25.372, 25.378, 25.381, 25.396, 25.414, 25.427, 25.610, 25.625, 25.643, 25.650, 25.680, 25.710, 25.725, 25.727, 25.750, 25.759, 25.762, 25.790, 25.794, 98.352, 107.106, 107.108, 107.425, 108.110, 109.015, 109.100, 109.125, 110.303, 180.340, 192.557, 416.400, 416.415, 416.455, 416.486, 418.032, 418.042, 419B.406, 419B.818, 461.715 and 656.234; repealing ORS 409.021; appropriating money; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2 and 3 of this 2003 Act are added to and made a part of ORS 180.320 to 180.360.

SECTION 2. (1) The Department of Justice is responsible for the administration, supervision and operation of the program authorized by Title IV-D of the Social Security Act (42 U.S.C. 651 et seq.), hereinafter the Child Support Program. The Administrator of the Division of Child Support of the Department of Justice is the Child Support Program Director for the State of Oregon.

(2) The Department of Justice, by and through the director, may:

(a) Enter into cooperative agreements with appropriate courts, law enforcement officials, district attorneys, Indian tribes or tribal organizations and state agencies to provide assistance in carrying out Child Support Program services and any other matters of common concern;

(b) Provide billing, receipting, record keeping, accounting and distribution services for child and spousal support cases that receive services required under state and federal law;

(c) Maintain the state plan required under federal law and act as the liaison for the Child Support Program with the United States Department of Health and Human Services;

(d) Establish policy and adopt rules for the operation of the Child Support Program by the Department of Justice and by entities entering into cooperative agreements under this section;

(e) Conduct performance and program audits of entities entering into cooperative agreements under this section; and

(f) Perform any other act necessary or desirable to ensure the effective administration of the Child Support Program under state and federal law.

(3) The Department of Justice shall accept and disburse federal funds made available to the state for provision of the Child Support Program and all related functions in a manner consistent with federal law. The department may retain the state share of moneys recovered under child support assignments for the administration of the Child Support Program as allowed under federal regulations.

(4) It is the policy of the Child Support Program to inform persons served by the program, in a manner consistent with federal law, of resources not provided by the program that are available for assistance in family law matters including, but not limited to, services provided through the courts of this state, the Oregon State Bar, law schools and legal service providers that receive funding from fees collected under ORS 21.480. The program shall consult with the local family law advisory committees established under ORS 3.434 to ensure that eligible individuals are aware of the services offered by the program. The policy described in this subsection shall be incorporated into staff training and is applicable to all entities that have entered into cooperative agreements with the Department of Justice under this section.

(5) The director shall ensure that Child Support Program policy and rules, to the maximum extent practicable, meet the needs of the majority of families served by the program. The director shall guide program staff regarding implementation of the policy and rules.

SECTION 3. (1) The Child Support Suspense Fund is established in the State Treasury separate and distinct from the General Fund. Interest earned by the Child Support Suspense Fund shall be credited to the Child Support Deposit Fund established under ORS 25.725. All moneys in the Child Support Suspense Fund are appropriated continuously for purposes of ORS 25.020, 25.610, 25.620, 25.777 and all other requirements of the Department of Justice as the state disbursement unit.

(2) The department shall maintain all records required under federal law for the distribution of moneys from the Child Support Suspense Fund.

(3) The Child Support Suspense Fund is not subject to the provisions of ORS 291.234 to 291.260.

SECTION 4. There is imposed upon, assigned and transferred to and vested in the Department of Justice responsibility for all aspects of the Child Support Program authorized by Title IV-D of the Social Security Act (42 U.S.C. 651 et seq.) and all duties, functions and powers of the Department of Human Services that are related to the Child Support Program.

SECTION 5. Notwithstanding the imposition, assignment, transfer and vesting of duties, functions and powers by this 2003 Act, the lawfully adopted rules of the Department of Human Services pertaining to any aspect of the operation of the Child Support Program continue in effect until lawfully superseded or repealed by the rules of the Department of Justice.

SECTION 6. Nothing in this 2003 Act relieves a person of an obligation with respect to a fee, fine or other charge, interest, penalty, forfeiture or other liability, duty or obligation accruing under or with respect to the duties, functions and powers imposed, assigned, transferred and vested by this 2003 Act. The Department of Justice may undertake the collection or enforcement of any such fee, fine, charge, interest, penalty, forfeiture or other liability, duty or obligation.

SECTION 7. The rights and obligations of the Department of Human Services related to the duties, functions and powers imposed, assigned, transferred and vested by this 2003 Act, including those that were legally incurred under assignments, contracts, leases and business transactions executed, entered into or begun before the effective date of this 2003 Act, are transferred to the Department of Justice. For the purpose of succession to these rights and obligations, the Department of Justice is a continuation of the Department of Human Services and not a new authority, and the Department of Justice shall exercise such rights and fulfill such obligations as if they had not been transferred.

SECTION 8. Any proceeding, action, prosecution or other business or matter undertaken or commenced before the effective date of this 2003 Act by the Department of Human Services, with respect to the duties, functions and powers imposed, assigned, transferred and vested in the Department of Justice by this 2003 Act, and still pending on the effective date of this 2003 Act, may be conducted or completed by the Department of Justice in the same manner, under the same terms and conditions and with the same effect as though conducted or completed by the Department of Human Services before the effective date of this 2003 Act.

SECTION 9. Whenever, in any uncodified law or resolution of the Legislative Assembly or in any rule, document, record or proceeding authorized thereby, reference is made to the Department of Human Services or an employee thereof, whose duties, functions or powers are imposed, assigned, transferred and vested by this 2003 Act, except as otherwise provided in this 2003 Act, such reference is considered to describe the Department of Justice or an employee thereof who is charged with carrying out those duties, functions and powers.

SECTION 10. For the purpose of harmonizing and clarifying statute sections published in Oregon Revised Statutes, the Legislative Counsel may substitute for words designating the Department of Human Services, wherever they occur in Oregon Revised Statutes, other words designating the Department of Justice, when such words involve duties, functions and powers imposed, assigned, transferred and vested by this 2003 Act.

SECTION 11. (1) There are transferred to the Department of Justice:

(a) All the supplies, materials, office equipment, records, books and papers within the jurisdiction of the Department of Human Services related to the duties, functions and powers imposed, assigned, transferred and vested by this 2003 Act.

(b) In accordance with an agreement between the Department of Justice and the Department of Human Services, certain employees of the Department of Human Services engaged in the exercise of the duties, functions and powers imposed, assigned, transferred and vested by this 2003 Act, subject to the right of the Department of Justice to abolish positions and change duties to the extent that the Attorney General or the Attorney General’s designee finds it desirable for the sound, efficient and economical administration and enforcement of such duties, functions and powers. However, subject to the right of the Attorney General or the Attorney General’s designee to abolish positions and change duties under this paragraph, an employee occupying a classified position under the State Personnel Relations Law who is so transferred shall insofar as possible retain the same salary classification and civil service status if the employee continues to perform like duties.

(2) Any dispute as to transfers of property and employees under this section shall be resolved by the Governor, and the Governor’s decision is final.

SECTION 12. (1) The unexpended balances of amounts authorized to be expended for the biennium beginning July 1, 2003, from revenues dedicated, continuously appropriated, appropriated or otherwise made available for the purpose of administering and enforcing the duties, functions and powers imposed, assigned, transferred and vested by this 2003 Act, are appropriated to and transferred to and are available for expenditure by the Department of Justice, to the extent provided in subsection (2) of this section, for the biennium beginning July 1, 2003.

(2) For the purpose of administering and enforcing the duties, functions and powers imposed, assigned, transferred and vested by this 2003 Act, and for the payment of the expenses lawfully incurred by the Department of Human Services with respect to the administration and enforcement of such duties, functions and powers, the Department of Justice may expend the moneys that are authorized to be expended by the Department of Human Services for administering and enforcing the duties, functions and powers imposed, assigned, transferred and vested by this 2003 Act and that are unexpended on the effective date of this 2003 Act. The Department of Justice shall assume and pay all outstanding obligations lawfully incurred by the Department of Human Services before the effective date of this 2003 Act that properly are charged against amounts authorized by this section to be expended by the Department of Justice. Responsibility for any specific charges, penalties or obligations may be negotiated by the Department of Human Services and the Department of Justice. The expenditure classifications, if any, established by Acts authorizing or limiting expenditures remain applicable to expenditures by the Department of Justice under this section.

SECTION 13. ORS 18.325 is amended to read:

18.325. (1) Unless otherwise prescribed by law, a person recording a lien record abstract shall use substantially the following form:

______________________________________________________________________________

LIEN RECORD ABSTRACT

The undersigned states:

A. Creditor/Prevailing Party Information:

_ 1. The creditor/prevailing party is:

______________

and the address of the creditor is:

______________

under judgment, decree, order or

petition entered on ____ (date)

in the ___ Court for ___

(County) of ___ (State) under

Case No.___.

_ 2. The Creditor’s

attorney’s name is

______________

Attorney’s Address is:

______________

Attorney’s Phone No. is: ____

B. Debtor/Losing Party Information:

_ 1. The Debtor/losing party is:

______________

_ 2. Debtor’s address (if known):

______________

_ 3. Debtor’s Social Security No. or

Taxpayer Identification No.

(if known):

______________

_ 4. Debtor’s driver license no. and

state of issuance for the license

(if known):

______________

_ 5. Name of debtor’s attorney

(if known):

______________

C. Judgment Information:

_ 1. The amount of the judgment is:

______________

_ 2. The amount of the costs is:

______________

_ 3. The amount of attorney fees,

if any is:

______________

D. The Real or Personal Property to Be Affected

(Check appropriate box):

_ All real property of the

debtor/losing party, now or

hereafter acquired, in

_______County as

provided under ORS 18.320 and 18.350.

_ The following described real or

personal property of debtor (legal

description as set forth or on

attached Exhibit):

______________

IN WITNESS WHEREOF, the

undersigned person or persons have

executed this abstract this __ day

of____, 2__.

________ ________

State of Oregon )

) ss.

County of___ )

The foregoing instrument was acknowledged before me this ___ day of____, 2__, by______.

______________________

Notary Public for Oregon

My commission expires: ______

State of Oregon )

) ss.

County of___ )

The foregoing instrument was acknowledged before me this __ day of__, 2__, by ________ and by ________ of________, a corporation on behalf of the corporation.

______________________

Notary Public for Oregon

My commission expires: ______

______________________________________________________________________________

(2) A lien record abstract that is the result of a judgment for unpaid child or spousal support entered in another state shall be on the form prescribed by rules adopted by the Department of [Human Services] Justice in lieu of the form required by subsection (1) of this section.

SECTION 14. ORS 18.400 is amended to read:

18.400. (1) Subject to subsection (5) of this section, when any judgment is paid or satisfied, that fact may be noted upon the judgment docket of original entry over the signature of the officer having the official custody of [such] the judgment docket, or of the party entitled to receive and receiving payment or satisfaction, or of the attorney or attorneys representing the judgment creditor in the suit, action or proceeding in which the judgment was rendered; provided, such satisfaction [shall] may not be made by an attorney whose authority over the judgment has expired. Upon annulment or payment or satisfaction and entry thereof being so made, the officer having the official custody of the judgment docket of original entry shall, upon request of any person and payment of the applicable fee, issue a certificate showing the fact of satisfaction of such judgment, or annulment of the lien thereof, describing the same sufficiently for identification; and such certificate shall, upon presentation to the officer having official custody of the judgment docket or the clerk in any county in which a certified copy of the judgment or lien record abstract may have been docketed or recorded, be entered upon [such] the judgment docket or recorded in the County Clerk Lien Record where a certified copy of the judgment or a lien record abstract has been recorded for the purpose of making the satisfaction of judgment a matter of record in such county.

(2) Evidence of the satisfaction of any judgment may also be perpetuated by the execution and acknowledgment by the judgment creditor, or the assignee or personal representative of the judgment creditor, of a certificate describing the judgment with convenient certainty, and specifying that the judgment has been paid or otherwise satisfied or discharged. Such certificate shall be acknowledged or proved and certified in the manner provided by law for conveyances of real property, and may be recorded in the County Clerk Lien Record of any county or counties. In case such judgment has been docketed in the judgment docket of a court of any such county, the official custodian of [such] the judgment docket shall, upon filing of such certificate of annulment or satisfaction, make notation thereof in the judgment docket. The procedures authorized by this subsection may be used only when the judgment does not arise pursuant to a support order entered under ORS 108.010 to 108.550, [416.310 to 416.340 and 416.510 to 416.990 and ORS chapter 110 or ORS] 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 25, 107 [or], 109 or 110 which directs that payments are to be made to the Department of Justice.

(3) An assignment of any judgment, executed in like manner, may be:

(a) Filed with the official custodian of the judgment docket of any county in which the judgment has been docketed, and upon such filing shall be docketed therein; or

(b) Recorded in the office of the county clerk of any county in which the judgment was recorded in the County Clerk Lien Record.

(4) In any case in which [a state agency] this or another state is assigned or subrogated to the support rights of a person under ORS 418.032, 418.042, 419B.406 or 419C.597 or similar statutes of another state, a notice of assignment of judgment bearing the signature of the Administrator of the Division of Child Support or the authorized representative of the administrator shall be entitled to record, and with like effect, as an assignment of judgment under subsection (3) of this section.

(5)(a) In cases where support payments ordered under ORS [416.310 to 416.340 and 416.510 to 416.990 and ORS chapter 110 or ORS] 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 25, 107, 108, [or] 109 or 110 are to be paid to the Department of Justice, any full or partial satisfaction of a support payment judgment signed by an obligee or an attorney representing the obligee must be mailed to or delivered to the department [of Justice], and not to the clerk of the court. The department [of Justice] may provide support satisfaction forms, along with specific instructions. No credit shall be given for such support satisfaction except as provided by this subsection. The department shall credit such support satisfaction to the support judgment pay records maintained by the department, except to the extent that the judgment is assigned [to the Department of Human Services] or subrogated to [a state agency under ORS 418.032, 418.042, 419B.406 or 419C.597] this or another state. The department shall then promptly forward the satisfaction instrument to the appropriate clerk of the court together with a department [of Justice] certificate stating the amount of support satisfaction entered on the pay records of the department. The clerk of the court shall enter on the judgment docket only the amount of the support satisfaction shown on the department [of Justice] certificate, and not the amount shown on the satisfaction instrument.

(b) In addition to or in lieu of a certificate and satisfaction instrument provided for in paragraph (a) of this subsection, the department [of Justice] may execute and file satisfactions for judgments based on support orders subject to paragraph (a) of this subsection if the obligor provides a sworn affidavit that indicates that the judgment has been paid in full and the department certifies that the department has a complete pay record for the support payment judgment and further certifies that there are no arrearages. The department shall be considered to have a complete pay record if the department has kept the pay record for the support payment judgment from the date of the first support payment required under the judgment, or if the obligee or an entity providing enforcement services under ORS 25.080 establishes arrearages for the time period the pay record was not kept by the department. A satisfaction of judgment under this paragraph need not be notarized. If the satisfaction of judgment is for any payment made to the department [of Justice] for amounts that have not been assigned by the obligee to the state, the department shall give notice to the obligee in the manner provided by ORS 25.085. The notice must inform the obligee that the department [of Justice] will execute and file the satisfaction of judgment unless the department receives a request for a hearing within 30 days after the date of the mailing of the notice. If an obligee requests a hearing, the department [of Justice] shall conduct the hearing as a contested case under ORS 183.310 to 183.550 before a [hearings] hearing officer appointed by the department [of Justice].

(c) Satisfactions of support payment judgments in cases where support payments are not ordered to be paid to the department [of Justice] or where enforcement services are not provided [pursuant to] under ORS 25.080 must be filed with the clerk of the court.

(6) The [Department of Human Services, the Oregon Youth Authority, assistant attorneys general representing these agencies, the Administrator of the Division of Child Support and the administrator’s designees may, in their discretion, sign and mail or deliver to the Department of Justice a full] department may execute a full or partial satisfaction of a support payment judgment to the extent that such judgment is assigned to the [Department of Human Services or Oregon Youth Authority] state. Notwithstanding subsection (5) of this section, the department [of Justice] may give credit for such satisfaction and shall forward to the clerk of the court the satisfaction instrument together with a department [of Justice] certificate stating the amount of support satisfaction entered on the pay records of the department for entry on the judgment docket of the amount of satisfaction shown on the certificate and not the amount shown on the satisfaction instrument.

SECTION 15. ORS 23.050 is amended to read:

23.050. (1) The writ of execution shall be issued by the clerk and directed to the sheriff. [It] The writ shall contain the name of the court, the names of the parties to the action, and the title thereof[; it]. The writ shall substantially describe the judgment, and if it is for money, shall state the amount actually due thereon, and shall require the sheriff substantially as follows:

(a) If it is against the property of the judgment debtor, and the judgment directs particular property to be sold, it shall require the sheriff to sell such particular property and apply the proceeds as directed by the judgment; otherwise, it shall require the sheriff to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of the real property belonging to such debtor on the day when the judgment was docketed or recorded in the county, or at any time thereafter.

(b) If it is for the delivery of the possession of real or personal property, it shall require the sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may, at the same time, require the sheriff to satisfy any costs, charges, damages, or rents and profits recovered by the same judgment, out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered, to be specified therein, if a delivery thereof cannot be had; and if sufficient personal property cannot be found, then out of the real property, as provided in paragraph (a) of this subsection, and in that respect it is to be deemed an execution against property.

(2)(a) When support enforcement services are being provided under ORS 25.080, [a district attorney or the Division of Child Support] the administrator as defined in ORS 25.010, in accordance with subsection (1) of this section, may issue a writ directed to the sheriff when there is a judgment for unpaid child support and a lien is recorded under ORS 18.320 or 25.670. A copy of the writ shall be filed with the circuit court of the county in which the judgment was docketed or recorded. A writ issued under this subsection is subject to execution under this chapter.

(b) The Department of [Human Services] Justice shall adopt an appropriate form for writs issued by [a district attorney or the Division of Child Support] the administrator under this section. The form shall be substantially as set forth for writs issued under subsection (1) of this section.

SECTION 16. 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] under 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] under 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] under section 2 of this 2003 Act, 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;

(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] under ORS 25.080;

(e) When ordered by the court [pursuant to] under 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 of Justice:

(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;

(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.

(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.

(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] that was not paid or was dishonored, to the obligee[,] without waiting for payment or clearance of the check or instrument received.

(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.

(6)(a) The administrator 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” means the:

(A) Date of issuance of the support order.

(B) Amount of the support order.

(D) Dates and amounts of disbursements.

(E) Payee of any disbursements.

(F) Amount of any arrearage.

(G) Source of any collection.

(b) Nothing in this subsection limits the information the administrator may provide by law to a party who is not represented by an attorney.

(7) 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.

(8)(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 administrator in writing of any change in the information required by this subsection within 10 days after [such] the change; and

(B) May request that the administrator review the amount of support ordered after two years or at any time upon a substantial change of circumstances.

(c) The administrator 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 hearing 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] Justice 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.

(9)(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.

(10) 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 that would otherwise impose the same duties or functions upon the county clerk or the Department of Human Services.

(11) Except as provided for in subsections (12), (13) and (14) of this section, credit shall not be given for payments not made to the Department of Justice as required [pursuant to] under subsection (1) of this section.

(12) The Department of Justice shall give credit for payments not made to the department [of Justice when]:

(a) When 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) When 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) When 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] under section 2 of this 2003 Act.

(13) 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 (12) of this section, credit may be given pursuant to order of a hearing officer assigned from the Hearing Officer Panel established under section 3, chapter 849, Oregon Laws 1999, 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.

(14) 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.

(15) The Department of [Human Services] Justice 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 17. ORS 25.020, as amended by section 3, chapter 455, Oregon Laws 2001, is amended to read:

(a) During periods for which support is assigned [pursuant to] under ORS 418.032, 418.042, 419B.406 or 419C.597;

(e) When ordered by the court [pursuant to] under 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.

(b) The Department of Justice:

(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;

(G) May use information disclosed by the collection agency to provide support enforcement services under ORS 25.080.

(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:

(B) May not charge interest or a fee for its services exceeding 20 percent of each support payment received; and

(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] that was not paid or was dishonored, to the obligee, without waiting for payment or clearance of the check or instrument received.

(A) Date of issuance of the support order.

(B) Amount of the support order.

(D) Dates and amounts of disbursements.

(E) Payee of any disbursements.

(F) Amount of any arrearage.

(G) Source of any collection.

(b) Nothing in this subsection limits the information the administrator may provide by law to a party who is not represented by an attorney.

(b) The decree or order shall also include notice that the obligor and obligee:

(A) Must inform the court and the administrator in writing of any change in the information required by this subsection within 10 days after such change; and

(B) May request that the administrator review the amount of support ordered after two years or at any time upon a substantial change of circumstances.

(c) The administrator may require of the parties any additional information that is necessary for the provision of support enforcement services under ORS 25.080.

(b) Service of an order directing an obligor to appear in a contempt proceeding is subject to ORS 33.015 to 33.155.

(12) The Department of Justice shall give credit for payments not made to the department [of Justice when]:

(a) When 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;

(c) When 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] under section 2 of this 2003 Act.

(13) 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 (12) of this section, credit may be given pursuant to order of a hearing officer of the [Department of Human Services] Employment Department 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.

(15) The Department of [Human Services] Justice 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 17a. If House Bill 2526 becomes law, sections 16 and 17 of this 2003 Act (amending ORS 25.020) are repealed and ORS 25.020, as amended by section 3, chapter 455, Oregon Laws 2001, and section 23, chapter 75, Oregon Laws 2003 (Enrolled House Bill 2526), is amended to read:

(a) During periods for which support is assigned [pursuant to] under ORS 418.032, 418.042, 419B.406 or 419C.597;

(e) When ordered by the court [pursuant to] under 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.

(b) The Department of Justice:

(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;

(G) May use information disclosed by the collection agency to provide support enforcement services under ORS 25.080.

(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:

(B) May not charge interest or a fee for its services exceeding 20 percent of each support payment received; and

(A) Date of issuance of the support order.

(B) Amount of the support order.

(D) Dates and amounts of disbursements.

(E) Payee of any disbursements.

(F) Amount of any arrearage.

(G) Source of any collection.

(b) Nothing in this subsection limits the information the administrator may provide by law to a party who is not represented by an attorney.

(b) The decree or order shall also include notice that the obligor and obligee:

(A) Must inform the court and the administrator in writing of any change in the information required by this subsection within 10 days after such change; and

(B) May request that the administrator review the amount of support ordered after two years or at any time upon a substantial change of circumstances.

(c) The administrator 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 administrative law judge, 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) Service of an order directing an obligor to appear in a contempt proceeding is subject to ORS 33.015 to 33.155.

(12) The Department of Justice shall give credit for payments not made to the department [of Justice when]:

(a) When 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;

(c) When 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] under section 2 of this 2003 Act.

(13) 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 (12) of this section, credit may be given pursuant to order of an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999, 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.

(15) The Department of [Human Services] Justice 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 18. ORS 25.025 is amended to read:

25.025. Once each year, the Department of [Human Services] Justice shall notify the parties in child support cases receiving services under ORS 25.020 of all the following:

(1) When physical custody of a child changes from the obligee to the obligor, the obligation to pay child support for the child is not automatically terminated.

(2) When a physical change of custody of a child occurs, either party may request a modification of the support order to terminate support based on a substantial change of circumstances.

(3) At the request of either party, child support may be established for the parent with current physical custody of the child.

(4) If a change in the physical custody of a child is temporary, the obligee may satisfy support accruing for the child for periods that the child is in the physical custody of the obligor as provided in ORS 18.400.

SECTION 19. ORS 25.075 is amended to read:

25.075. (1) Notwithstanding the provisions of ORS 25.080, the Department of [Human Services] Justice may enter into cooperative agreements with Indian tribes or tribal organizations within the borders of this state, if the Indian tribe or tribal organization demonstrates that the tribe or organization has an established tribal court system or a Court of Indian Offenses with the authority to:

(a) Establish paternity;

(b) Establish, modify and enforce support orders; and

(2) The agreements must provide for the cooperative delivery of child support enforcement services and for the forwarding of all child support collections pursuant to the functions performed by the tribe or organization to the department, or conversely, by the department to the tribe or organization, which shall distribute the child support collections in accordance with [such] the agreement.

SECTION 20. ORS 25.080 is amended to read:

25.080. (1) This subsection describes the entity primarily responsible for providing support enforcement services described in subsection (4) of this section for any order or decree that is or could be entered under ORS chapter 107, 108, 109, 110 or 416 or ORS 419B.400 or 419C.590. The entity shall provide the support enforcement services described in subsection (4) of this section on behalf of the State of Oregon and no other party or either parent. The following entity is primarily responsible:

(a) The Division of Child Support of the Department of Justice:

(A) If support rights are, or were within the past five months, assigned to [the Department of Human Services, the Oregon Youth Authority or a public assistance agency of] this or another state; or

(B) In any case where arrearage under a support order is assigned or owed to or the right to recover back support or state debt is held by [a government agency] this state or another state.

(b) Except as provided in subsection (5) of this section, the district attorney in cases other than those described in paragraph (a) of this subsection if the obligee, obligor, beneficiary or person having physical custody of a minor child regarding any support order that has been imposed or could be imposed requests support enforcement services.

(2) The Department of [Human Services] Justice shall establish rules addressing the provision of support enforcement services when the purposes of the state in providing those services may be contradictory in individual cases.

(3) Notwithstanding the division of responsibility for providing support enforcement services between the Division of Child Support [of the Department of Justice] and the district attorney as described in subsection (1) of this section, provision of support enforcement services [shall] may not be challenged on the basis that the entity providing the services in a particular case is not the entity responsible for the case under subsection (1) of this section.

(4) When responsible for providing support enforcement services and there is sufficient evidence available to support the action to be taken, the entity described in subsection (1) of this section:

(a) Shall establish and enforce any child support obligation;

(b) Shall establish paternity;

(c) Shall enforce spousal support when the obligee is living with the obligor’s child for whom support enforcement services are being provided and those services are funded in part by federal moneys;

(d) May enforce any other order or decree for spousal support;

(e) Shall, on behalf of the state, initiate and respond to child support modification proceedings based upon a substantial change of circumstances;

(f) Shall, on behalf of the state, initiate and respond to child support modification proceedings based upon a modification conducted under ORS 25.287 concerning existing child support orders;

(g) Shall establish and enforce obligations to provide medical insurance coverage for dependent children;

(h) Shall [insure] ensure compliance with the provisions of 42 U.S.C. 651 to 669 and 45 C.F.R. Chapter III as authorized by state law;

(i) Shall carry out the policy of the State of Oregon regarding child support obligations as expressed in ORS 416.405; and

(j) Shall [insure] ensure that child support orders are in compliance with the formula established by this chapter.

(5) The district attorney of any county[, the Department of Human Services and the Division of Child Support of] and the department [of Justice] may provide by agreement for assumption by the Division of Child Support of the functions of the district attorney under subsection (1) of this section or for redistribution between the district attorney and the Division of Child Support of all or any portion of the duties, responsibilities and functions set forth in subsections (1) and (4) of this section.

(6) All county governing bodies and all district attorneys shall enter into child support cooperative agreements with the department [of Human Services]. The following apply to this subsection:

(a) The agreements shall contain appropriate terms and conditions sufficient for the state to comply with all child support enforcement service requirements under federal law; and

(b) If this state loses any federal funds due to the failure of a county governing body or district attorney to either enter into an agreement under this subsection or to provide sufficient support enforcement service, the county shall be liable to the department for, and the liability shall be limited to, the amount of money the state determines it lost because of the failure. The state shall offset the loss from any moneys the state is holding for or owes the county or from any moneys the state would pay to the county for any purpose.

(7) The Department of Justice shall enter into an agreement with the Oregon District Attorneys Association to establish a position or positions to act as a liaison between the Division of Child Support and those district attorneys who provide support enforcement services under this section. The department shall fund the position or positions. The Oregon District Attorneys Association shall administer the liaison position or positions under the agreement. The liaison shall work to:

(a) Enhance the participation and interaction of the district attorneys in the development and implementation of Child Support Program policies and services; and

(b) Increase the effectiveness of child support enforcement services provided by the district attorneys.

[(7)] (8) The district attorney or the Division of Child Support, whichever is appropriate, shall provide the services specified in subsections (1) and (4) of this section to any person requesting them, but may in their discretion, upon a determination and notice to the person requesting the service that the prospect of successful recovery from the obligor of a portion of the delinquency or future payments is remote, require payment to the district attorney or the Division of Child Support of an application fee, in accordance with an application fee schedule established by rule by the department [of Human Services]. If service performed results in the district attorney or the Division of Child Support recovering any support enforcement fees, [such] the fees shall be paid to the applicant in an amount equal to the amount of the application fee.

[(8)] (9) An obligee may request the Division of Child Support [of the Department of Justice] or a district attorney to cease all collection efforts if it is anticipated that physical or emotional harm will be caused to the parent or caretaker relative or the child for whom support was to have been paid. The department [of Human Services], by rule, shall set out the circumstances under which such requests shall be honored.

SECTION 21. ORS 25.082 is amended to read:

25.082. (1) When services are being provided [pursuant to] under Title IV-D of the Social Security Act, the enforcing agency of this or any other state may subpoena financial records and other information needed to establish paternity or to establish, modify or enforce a support order. The subpoena may be served on a party or on a public or private entity. Service of the subpoena may be by certified mail.

(2) A party or public or private entity that discloses information to the enforcing agency in compliance with a subpoena served [pursuant to] under subsection (1) of this section is not liable to any person for any loss, damage or injury arising out of the disclosure.

(3) Upon request of an enforcing agency of another state, only a court or enforcing agency of Oregon may enforce a subpoena issued by the enforcing agency of the other state.

(4) Notwithstanding ORS 192.575, a party or public or private entity that fails without good cause to comply with a subpoena issued under this section is subject to a civil penalty not to exceed $250. A civil penalty under this section must be imposed in the manner provided by ORS 183.090.

(5) The Department of [Human Services] Justice shall adopt rules to implement the provisions of this section.

SECTION 22. ORS 25.125 is amended to read:

25.125. (1) The Department of [Human Services] Justice 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 of Justice, under ORS 25.020, has transmitted moneys received 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] Justice:

(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

(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] hearing officer of the department shall hear the objection. An order by the [hearings] hearing officer is final. An obligee may appeal the decision of a [hearings] hearing 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 of Justice 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 of Justice 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

(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.

(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

(d) The amount of the debt specified in paragraph (c) of this subsection is a liquidated debt and a delinquent amount owed to 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 of Justice 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 of Justice shall adopt rules to carry out the provisions of this section.

SECTION 22a. If House Bill 2526 becomes law, section 22 of this 2003 Act (amending ORS 25.125) is repealed and ORS 25.125, as amended by section 72, chapter 75, Oregon Laws 2003 (Enrolled House Bill 2526), is amended to read:

(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] Justice:

(A) Shall attempt to recover the overpayment if it is cost-effective to do so;

(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, an administrative law judge shall hear the objection. An order by the administrative law judge is final. An obligee may appeal the decision of an administrative law judge to the circuit court for a hearing de novo.