Chapter 146 Oregon Laws 2003

AN ACT

HB 2645

Relating to child support judgments; creating new provisions; and amending ORS 25.164, 25.167 and 416.422.

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 chapter 25.

SECTION 2. Enforcement and modification of child support judgments. (1) As used in this section, “child support judgment” means the terms of a judgment, decree or order of a court, or an order that has been filed under ORS 416.440, that provide for past or current monetary support or for health insurance under ORS 25.255 for the benefit of a child. “Child support judgment” does not include any term of a judgment, decree or order that deals with matters other than monetary support or health insurance under ORS 25.255 for the benefit of a child.

(2)(a) A child support judgment originating under ORS 416.440 has all the force, effect and attributes of a circuit court judgment. The judgment lien created by a child support judgment originating under ORS 416.440 applies to all arrearages owed under the underlying order from the date the administrator or hearing officer entered, filed or registered the underlying order under ORS 416.400 to 416.470 or ORS chapter 110.

(b) Until the underlying order is filed under ORS 416.440, the order may not be enforced against and has no lien effect on real property.

(c) No action to enforce a child support judgment originating under ORS 416.440 may be taken while the child support judgment is stayed under ORS 416.427, except as permitted in the order granting the stay.

(3) In any judicial or administrative proceeding in which child support may be awarded under this chapter or ORS chapter 107, 108, 109, 110 or 416 or ORS 125.025, 419B.400 or 419C.590, if a child support judgment already exists with regard to the same obligor and child:

(a) A court may only enforce the existing child support judgment, modify the existing child support judgment as specifically authorized by law or set aside the existing child support judgment under subsection (6) of this section or under the provisions of ORCP 71. If the court sets aside the existing child support judgment, the court may issue a new child support judgment.

(b) The administrator or hearing officer may only enforce the existing child support judgment, modify the existing child support judgment as specifically authorized by law or, with regard to an existing child support judgment originating under ORS 416.400, move to set aside the existing child support judgment under subsection (6) of this section or for the reasons set out in ORCP 71.

(4) If the administrator or hearing officer finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, the administrator or hearing officer shall apply the provisions of section 5 of this 2003 Act.

(5)(a) If the court finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, and each judgment was issued in this state, the court shall apply the provisions of section 3 of this 2003 Act to determine the controlling terms of the child support judgments and to issue a governing child support judgment as defined in section 3 of this 2003 Act.

(b) If the court finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, and one or more of the judgments was issued by a tribunal of another state, the court shall apply the provisions of ORS chapter 110 to determine which judgment is the controlling child support order.

(6) Subject to the provisions of subsection (3) of this section, a court may modify or set aside a child support judgment issued in this state when:

(a) The child support judgment was issued without prior notice to the issuing court, administrator or hearing officer that:

(A) There was pending in this state or any other jurisdiction any type of support proceeding involving the child; or

(B) There existed in this state or any other jurisdiction another child support judgment involving the child; or

(b) The child support judgment was issued after another child support judgment, and the later judgment did not enforce, modify or set aside the earlier judgment in accordance with this section.

(7) When modifying a child support judgment, the court, administrator or hearing officer shall specify in the modification judgment the effects of the modification on the child support judgment being modified.

SECTION 3. Multiple child support judgments. (1) As used in this section:

(a) “Child support judgment” has the meaning given that term in section 2 of this 2003 Act.

(b) “Governing child support judgment” means a child support judgment issued in this state that addresses both monetary support and health insurance under ORS 25.255 and is entitled to exclusive prospective enforcement or modification with respect to any earlier child support judgment issued in this state.

(2) Notwithstanding any other provision of this section or section 2 of this 2003 Act, when there exist two or more child support judgments involving the same obligor and child and one or more of the judgments was issued by a tribunal of another state, the court shall apply the provisions of ORS chapter 110 before enforcing or modifying a judgment under this section or section 2 of this 2003 Act.

(3) When there exist two or more child support judgments involving the same obligor and child and the same period of time, any party to one or more of the child support judgments or the administrator, under section 5 of this 2003 Act, may file a petition with the court for a governing child support judgment under this section. When a matter involving a child is before the court and the court finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, the court on its own motion, and after notice to all affected parties, may determine the controlling terms of the child support judgments and issue a governing child support judgment under this section.

(4) When there exist two or more child support judgments involving the same obligor and child and the same period of time, and each judgment was issued in this state, there is a presumption that the terms of the last-issued child support judgment are the controlling terms and supersede contrary terms of each earlier-issued child support judgment, except that:

(a) When the last-issued child support judgment is silent about monetary support for the benefit of the child, the monetary support terms of an earlier-issued child support judgment continue; and

(b) When the last-issued child support judgment is silent about health insurance under ORS 25.255 for the benefit of a child, the health insurance terms of an earlier-issued child support judgment continue.

(5) A party may rebut the presumption in subsection (4) of this section by showing that:

(a) The last-issued child support judgment should be set aside under the provisions of ORCP 71;

(b) The last-issued child support judgment was issued without prior notice to the issuing court, administrator or hearing officer that:

(A) There was pending in this state or any other jurisdiction any type of support proceeding involving the child; or

(B) There existed in this state or any other jurisdiction another child support judgment involving the child; or

(c) The last-issued child support judgment was issued after an earlier child support judgment and did not enforce, modify or set aside the earlier child support judgment in accordance section 2 of this 2003 Act.

(6) When a court finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, and each child support judgment was issued in this state, the court shall set the matter for hearing to determine the controlling terms of the child support judgments. When the child support judgments were issued in different counties of this state, the court may cause the records from the original proceedings to be transmitted to the court in accordance with ORS 25.100.

(7) Following a review of each child support judgment and any other evidence admitted by the court:

(a) The court shall apply the presumption in subsection (4) of this section, unless the presumption is rebutted, and shall determine the controlling terms of the child support judgments; and

(b) Notwithstanding section 2 (3) of this 2003 Act, the court shall issue a governing child support judgment addressing both monetary support and health insurance under ORS 25.255 for the benefit of the child.

(8) The governing child support judgment must include:

(a) A reference to each child support judgment considered and a copy of the judgment;

(b) A determination of which terms regarding monetary support and health insurance under ORS 25.255 are controlling and which child support judgment or judgments contain those terms;

(c) An affirmation, termination or modification of the terms regarding monetary support and health insurance under ORS 25.255 in each of the child support judgments;

(d) Except as provided in subsection (9) of this section, a reconciliation of any monetary support arrears or credits for overpayments under all of the child support judgments; and

(e) The effective date of each controlling term and the date of the termination of each noncontrolling term in each of the child support judgments.

(9) The court may order the parties, in a separate proceeding under ORS 25.167 or in a proceeding under ORS 416.429, to reconcile any monetary support arrears or credits for overpayments under all of the child support judgments.

(10) When the court issues the governing child support judgment, the noncontrolling terms of each earlier child support judgment regarding monetary support or health insurance under ORS 25.255 are terminated. However, the issuance of the governing child support judgment does not affect any support payment arrearage or any liability related to health insurance coverage that has accrued under a child support judgment before the governing child support judgment is issued.

(11) Not sooner than 30 days and not later than 60 days after entry of the governing child support judgment, a party named by the court, or the petitioner if the court names no other party, shall file a certified copy of the governing child support judgment with each court or the administrator that issued an earlier child support judgment. A party who fails to file a certified copy of the governing child support judgment as required by this subsection is subject to monetary sanctions, including but not limited to attorney fees, costs and disbursements. A failure to file does not affect the validity or enforceability of the governing child support judgment.

(12) This section applies to any judicial proceeding in which child support may be awarded or modified under this chapter or ORS chapter 107, 108, 109 or 416 or ORS 125.025, 419B.400, 419B.923, 419C.590 or 419C.610.

SECTION 4. Section 5 of this 2003 Act is added to and made a part of ORS 416.400 to 416.470.

SECTION 5. Multiple child support judgments. (1) As used in this section:

(a) “Child support judgment” has the meaning given that term in section 2 of this 2003 Act.

(b) “Governing child support judgment” has the meaning given that term in section 3 of this 2003 Act.

(2) Notwithstanding any other provision of this section or section 2 of this 2003 Act, when there exist two or more child support judgments involving the same obligor and child, and when one or more of the judgments was issued by a tribunal of another state, the administrator shall apply the provisions of ORS chapter 110 before enforcing or modifying a child support judgment under this section or section 2 of this 2003 Act.

(3) When the administrator finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, and each child support judgment was issued in this state:

(a) The administrator may petition the court for the county where a child who is subject to the judgments resides for a governing child support judgment under section 3 of this 2003 Act; or

(b) The administrator may apply the presumption described in section 3 of this 2003 Act, determine the controlling terms of the child support judgments and issue a proposed governing child support order and notice to the parties in the manner prescribed by rules adopted by the administrator under ORS 416.455. The proposed governing child support order must include all of the information described in section 3 (8) of this 2003 Act. The administrator shall serve the proposed governing child support order and notice in the manner provided in ORS 416.425. The notice must include a statement that the proposed governing child support order shall become final unless a written objection is made to the administrator within 60 days after service of the proposed governing child support order and notice.

(4) If the administrator receives a timely written objection to a proposed governing child support order issued under subsection (3)(b) of this section, the administrator shall certify the matter to the court for the county where a child who is subject to the judgments resides for a governing child support judgment under section 3 of this 2003 Act.

(5) If the administrator does not receive a timely written objection to a proposed governing child support order issued under subsection (3)(b) of this section, the governing child support order is final. The administrator shall certify the governing child support order to a court for review and approval under ORS 416.425 (7). The governing child support order is not effective until reviewed and approved by the court. If the court approves the governing child support order, the governing child support order becomes the governing child support judgment upon filing as provided in ORS 416.440.

(6) Once a governing child support judgment is created under this section, the noncontrolling terms of each earlier child support judgment regarding monetary support or health insurance under ORS 25.255 are terminated. However, the creation of a governing child support judgment does not affect any support payment arrearage or any liability related to health insurance coverage that has accrued under a child support judgment before the governing child support judgment is created.

(7) Not sooner than 30 days and not later than 60 days after entry of the governing child support judgment, the administrator shall file a certified copy of the governing child support judgment with each court that issued an earlier child support judgment. A failure to file does not affect the validity or enforceability of the governing child support judgment.

(8) When a hearing officer finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, and each child support judgment was issued in this state, the hearing officer shall remand the matter to the administrator to follow the provisions of subsection (3) of this section.

SECTION 6. ORS 25.164 is amended to read:

25.164. (1) If the payment method for support payments set forth in the [governing] support [order] judgment does not require payments to be made through the Department of Justice, the obligor, obligee, district attorney or Division of Child Support of the Department of Justice may request to have subsequent payments made through the department. All of the following apply to the request:

(a) The request must be in writing;

(b) The request must include the last-known addresses of the obligor and the obligee; and

(2) When a request is made under this section, all of the following apply:

(a) The existing method of support accounting shall terminate effective the first day of the month following the month the request was filed;

(b) The department shall commence support accounting and distribution when the existing method is terminated; and

(c) The request constitutes an application for support enforcement services and for the use of state and federal laws, regulations and rules relating to support payments and enforcement of [orders] judgments.

(3) If there is no appropriate record of support payments for purposes of this section, the department may establish a record of arrearage under ORS 25.167.

SECTION 7. ORS 25.167 is amended to read:

25.167. This section establishes procedures for determining the amount of arrearage and for making a record of arrearage of support payments. All of the following apply to this section:

(1) A record of support payment arrearage may be established by:

(a) Court order;

(b) A governing child support judgment issued under section 3 or 5 of this 2003 Act;

(c) Administrative order issued under ORS 416.427 or 416.429;

[(b)] (d) Stipulation of the parties; or

[(c)] (e) The procedures under subsection (2) of this section whenever an existing child or spousal support case enters the Department of Justice records system without a current payment record maintained by any court clerk.

(2) When allowed under subsection (1) of this section, arrearage amounts may be established under this subsection. All of the following apply to this subsection:

(a) The obligee or obligor may execute a certificate in a form acceptable to the Department of Justice that states the total amount owed or the payment history in as much detail as is necessary to demonstrate the periods and amounts of any arrearage.

(b) The person making the certificate shall file the original certificate with the court in which the decree or support judgment was entered. When a governing child support judgment has been issued, the person making the certificate shall file the original certificate with the court that issued the governing child support judgment.

(c) The person making the certificate shall serve a true copy of the certificate upon the other party together with a notice that the certificate will be the basis of a permanent record unless the other party files objections.

(d) For objections to be valid under paragraph (c) of this subsection, the other party must file the objection with the court within 14 days from the date of service of the certificate and must mail or serve true copies of the objections on both the party who filed the certificate and either:

(A) The district attorney; or

(B) If support rights are or have been assigned to the State of Oregon at any time within the last five months or if arrears under the support [order] judgment are so assigned, the Division of Child Support of the Department of Justice.

(e) If objections are filed within the time allowed, the party filing the certificate must file a supplemental certificate that is in a form acceptable to the department and that provides any information concerning the payment history that the department determines necessary.

(f) If objections are filed within the time allowed, the district attorney or the Division of Child Support shall cause the case to be set for a court hearing. At the hearing, the court shall consider the correctness of the certificate but [shall] may not consider objections to the merits of the support [order] judgment or decree. The parties may settle the case by written agreement anytime before the court hearing. Notice of the court hearing shall be served upon the party filing the objections as authorized in ORCP 9 B.

(g) If no objections are filed under this subsection within the time allowed, the amount of arrearage stated in the certificate is the amount owed for purposes of any subsequent action. The district attorney or the Division of Child Support shall file with the court a certificate stating the arrearage established under this paragraph.

(3) When a request for accounting and distribution services is made under ORS 25.164, [no] an agency or court [shall] may not take or allow any ex parte enforcement action on amounts owed as arrearage from before the time that the Department of Justice commences support accounting and distribution until the amount is established under this section. This subsection does not prohibit or limit any enforcement action on support payments that become due subsequent to the department’s commencement of support accounting and distribution under ORS 25.164.

(4) In any determination under this section, a canceled check, payable to the obligee, indorsed by the obligee or deposited to an account of the obligee, drawn on the account of the obligor and marked as child support shall be prima facie evidence that child support was paid to the obligee in the amount shown on the face of the check. It is immaterial that the check was signed by a person other than the obligor, provided that the person who signed the check was an authorized signatory of checks drawn on the account.

SECTION 8. ORS 25.164 and 25.167 are added to and made a part of ORS 25.010 to 25.243.

SECTION 9. ORS 416.422 is amended to read:

416.422. (1) Past support may not be ordered for any period of time prior to the later of:

[(a) October 1, 1995; or]

[(b)] (a) The date of the most recent application for service from[, or,] the child support program administered under Title IV-D of the Social Security Act; or

(b) In the case of a mandatory referral based on the receipt of public assistance, the date of the last referral to[,] the child support program administered under Title IV-D of the Social Security Act.

[(2) The past support provisions of the amendments to ORS 416.400, 416.415, 416.435 and 416.450 by sections 8, 9, 10 and 11, chapter 514, Oregon Laws 1995, apply only to actions initiated on or after October 1, 1995.]

(2) If the administrator has issued a notice and finding of financial responsibility under ORS 416.415 that includes a statement of past support but the administrator or hearing officer has not issued an order, and a court proceeding that involves the same obligor and child support for the same child is pending or is commenced after the notice is issued, the administrator may certify all matters under the notice to the court for consolidation in the court proceeding. After the matter is certified to the court, the court may, in the same manner as the administrator, order a parent to pay an amount of past support.

(3) If the administrator does not certify the matter to the court under subsection (2) of this section and the court’s judgment, decree or order does not address past support, the administrator or a hearing officer may thereafter issue an order directing a parent to pay an amount of past support.

SECTION 10. The section captions used in this 2003 Act are provided only for the convenience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 2003 Act.

Approved by the Governor May 28, 2003

Filed in the office of Secretary of State May 28, 2003

Effective date January 1, 2004

__________