72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
SA to A-Eng. HB 2110 (A to RC)
LC 902/HB 2110-A15
SENATE AMENDMENTS TO
A-ENGROSSED HOUSE BILL 2110
(INCLUDING AMENDMENTS TO RESOLVE CONFLICTS)
By COMMITTEE ON JUDICIARY
June 25
On page 1 of the printed A-engrossed bill, delete lines 3 and 4
and insert '23.160, 25.010, 25.020, 25.085, 25.125, 25.275,
25.372, 25.396, 25.414, 25.424, 25.610, 25.710, 107.135, 109.015,
109.103, 416.425, 416.435, 419B.406, 419C.597, 657.855 and
659A.885.'.
On page 3, after line 33, insert:
' (10) 'Public assistance' has the meaning given that term in
ORS 416.400.'.
In line 34, delete '(10)' and insert '(11)'.
Delete lines 36 through 45 and delete pages 4 through 6 and
insert:
' { + SECTION 3. + } ORS 25.020, as amended by section 3,
chapter 455, Oregon Laws 2001, section 23, chapter 75, Oregon
Laws 2003 (Enrolled House Bill 2526), and section 17a, chapter
73, Oregon Laws 2003 (Enrolled House Bill 2340), is amended to
read:
' 25.020. (1) Support payments for or on behalf of any person,
ordered, registered or filed 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 under ORS
418.032, 418.042, 419B.406 or 419C.597;
' (b) As provided by rules adopted under section 2 { + ,
chapter 73, Oregon Laws 2003 (Enrolled House Bill 2340) + }
{ - 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;
' (c) After the assignment of support terminates for as long as
amounts assigned remain owing;
' (d) For any period during which support enforcement services
are provided under ORS 25.080;
' (e) When ordered by the court 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.
' (c) The obligee shall:
' (A) Provide to the department, on a form approved by the
department, information about the agreement with the collection
agency; and
' (B) Promptly notify the department when the agreement is
terminated.
' (d) The collection agency:
' (A) May provide investigative and location services to the
obligee and disclose relevant information from those services to
the department for purposes of providing support enforcement
services under ORS 25.080;
' (B) May not charge interest or a fee for its services
exceeding 20 percent of each support payment received; and
' (C) May not initiate, without written authorization from the
department, any enforcement action relating to support payments
on which support enforcement services are provided by the
department under ORS 25.080.
' (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 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 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.
' (C) Dates and amounts of payments.
' (D) Dates and amounts of disbursements.
' (E) Payee of any disbursements.
' (F) Amount of any arrearage.
' (G) Source of any collection.
' (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 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) The Department of 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 - } { + may + } not be
given for payments not made to the Department of Justice as
required under subsection (1) of this section.
' (12) The Department of Justice shall give credit for payments
not made to the department:
' (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 were
received by the other state; or
' (d) As provided by rule adopted under section 2 { + , chapter
73, Oregon Laws 2003 (Enrolled House Bill 2340) + } { - 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.
' (14) Nothing in this section precludes the Department of
Justice from giving credit for payments not made to the
department 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 Justice shall adopt rules that:
' (a) Direct how support payments that are made through the
department are to be applied and distributed; and
' (b) Are consistent with federal regulations.
' { + SECTION 4. + } ORS 25.085 is amended to read:
' 25.085. (1) In any proceeding under ORS 25.080 { + , + }
service of legal documents upon an obligee may be by regular mail
to the address at which the obligee receives public
assistance { + , + } { - as defined in ORS 411.010, or - } to
an address provided by { - an - } { + the + } obligee on the
obligee's application for child support enforcement services
{ - , - } or to any other address given by the obligee. When
service is authorized by regular mail under this section, proof
of service may be by notation upon the computerized case record
made by the person making the mailing. The notation shall set
forth the address to which the documents were mailed, the date
they were mailed, the description of the documents mailed and the
name of the person making the notation. If the documents are
returned by the postal service as undeliverable as addressed,
that fact shall be noted on the computerized case record. If no
new address for service by regular mail can be obtained, service
shall be by certified mail, return receipt requested or by
personal service upon the obligee.
' (2) Notwithstanding any other provision of this chapter or
ORS chapter 110 or 416, when a case is referred to this state by
a public child support agency of another state for action in this
state, there is no requirement that an obligee, present in the
initiating state and receiving child support enforcement services
from that state, be served in any action taken in this state as a
consequence of the interstate referral. In such cases the
requirement to serve the obligee that would otherwise apply is
satisfied by sending to the initiating agency in the other state,
by regular mail, any documents that would otherwise be served
upon the obligee.
' (3) The appropriate child support agency of the state shall
make any mailings to or service upon the obligee that is required
by this section.
' { + SECTION 5. + } ORS 25.125, as amended by section 72,
chapter 75, Oregon Laws 2003 (Enrolled House Bill 2526), and
section 22a, chapter 73, Oregon Laws 2003 (Enrolled House Bill
2340), is amended to read:
' 25.125. (1) The Department of 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 { + of Justice + } has
returned the excess to the obligor under subsection (1) of this
section;
' (b) The Department { + of Justice + } 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 Justice { + shall + }:
' (A) { - Shall - } Attempt to recover the overpayment if it
is cost-effective to do so;
' (B) { - Shall - } Notify the obligee or the agency to whom
the overpayment was made that the obligee or agency owes money to
the state and specify the amount of the overpayment to be
returned to the department; and
' (C) { - Shall - } Give the obligee opportunity to object.
' (b) If the obligee does not file a timely written objection,
the overpayment amount determined by the department is final and
the provisions of subsection (4) of this section apply. If the
department does not resolve an objection to an obligee's
satisfaction, an administrative law judge { + assigned from the
Office of Administrative Hearings established under section 3,
chapter 849, Oregon Laws 1999, + } 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.
' (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 { + of Justice + } transmits the amount
to the obligee, a child support agency of another state or an
agency of this state; and
' (C) The check is dishonored.
' (b) When a debt is created under paragraph (a) of this
subsection, the obligor or withholder who presented the check
owes the amount of money specified on the check to the state.
' (c) The Department { + of Justice + } shall:
' (A) Attempt to recover the debt if it is cost-effective to do
so;
' (B) Notify the obligor or withholder who presented the check
that the obligor or withholder owes the money to the state; and
' (C) Specify the amount of the debt to be paid to the
department.
' (d) The amount of the debt specified in paragraph (c) of this
subsection is a liquidated debt and a delinquent amount owed to
the state. The Department { + of Justice + } 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 - } { + because of a change in physical custody of the
child + }, the
{ - Department of Justice - } { + administrator + } may
suspend enforcement of the support order if:
' (A) Collection of support would result in a credit balance if
the motion were granted; { - or - } { + and + }
' { - (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. - }
' { + (B) The obligee does not object to suspending
enforcement of the support order.
' (b) The obligee may object under this subsection only on the
grounds that:
' (A) The child is not in the physical custody of the obligor;
' (B) The child is in the physical custody of the obligor
without the consent of the obligee; or
' (C) A credit balance would not result if the motion were
granted. + }
' (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 6. + } ORS 25.275, as amended by section 26a,
chapter 73, Oregon Laws 2003 (Enrolled House Bill 2340), and
section 75, chapter 75, Oregon Laws 2003 (Enrolled House Bill
2526), is amended to read:
' 25.275. (1) The Division of Child Support of the Department
of Justice shall establish by rule a formula for determining
child support awards in any judicial or administrative
proceeding. In establishing the formula, the division shall take
into consideration the following criteria:
' (a) All earnings, income and resources of each parent,
including real and personal property;
' (b) The earnings history and potential of each parent;
' (c) The reasonable necessities of each parent;
' (d) The ability of each parent to borrow;
' (e) The educational, physical and emotional needs of the
child for whom the support is sought;
' (f) The amount of assistance that would be paid to the child
under the full standard of need of the state's IV-A plan;
' (g) Preexisting support orders and current dependents; { +
and + }
' { - (h) Any Social Security or Veterans' benefits paid 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; and - }
' { - (i) - } { + (h) + } Other reasonable criteria that the
division may find to be appropriate.
' (2) The formula described in subsection (1) of this section
must also comply with the following standards:
' (a) The child is entitled to benefit from the income of both
parents to the same extent that the child would have benefited
had the family unit remained intact or if there had been an
intact family unit consisting of both parents and the child.
' (b) Both parents should share in the costs of supporting the
child in the same proportion as each parent's income bears to the
combined income of both parents.
' (3) The formula described in subsection (1) of this section
must be designed to ensure, as a minimum, that the child for whom
support is sought benefits from the income and resources of the
absent parent on an equitable basis in comparison with any other
minor children of the absent parent.
' (4) The { - administrator, an administrative law judge or a
court shall reduce or increase the - } child support obligation
to be paid by the obligor and determined under the formula
described in subsection (1) of this section { + : + }
' { + (a) May be reduced or increased + } in consideration of
the costs of health insurance incurred by the obligor or obligee,
as provided in ORS 25.255.
' { + (b) May be reduced dollar for dollar in consideration
of any Social Security or apportioned Veterans' benefits paid to
the child, or to a representative payee administering the funds
for the child's use and benefit, as a result of the obligor's
disability or retirement.
' (c) Shall be reduced dollar for dollar in consideration of
any Survivors' and Dependents' Educational Assistance under 38
U.S.C. chapter 35 paid to the child, or to a representative payee
administering the funds for the child's use and benefit, as a
result of the obligor's disability or retirement. + } ' .
On page 7, delete lines 1 through 3.
In line 4, delete '6' and insert '7'.
Delete lines 11 through 45 and insert:
' { + SECTION 8. + } ORS 25.396, as amended by section 32,
chapter 73, Oregon Laws 2003 (Enrolled House Bill 2340), is
amended to read:
' 25.396. { - (1) An obligor who is subject to an order to
withhold issued under ORS 25.378 (1) may request that withholding
be discontinued or not initiated if: - }
' { - (a) All arrearages are paid in full; - }
' { - (b) The obligor has complied with the terms of a
previously allowed exemption from withholding; and - }
' { - (c)(A) The obligor and the obligee agree in writing to
an alternative arrangement; or - }
' { - (B) A court or the administrator makes a written finding
and explanation that there is good cause not to require the
withholding. - }
' { + (1) When a court or the administrator enters or
modifies a support order, the court or administrator may grant an
exception to income withholding required under ORS 25.378 if the
court or administrator makes a written finding that there is good
cause not to require income withholding. Good cause exists when
there is proof of timely payment of previously ordered support
and when initiating or continuing income withholding would not be
in the best interests of the child.
' (2) The court or administrator may grant an exception to
income withholding required under ORS 25.378 if:
' (a) The obligor and obligee at any time agree in writing to
an alternative payment method;
' (b) When money is owed to the state under the support order,
the state agrees in writing to the alternative payment method;
' (c) The obligor has paid in full all arrears accrued under
the support order;
' (d) The obligor has complied with the terms of any previous
exception granted under this section; and
' (e) The court or administrator accepts the alternative
payment method.
' (3) Notwithstanding subsection (1) of this section, when
child support is currently assigned to the state and the child is
in the custody of the Oregon Youth Authority or the Department of
Human Services, the state or the obligor may request and the
court or administrator may grant an exception from income
withholding if: + }
' { - (2)(a) The state or the obligor may request that
withholding be discontinued or not initiated if: - }
' { - (A) Child support is currently assigned to the state and
the child is in the custody of the Oregon Youth Authority or the
Department of Human Services; - }
' { - (B) - } { + (a) + } The order to withhold is a barrier
to reunification of the family or rehabilitation of the youth or
is prejudicial to the obligor's ability to provide for another
child to whom a duty of support is owed; and
' { - (C) - } { + (b) + } The state and the obligor
{ - enter into a written alternative payment agreement - } { +
agree in writing to an alternative payment method + }.
' { - (b) The Department of Justice shall adopt rules and
establish procedures to implement this subsection. - }
' { - (3)(a) The entity to whom the state or an obligor makes
a request under subsection (1) or (2) of this section is: - }
' { - (A) The district attorney or the Division of Child
Support, whichever is appropriate, when support services are
being provided by the entity under ORS 25.080; or - }
' { - (B) In all other cases, the circuit court. - }
' { - (b) When the obligor is making a request concerning
withholding for spousal support, the obligor shall make the
request to the district attorney or Division of Child Support
only if the district attorney or Division of Child Support is
enforcing the spousal support order under ORS 25.080 (4)(c) or
(d). In all other cases, the obligor shall make the request to
the circuit court. - }
' { - (c) Appeal of a decision of the district attorney or the
Division of Child Support is to the circuit court for a hearing
under ORS 183.484. - }
' { - (4) If money is owed to the state under the support
order that is the subject of an agreement under subsection
(1)(c)(A) of this section, the state must also be a party to the
written agreement. The written agreement must be reviewed and
entered in the record by the court or administrator. - }
' { - (5) For purposes of subsection (1) of this section, good
cause exists when there is proof of timely payment of previously
ordered support in cases involving the modification of support
orders and there are no arrearages. - }
' { + (4) Exceptions to income withholding described in this
section may be granted by the administrator or the court, except
that when support enforcement services are being provided under
ORS 25.080 the only permissible alternative payment methods are
an electronic funds transfer to the Department of Justice or
another method permitted under rules adopted under this section.
' (5) A party may appeal the administrator's decision granting
or denying an exception under this section to the circuit court
in accordance with ORS 183.484. + }
' (6) { + Income + } withholding may be terminated only if the
conditions set forth in this section are met.
' { + (7) The Department of Justice shall adopt rules and
establish procedures to implement this section. + } ' .
On page 8, delete lines 1 through 31.
In line 32, delete '8' and insert '9'.
On page 9, line 41, delete 'of Human Services' and insert ' of
Justice'.
On page 10, delete lines 42 through 45 and insert:
' { + SECTION 10. + } ORS 25.424 is amended to read:
' 25.424. (1) { - No - } { + A + } withholder is
{ + not + } subject to civil liability to an individual or
agency for conduct or actions in compliance with an order to
withhold if the withholder:
' (a) Is served with an order to withhold under ORS 25.402 that
is regular on its face; and
' (b) Complies with the terms of the order if the order appears
to be in compliance with ORS 25.402.
' (2) The withholder is liable for all amounts that the
withholder fails to withhold or pay as required by the order to
withhold or withholds or pays in excess of the amount required by
the order to withhold. The holder of support rights, the obligor,
the Division of Child Support or a district attorney may bring an
action against the withholder:
' (a) To recover all amounts that the withholder failed to
withhold or pay or withheld or paid in excess of the amount
required;
' (b) To recover an additional amount as damages not to exceed
the amount referred to in paragraph (a) of this subsection; and
' (c) If the failure to withhold was willful or the result of
gross negligence by the withholder, to have an additional amount
imposed as a fine payable to the court not to exceed $250 for
each time the withholder failed to withhold or pay or withheld or
paid an amount exceeding the amount required and to pay
reasonable costs of the action including attorney fees.
' (3)(a) An employer commits an unlawful employment practice if
the employer discharges an employee, refuses to hire an
individual or in any other manner discriminates, retaliates or
takes disciplinary action against an obligor because of the entry
or service of an order to withhold under ORS 25.378 and 25.402 or
because of the obligations or additional obligations that the
order imposes upon the employer. An obligor may bring an action
{ - to recover compensatory damages and a civil penalty not to
exceed $1,000 - } { + under ORS 659A.885 + } or may file a
complaint with the Commissioner of the Bureau of Labor and
Industries in the manner provided by ORS 659A.820. { - The
commissioner may, in addition to the remedies provided for under
ORS chapter 659A, impose a civil penalty not to exceed
$1,000. - } These remedies are in addition to any other remedy
available in law or equity.
' (b) Paragraph (a) of this subsection does not apply to
actions taken by an employer pursuant to any condition of
employment required by law.
' (4) Nothing in ORS 25.372 to 25.427 precludes an action for
contempt for disobedience of a judicial order to withhold.
' { + SECTION 11. + } ORS 25.610, as amended by section 35,
chapter 73, Oregon Laws 2003 (Enrolled House Bill 2340), is
amended to read:
' 25.610. (1) Whenever support enforcement services are being
provided and those services are funded in part through Title IV-D
of the Social Security Act (42 U.S.C. 651, et seq.), the
administrator may request the Department of Revenue, through the
Department of Justice or its designee, to collect past due child
and spousal support from income tax refunds due to the obligor.
The request shall be based upon the payment record maintained
under ORS 25.020.
' (2) If support payment records have not been maintained as
provided in ORS 25.020, then a support payment record may be
established under ORS 25.164, 25.167 and 416.429.
' (3) The Department of Justice shall adopt rules:
' (a) Setting out additional criteria for requests under
subsection (1) of this section; and
' (b) Directing how any support obligation collected by the
Department of Revenue shall be distributed, consistent with
federal regulations.
' (4) { - The obligor and the obligee must be sent a written
notice of the intent to apply the refund to the obligor's support
obligation. - } { + Before a request is made to the Department
of Revenue under subsection (1) of this section, the Department
of Justice shall provide advance written notice to the obligor
and the obligee of its intent to refer the case to the Department
of Revenue. + } The notice shall inform the parties:
' (a) Of the proposed action;
' (b) Of the { + obligor's + } right to request { - a
hearing to contest - } { + an administrative review of + } the
proposed action; { - and - }
' (c) That { - a hearing - } { + an administrative
review + }, if desired, must be requested { + by the obligor + }
within 30 days { + of the date of the notice; and
' (d) That the only issues that may be considered in the
administrative review are:
' (A) Whether the obligor is the person who owes the support
obligation; and
' (B) Whether the amount shown as the past due support is
correct + }.
' (5) { - Hearings - } { + An administrative review + }
must be requested within 30 days. At the { - hearing, no - }
{ + administrative review, an + } issue may { + not + } be
considered if it was previously litigated or if the obligor
failed to exercise rights to appear and be heard or to appeal a
decision that resulted in the accrual of the arrearage being used
as a basis for a request under { + subsection (1) of + } this
section.
' (6) When the Department of Revenue has been requested to
collect past due child and spousal support from income tax
refunds due to the obligor, the Department of Revenue may not
allow the obligor to apply any income tax refund to future taxes
of the obligor.
' (7) Notwithstanding any other provision of this section, an
obligor who is not delinquent in payment of child or spousal
support may authorize the Department of Revenue, through the
Department of Justice or its designee, to withhold any income tax
refund owing to that obligor for the purpose of applying the
moneys as a credit to the support account maintained by the
Department of Justice.
' { + SECTION 12. + } ORS 25.710 is amended to read:
' 25.710. (1) Notwithstanding ORS 25.080, the district
attorney, except as provided in subsection (2) of this section,
shall continue to enforce support enforcement cases until the
Department of Human Services otherwise directs if:
' (a) The case was being enforced by the district attorney on
October 1, 1985; and
' (b) The case involves any arrearages assigned to any
government agency.
' (2) This section does not apply { - where - }
{ + when + } the obligor or beneficiary of the support decree or
order is receiving any of the following:
' (a) { - General or - } Public assistance { - as defined
in ORS 411.010 - } ; or
' (b) Care, support or services under ORS 418.015.
' { + SECTION 13. + } 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 - } { + any
portion + } 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 { +
provisions + }, { - 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 - } { + any
portion + } 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 - } { + paid to a child, or to a
representative payee administering the funds for the child's use
and benefit, as a result of the obligor'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 - } { + May 12, 2003 + }.
' (E) { + Apportioned + } Veterans' benefits { - received on
behalf of a child due to a parent's - } { + or Survivors' and
Dependents' Educational Assistance under 38 U.S.C. chapter 35
paid to a child, or to a representative payee administering the
funds for the child's use and benefit, as a result of the
obligor'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 - } { + May 12, 2003 + }.
' (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 { + child or + } 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 { + dollar-for-dollar + } credit against child support
arrearages for any { + lump sum + } 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 - } { + an obligor'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 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 providing support services to
the county in which the motion is filed.
' (9)(a) Except as provided in ORS 109.701 to 109.834, the
courts of Oregon, having once acquired personal and subject
matter jurisdiction in a domestic relations action, retain such
jurisdiction regardless of any change of domicile.
' (b) The courts of Oregon, in a proceeding to establish,
enforce or modify a child support order, shall recognize the
provisions of the federal Full Faith and Credit for Child Support
Orders Act (28 U.S.C. 1738B).
' (10) In a proceeding under this section to reconsider
provisions in a decree relating to custody or parenting time, the
court may consider repeated and unreasonable denial of, or
interference with, parenting time to be a substantial change of
circumstances.
' (11) Within 30 days after service of notice under subsection
(1) of this section, the party served shall file a written
response with the court.
' (12)(a) It is the policy of this state:
' (A) To encourage the settlement of cases brought under this
section; and
' (B) For courts to enforce the terms of settlements described
in paragraph (b) of this subsection to the fullest extent
possible, except when to do so would violate the law or would
clearly contravene public policy.
' (b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
' (A) As contract terms using contract remedies;
' (B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
' (C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
' (c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
' (d) Nothing in paragraph (b) or (c) of this subsection limits
a party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
' { + SECTION 13a. + } { + If House Bill 2111 becomes law,
section 13 of this 2003 Act (amending ORS 107.135) is repealed
and ORS 107.135, as amended by section 4, chapter 116, Oregon
Laws 2003 (Enrolled House Bill 2277), and sections 112 and 112a,
chapter ___, Oregon Laws 2003 (Enrolled House Bill 2646), is
amended to read: + }
' 107.135. (1) The court may at any time after a judgment 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 under
subsection (9) of this section:
' (a) Set aside, alter or modify any portion of the judgment
that provides 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 health or life insurance provisions,
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
judgment was given, were not residents of the state, or were
unknown to the court or were erroneously omitted from the
judgment;
' (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 any portion of the judgment
that provides 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) When a party moves to set aside, alter or modify the
child support provisions of the judgment:
' (a) The party shall state in the motion, to the extent known:
' (A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving children of
the marriage, including one brought under ORS 25.287, 107.431,
109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS
chapter 110; and
' (B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving children of the marriage, other than the judgment the
party is moving to set aside, alter or modify.
' (b) The party shall include with the motion a certificate
regarding any pending support proceeding and any existing support
order other than the judgment the party is moving to set aside,
alter or modify. The party shall use a certificate that is in a
form established by court rule and include information required
by court rule and paragraph (a) of this subsection.
' (3) In a proceeding under this section to reconsider the
spousal or child support provisions of the judgment, 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 judgment 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.
' (4) In considering under this section whether a change in
circumstances exists sufficient for the court to reconsider
spousal or child support provisions of a judgment, 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 - } { + paid to a child, or to a
representative payee administering the funds for the child's use
and benefit, as a result of the obligor'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 - } { + May 12, 2003 + }.
' (E) { + Apportioned + } Veterans' benefits { - received on
behalf of a child due to a parent's - } { + or Survivors' and
Dependents' Educational Assistance under 38 U.S.C. chapter 35
paid to a child, or to a representative payee administering the
funds for the child's use and benefit, as a result of the
obligor'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 - } { + May 12, 2003 + }.
' (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.
' (5) 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.
' (6) Any modification of { + child or + } spousal support
granted because of a change of circumstances may be ordered
effective retroactive to the date the motion for modification was
served or to any date thereafter.
' (7) The judgment is final as to any installment or payment of
money that has accrued up to the time the nonmoving party, other
than the state, is served with a motion to set aside, alter or
modify the judgment. The court may not set aside, alter or modify
any portion of the judgment that provides for any payment of
money, either for minor children or for the support of a party,
that has accrued before the motion is served. 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 judgment, during which
the obligor, with the knowledge and consent of the obligee or
pursuant to court order, has physical custody of the child; and
' (b) The court may allow, as provided in the rules of the
Child Support Program, a { + dollar-for-dollar + } credit
against child support arrearages for any { + lump sum + } 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 - }
{ + an obligor's + } disability or retirement.
' (8) 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.
' (9) Whenever a motion to establish, modify or terminate child
support or satisfy or alter support arrearages is filed and 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 providing support services to
the county in which the motion is filed.
' (10)(a) Except as provided in ORS 109.701 to 109.834, 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).
' (11) In a proceeding under this section to reconsider
provisions in a judgment 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.
' (12) Within 30 days after service of notice under subsection
(1) of this section, the party served shall file a written
response with the court.
' (13)(a) It is the policy of this state:
' (A) To encourage the settlement of cases brought under this
section; and
' (B) For courts to enforce the terms of settlements described
in paragraph (b) of this subsection to the fullest extent
possible, except when to do so would violate the law or would
clearly contravene public policy.
' (b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
' (A) As contract terms using contract remedies;
' (B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
' (C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
' (c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
' (d) Nothing in paragraph (b) or (c) of this subsection limits
a party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
' { + SECTION 14. + } ORS 109.015 is amended to read:
' 109.015. If public assistance { - , as defined in ORS
416.400, - } is provided for any dependent child, the Department
of Human Services may initiate proceedings under ORS chapter 23,
107, 108, 109, 110 or 125 or ORS 25.010 to 25.243, 25.378,
25.402, 416.400 to 416.470, 419B.400 or 419C.590 to obtain
support for such child from either or both parents or from any
other person legally responsible for the support of the child,
including a guardian or conservator. In any proceeding under any
statute cited in this section, the obligee is a party.'.
On page 11, delete lines 1 through 35.
In line 36, delete '10' and insert '15'.
On page 12, line 4, delete '11' and insert '16'.
After line 45, insert:
' { + SECTION 16a. + } { + If House Bill 2111 becomes law
and House Bill 2646 does not become law, section 16 of this 2003
Act (amending ORS 416.425) is repealed and ORS 416.425, as
amended by section 4, chapter ___, Oregon Laws 2003 (Enrolled
House Bill 2111), is amended to read: + }
' 416.425. (1) Any time support enforcement services are being
provided under ORS 25.080, the obligor, the obligee, the party
holding the support rights or the administrator may move for the
existing order to be modified under this section. The motion
shall be in writing in a form prescribed by the administrator,
shall set out the reasons for modification and shall state the
telephone number and address of the { - moving - } party
{ + requesting modification + }. The { - motion shall be
served - } { + moving party shall serve the motion + } upon the
obligor, the obligee, the party holding the support rights and
the administrator, as appropriate. The
{ - obligor shall - } { + nonrequesting parties must + }be
served in the same manner as provided for service of the notice
and finding of financial responsibility under ORS 416.415 (1).
{ + Notwithstanding ORS 25.085, + } the { - obligee shall be
served in accordance with ORS 25.085 - } { + requesting party
must be served by first class mail to the requesting party's last
known address + }. The { - parties against whom the motion is
made shall - } { + nonrequesting parties + } have 30 days to
resolve the matter by stipulated agreement or to serve the moving
party by regular mail with a written response setting forth any
objections to the motion and a request for hearing. The hearing
shall be conducted under ORS 416.427.
' (2) When the moving party is other than the administrator and
no objections and request for hearing have been served within 30
days, the moving party may submit a true copy of the motion to
the hearings officer as provided in ORS 416.427, except the
default { - shall - } { + may + } not be construed to be a
contested case as defined in ORS 183.310 to 183.550. Upon proof
of service, the hearings officer shall issue an order granting
the relief sought.
' (3) When the moving party is the administrator and no
objections and request for hearing have been served within 30
days, the administrator may enter an order granting the relief
sought.
' (4) A motion for modification made under this section does
not stay the administrator from enforcing and collecting upon the
existing order unless so ordered by the court in which the order
is docketed.
' (5) An administrative order filed in accordance with ORS
416.440 is a final judgment as to any installment or payment of
money that has accrued up to the time the { - nonmoving - }
{ + nonrequesting + } party is served with a motion to set
aside, alter or modify the judgment. The administrator may not
set aside, alter or modify any portion of the judgment that
provides for any payment of money for minor children that has
accrued before the motion is served. However:
' (a) The administrator 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 obligor, with the knowledge and consent of the
obligee or pursuant to court order, has physical custody of the
child; and
' (b) The administrator may allow 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.
' (6) The party requesting modification has the burden of
showing a substantial change of circumstances or that a
modification is appropriate under the provisions of ORS 25.287.
' (7) An administrative order modifying a court order is not
effective until the administrative order is reviewed and approved
by the court that entered the court order. The court shall make a
written finding on the record that the administrative order
complies with the formula established by ORS chapter 25. The
court may approve the administrative order at any time after the
order is issued. If upon review the court finds that the
administrative order should not be approved, the court shall set
the matter for hearing de novo.
' (8) The obligee is a party to all proceedings under this
section.
' (9) An order entered under this section that modifies a
support order because of the incarceration of the obligor is
effective only during the period of the obligor's incarceration
and for 60 days after the obligor's release from incarceration.
The previous support order is reinstated by operation of law on
the 61st day after the obligor's release from incarceration. An
order that modifies a support order because of the obligor's
incarceration must contain a notice that the previous order will
be reinstated on the 61st day after the obligor's release from
incarceration.
' { + SECTION 16b. + } { + If both House Bill 2111 and House
Bill 2646 become law, section 16 of this 2003 Act (amending ORS
416.425) is repealed and ORS 416.425, as amended by section 4,
chapter ___, Oregon Laws 2003 (Enrolled House Bill 2111), and
section 208a, chapter ___, Oregon Laws 2003 (Enrolled House Bill
2646), is amended to read: + }
' 416.425. (1) Any time support enforcement services are being
provided under ORS 25.080, the obligor, the obligee, the party
holding the support rights or the administrator may move for the
existing order to be modified under this section. The motion
shall be in writing in a form prescribed by the administrator,
shall set out the reasons for modification and shall state the
telephone number and address of the { - moving - } party
{ + requesting modification + }. The { - motion shall be
served - } { + moving party shall serve the motion + } upon the
obligor, the obligee, the party holding the support rights and
the administrator, as appropriate. The
{ - obligor shall - } { + nonrequesting parties must + }be
served in the same manner as provided for service of the notice
and finding of financial responsibility under ORS 416.415 (1).
{ + Notwithstanding ORS 25.085, + } the { - obligee shall be
served in accordance with ORS 25.085 - } { + requesting party
must be served by first class mail to the requesting party's last
known address + }. The { - parties against whom the motion is
made shall - } { + nonrequesting parties + } have 30 days to
resolve the matter by stipulated agreement or to serve the moving
party by regular mail with a written response setting forth any
objections to the motion and a request for hearing. The hearing
shall be conducted under ORS 416.427.
' (2) When the moving party is other than the administrator and
no objections and request for hearing have been served within 30
days, the moving party may submit a true copy of the motion to
the hearings officer as provided in ORS 416.427, except the
default { - shall - } { + may + } not be construed to be a
contested case as defined in ORS 183.310 to 183.550. Upon proof
of service, the hearings officer shall issue an order granting
the relief sought.
' (3) When the moving party is the administrator and no
objections and request for hearing have been served within 30
days, the administrator may enter an order granting the relief
sought.
' (4) A motion for modification made under this section does
not stay the administrator from enforcing and collecting upon the
existing order unless so ordered by the court in which the order
is entered.
' (5) An administrative order filed in accordance with ORS
416.440 is a final judgment as to any installment or payment of
money that has accrued up to the time the { - nonmoving - }
{ + nonrequesting + } party is served with a motion to set
aside, alter or modify the judgment. The administrator may not
set aside, alter or modify any portion of the judgment that
provides for any payment of money for minor children that has
accrued before the motion is served. However:
' (a) The administrator may allow a credit against child
support arrearages for periods of time, excluding reasonable
parenting time unless otherwise provided by order or judgment,
during which the obligor, with the knowledge and consent of the
obligee or pursuant to court order, has physical custody of the
child; and
' (b) The administrator may allow 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.
' (6) The party requesting modification has the burden of
showing a substantial change of circumstances or that a
modification is appropriate under the provisions of ORS 25.287.
' (7) An administrative order modifying a court order is not
effective until the administrative order is reviewed and approved
by the court that entered the court order. The court shall make a
written finding on the record that the administrative order
complies with the formula established by ORS chapter 25. The
court may approve the administrative order at any time after the
order is issued. If upon review the court finds that the
administrative order should not be approved, the court shall set
the matter for hearing de novo.
' (8) The obligee is a party to all proceedings under this
section.
' (9) An order entered under this section that modifies a
support order because of the incarceration of the obligor is
effective only during the period of the obligor's incarceration
and for 60 days after the obligor's release from incarceration.
The previous support order is reinstated by operation of law on
the 61st day after the obligor's release from incarceration. An
order that modifies a support order because of the obligor's
incarceration must contain a notice that the previous order will
be reinstated on the 61st day after the obligor's release from
incarceration.
' { + SECTION 17. + } ORS 416.435 is amended to read:
' 416.435. (1) Except as provided in subsection (2) of this
section, when a response denying paternity and requesting a
hearing is received pursuant to ORS 416.415 { + (3) + }, or
paternity is a valid issue as determined by the administrator
under ORS 416.430, the certification to the circuit court shall
be to the court in the judicial district where the parent or
dependent child resides.
' (2) Notwithstanding subsection (1) of this section, if there
is an Oregon juvenile court case regarding the dependent child,
the matter may be certified to the county { - which - }
{ + that + } has jurisdiction of the juvenile court case.
' (3) The certification shall include true copies of the notice
and finding of financial responsibility, the return of service,
the denial of paternity and request for hearing and any other
relevant papers.
' (4) The court shall set the matter for trial and notify the
parties of the time and place of trial.
' (5) If paternity is established, the monthly support and the
amount of past support to be ordered may be established under ORS
416.427.'.
On page 13, line 1, delete '12' and insert '18'.
In line 11, delete '13' and insert '19'.
In line 21, delete '14' and insert '20'.
After line 31, insert:
' { + SECTION 21. + } ORS 659A.885 is amended to read:
' 659A.885. (1) Any person claiming to be aggrieved by an
unlawful practice specified in subsection (2) of this section may
file a civil action in circuit court. In any action under this
subsection, the court may order injunctive relief and such other
equitable relief as may be appropriate, including but not limited
to reinstatement or the hiring of employees with or without back
pay. A court may order back pay in an action under this
subsection only for the two-year period immediately preceding the
filing of a complaint under ORS 659A.820 with the Commissioner of
the Bureau of Labor and Industries, or if a complaint was not
filed before the action was commenced, the two-year period
immediately preceding the filing of the action. In any action
under this subsection, the court may allow the prevailing party
costs and reasonable attorney fees at trial and on appeal. Except
as provided in subsection (3) of this section:
' (a) The judge shall determine the facts in an action under
this subsection; and
' (b) Upon any appeal of a judgment in an action under this
subsection, the appellate court shall review the judgment
pursuant to the standard established by ORS 19.415 (3).
' (2) An action may be brought under subsection (1) of this
section for the following unlawful practices: ORS 25.424,
399.235, 659A.030, 659A.040, 659A.043, 659A.046, 659A.063,
659A.069, 659A.100 to 659A.145, 659A.150 to 659A.186, 659A.203,
659A.218, 659A.230, 659A.233, 659A.236, 659A.250 to 659A.262,
659A.300, 659A.306, 659A.309, 659A.318 and 659A.421 (1) or (3).
' (3) In any action under subsection (1) of this section
alleging a violation of ORS { + 25.424, + } 659A.040, 659A.069,
659A.100 to 659A.145, 659A.230, 659A.250 to 659A.262, 659A.318 or
659A.421 (1) or (3):
' (a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory damages or
$200, whichever is greater, and punitive damages;
' (b) At the request of any party, the action shall be tried to
a jury;
' (c) Upon appeal of any judgment finding a violation, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1); and
' (d) Any attorney fee agreement shall be subject to approval
by the court.
' (4) In any action under subsection (1) of this section
alleging a violation of ORS 659A.203 or 659A.218, the court may
award, in addition to the relief authorized under subsection (1)
of this section, compensatory damages or $250, whichever is
greater.
' (5) All persons against whom any distinction, discrimination
or restriction on account of race, religion, sex, marital status,
color or national origin has been made by any place of public
accommodation, as defined in ORS 659A.400, by any person acting
on behalf of such place or by any person aiding or abetting such
place or person in violation of ORS 659A.406 may bring an action
against the operator or manager of such place, the employee or
person acting on behalf of such place or the aider or abettor of
such place or person. Notwithstanding subsection (1) of this
section, in an action under this subsection:
' (a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory and punitive
damages;
' (b) The operator or manager of the place of public
accommodation, the employee or person acting on behalf of the
place, and any aider or abettor shall be jointly and severally
liable for all damages awarded in the action;
' (c) At the request of any party, the action shall be tried to
a jury;
' (d) The court shall award reasonable attorney fees to a
prevailing plaintiff;
' (e) The court may award reasonable attorney fees and expert
witness fees incurred by a defendant who prevails only if the
court determines that the plaintiff had no objectively reasonable
basis for asserting a claim or no reasonable basis for appealing
an adverse decision of a trial court; and
' (f) Upon any appeal of a judgment under this subsection, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1).'.
In line 32, delete '15' and insert '22'.
In line 35, delete '3' and insert '5'.
After line 37, insert:
' (3) The amendments to ORS 25.275 and 107.135 by sections 6,
13 and 13a of this 2003 Act apply to child support decrees and
child support decree modifications entered on or after the
effective date of this 2003 Act.'.
In line 38, delete '(3)' and insert '(4)' and delete ' 7' and
insert '8'.
In line 40, delete '(4)' and insert '(5)' and delete ' 8' and
insert '9'.
In line 42, delete '(5)' and insert '(6)' and delete ' 9' and
insert '11'.
In line 44, delete '(6)' and insert '(7)' and delete ' 10' and
insert '15'.
On page 14, line 1, delete '(7)' and insert '(8)' and delete
'section 11' and insert 'sections 16, 16a and 16b'.
In line 3, delete '(8)' and insert '(9)' and delete '12 and 13'
and insert '18 and 19'.
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