72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 2110
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Attorney General Hardy
Myers for Department of Justice)
CHAPTER ................
AN ACT
Relating to administration of child support program; creating new
provisions; and amending ORS 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.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 23.160 is amended to read:
23.160. (1) All property, including franchises, or rights or
interest therein, of the judgment debtor, shall be liable to an
execution, except as provided in this section and in other
statutes granting exemptions from execution. If selected and
reserved by the judgment debtor or the agent of the judgment
debtor at the time of the levy, or as soon thereafter before sale
thereof as the same shall be known to the judgment debtor, the
following property, or rights or interest therein of the judgment
debtor, except as provided in ORS 23.220, shall be exempt from
execution:
(a) Books, pictures and musical instruments to the value of
$600.
(b) Wearing apparel, jewelry and other personal items to the
value of $1,800.
(c) The tools, implements, apparatus, team, harness or library,
necessary to enable the judgment debtor to carry on the trade,
occupation or profession by which the judgment debtor habitually
earns a living, to the value of $3,000.
(d) A vehicle to the value of $1,700. As used in this paragraph
'vehicle' includes an automobile, truck, trailer, truck and
trailer or other motor vehicle.
(e) Domestic animals and poultry kept for family use, to the
total value of $1,000 and food sufficient to support such animals
and poultry for 60 days.
(f) Household goods, furniture, radios, a television set and
utensils all to the total value of $3,000, if the judgment debtor
holds the property primarily for the personal, family or
household use of the judgment debtor; provisions actually
provided for family use and necessary for the support of a
householder and family for 60 days and also 60 days' supply of
fuel.
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(g) All property of the state or any county or incorporated
city therein, or of any other public or municipal corporation of
like character.
(h) All professionally prescribed health aids for the debtor or
a dependent of the debtor.
(i) Spousal support, child support, or separate maintenance to
the extent reasonably necessary for the support of the debtor and
any dependent of the debtor.
(j) The debtor's right to receive, or property that is
traceable to, an award under any crime victim reparation law.
(k) The debtor's right to receive, or property that is
traceable to, a payment or payments, not to exceed a total of
$10,000, on account of personal bodily injury of the debtor or an
individual of whom the debtor is a dependent.
(L) The debtor's right to receive, or property that is
traceable to, a payment in compensation of loss of future
earnings of the debtor or an individual of whom the debtor is or
was a dependent, to the extent reasonably necessary for the
support of the debtor and any dependent of the debtor.
(m) Veterans' benefits and loans.
(n) The debtor's right to receive an earned income tax credit
under the federal tax laws and any moneys that are traceable to a
payment of an earned income tax credit under the federal tax
laws.
(o) The debtor's interest, not to exceed $400 in value, in any
personal property. However, this exemption may not be used to
increase the amount of any other exemption.
(2) If the property selected or reserved by the judgment debtor
as exempt is adjudicated by the court out of which the execution
issued to be of a value in excess of that allowed by the
appropriate paragraph of subsection (1) of this section, the
officer making the levy shall proceed to sell such property. Out
of the proceeds of such sale, the officer shall deduct costs of
sale and shall pay to the judgment debtor an amount equivalent to
the value declared to be exempt by any of the paragraphs of
subsection (1) of this section and shall apply the balance of the
proceeds of sale on the execution. No sale shall be made under
such execution unless the highest bid made exceeds the
appropriate exemption claimed and allowed plus costs of sale. If
no bid is received in excess of the value allowed by the
appropriate paragraph of subsection (1) of this section, the
costs of sale shall be borne by the judgment creditor.
(3) If two or more members of a household are judgment debtors,
each judgment debtor shall be entitled to claim the exemptions in
subsection (1)(a), (b), (c), (d), (j), (k) and (L) of this
section in the same or different properties. The exemptions when
claimed for the same property shall be combined at the option of
the debtors.
(4) Notwithstanding any other provision of law { + except ORS
657.855 + }, if a writ of garnishment or other execution is
issued to collect past due support as defined in ORS 18.600, 75
percent of unemployment compensation benefits, workers'
compensation benefits and other benefits paid to the debtor by
the United States, by the state or by a political subdivision of
the state are exempt. { + The exemption related to unemployment
compensation benefits provided by this subsection is subject to
ORS 657.855. + } The exemption provided by this subsection
applies without regard to whether the payment is made on a
periodic basis or in a lump sum, including any lump sum payable
pursuant to a settlement or judgment. Notwithstanding subsection
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(1)(k) of this section, if a payment is made under a settlement
or judgment on account of personal bodily injury and the
garnishment or other execution is issued to collect past due
support as defined in ORS 18.600, the lesser of 75 percent of the
payment or $7,500 is exempt.
SECTION 2. ORS 25.010 is amended to read:
25.010. As used in ORS chapters 25, 107, 109 { - , 110 - }
and 416 and any other statutes providing for support payments or
support enforcement procedures, unless the context requires
otherwise:
(1) 'Administrator' means either the Administrator of the
Division of Child Support of the Department of Justice or a
district attorney, or the administrator's or a district
attorney's authorized representative.
(2) 'Child support rights' means the right to establish or
enforce an obligation imposed or imposable by law to provide
support, including but not limited to medical support and an
unsatisfied obligation to provide support.
(3) 'Department' means the Department of Justice.
(4) 'Disposable income' means that part of the income of an
individual remaining after the deduction from the income of any
amounts required to be withheld by law except laws enforcing
spousal or child support and any amounts withheld to pay medical
or dental insurance premiums.
(5) 'Employer' means any entity or individual who engages an
individual to perform work or services for which compensation is
given in periodic payments or otherwise.
(6) 'Income' is any monetary obligation in excess of $4.99
after the fee described in ORS 25.414 (6) has been deducted that
is in the possession of a third party owed to an obligor and
includes but is not limited to:
(a) Compensation paid or payable for personal services whether
denominated as wages, salary, commission, bonus or otherwise;
(b) Periodic payments pursuant to a pension or retirement
program;
(c) Cash dividends arising from stocks, bonds or mutual funds;
(d) Interest payments;
(e) Periodic payments from a trust account;
(f) Any program or contract to provide substitute wages during
times of unemployment or disability;
(g) Any payment pursuant to ORS chapter 657; or
(h) Amounts payable to independent contractors.
(7) 'Obligee' means a child or caretaker parent or custodian,
spouse, former spouse or other dependent person for whose benefit
a court or the administrator has ordered a payment of support.
(8) 'Obligor' means any person who has been ordered by a court
or the administrator to make payments for the support of a child
or a caretaker parent or custodian, spouse, former spouse or
other dependent person.
(9) 'Order to withhold' means an order or other legal process
that requires a withholder to withhold support from the income of
an obligor.
{ + (10) 'Public assistance' has the meaning given that term
in ORS 416.400. + }
{ - (10) - } { + (11) + } 'Withholder' means any person who
disburses income and includes but is not limited to an employer,
conservator, trustee or insurer of the obligor.
SECTION 3. ORS 25.020, as amended by section 3, chapter 455,
Oregon Laws 2001, section 23, chapter 75, Oregon Laws 2003
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(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:
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(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.
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(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
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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
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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
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(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;
Enrolled House Bill 2110 (HB 2110-B) Page 9
(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. + }
SECTION 7. ORS 25.372 is amended to read:
25.372. ORS 25.372 to 25.427 { - and the amendments to ORS
23.170, 23.175, 23.185 (1999 Edition), 25.010, 25.070, 25.381,
25.384, 29.145 (1999 Edition), 29.147 (1999 Edition), 29.411
(1999 Edition), 29.415 (1999 Edition), 109.015, 238.445, 409.021,
419B.408, 419C.600, 656.234, 657.780, 659.010 (1999 Edition) and
659.121 (1999 Edition) by sections 4 and 22 to 49, chapter 798,
Oregon Laws 1993, - } apply to current support, arrears and
interest on arrears, independently or combined, whether arrears
are owed to an obligee, the state or a foreign jurisdiction.
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; - }
Enrolled House Bill 2110 (HB 2110-B) Page 10
{ - (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. - }
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{ - (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. + }
SECTION 9. ORS 25.414 is amended to read:
25.414. (1) The withholder shall withhold from the obligor's
disposable monthly income, other than workers' compensation under
ORS chapter 656 or unemployment compensation under ORS chapter
657, the amount stated in the order to withhold. The entity
issuing the order to withhold shall compute this amount subject
to the following:
(a) If withholding is for current support only, the amount to
be withheld is the amount specified as current support in the
support order.
(b) If withholding is for current support and there is an
arrearage, the amount to be withheld is 120 percent of the amount
specified as current support in the support order.
(c) If withholding is only for arrearage, the amount to be
withheld is one of the following:
(A) The amount of the last ordered monthly support.
(B) If there is no last ordered monthly support amount, the
monthly support amount used to calculate the arrearage amount
specified in the order or judgment for arrearage.
(C) If there is no last ordered monthly support amount and if
there was no monthly support amount, an amount calculated under
the formula established under ORS 25.275. For purposes of this
subparagraph, this calculation shall be based on the obligor's
current monthly gross income or, if the obligor's current monthly
gross income is not known, the Oregon hourly minimum wage
converted to a monthly amount based upon a 40-hour workweek, zero
income for the obligee, and one joint child, regardless of how
many children the parties may actually have. No rebuttals to this
calculation may be allowed.
(d) Notwithstanding the amount determined to be withheld under
paragraph (c) of this subsection, the obligor must retain
disposable monthly income of at least 160 times the applicable
federal minimum hourly wage prescribed by section 6 (a)(1) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 206) or any future
minimum hourly wages prescribed in that section.
Enrolled House Bill 2110 (HB 2110-B) Page 12
(2) The amount to be withheld from unemployment compensation
under ORS chapter 657 is calculated as follows:
(a) If withholding is for a current support order, regardless
of the existence of arrearage, the amount to be withheld is the
lesser of:
(A) Twenty-five percent of the benefits paid; or
(B) The current monthly support obligation. { + The entity
issuing the order to withhold may convert the monthly support
obligation amount to a percentage to be withheld from each
benefits payment. However, the total amount withheld in one month
may not exceed 25 percent of the benefits paid in that month or
the current monthly support obligation, whichever is less. + }
(b) If withholding is for arrearage only, the amount to be
withheld is the lesser of:
(A) Fifteen percent of the benefits paid; or
(B) The amount of the last ordered monthly support { +
obligation. The entity issuing the order to withhold may convert
the last ordered monthly support obligation amount to a
percentage to be withheld from each benefits payment. However,
the total amount withheld in one month may not exceed 15 percent
of the benefits paid in that month or the amount of the last
ordered monthly support obligation, whichever is less + }.
(c) { + The withholder may not charge or collect a + }
{ - No - } processing fee { - shall be charged or
collected - } when withholding from unemployment compensation.
(3) The amount to be withheld from workers' compensation under
ORS chapter 656 is set forth in ORS 656.234.
(4) Notwithstanding any other provision of this section, when
withholding is from a lump sum payment or benefit, including but
not limited to retroactive workers' compensation benefits, lump
sum retirement plan disbursements or withdrawals, insurance
payments or settlements, severance pay, bonus payments or any
other similar payments or benefits that are not periodic
recurring income, the amount subject to withholding for payment
of a support obligation may not exceed one-fourth of the amount
of the lump sum payment or benefit.
(5) Notwithstanding any other provision of this section,
{ - when withholding is only for arrearage assigned to this or
another state, the Department of Justice - } { + the
administrator + } may set a lesser amount to be withheld if the
obligor demonstrates the withholding is prejudicial to the
obligor's ability to provide for a child the obligor has a duty
to support. The Department of
{ - Human Services - } { + Justice + } shall adopt rules
{ + consistent with federal regulations + } to implement this
subsection.
(6) Except as provided in subsection (2) of this section, the
withholder may deduct from the obligor's disposable income a
monthly processing fee not to exceed $5. The processing fee is in
addition to the amount calculated to be withheld for support,
unless the amount to be withheld for support is the maximum
allowed under subsection (8) of this section, in which case the
fee is deducted from the amount withheld as support.
(7) If there are multiple withholding orders against the same
obligor, the amount to be withheld is the sum of each support
order calculated independently.
(8) No withholding as calculated under this section, including
the processing fee permitted in subsection (6) of this section,
shall exceed 50 percent of the obligor's net disposable income.
The limit established in this subsection applies whenever
Enrolled House Bill 2110 (HB 2110-B) Page 13
withholding is implemented under this section, whether by a
single order or by multiple orders against the same obligor.
(9) When the obligor's income is not sufficient for the
withholder to fully comply with each withholding order, the
withholder shall withhold the maximum amount allowed under this
section. If all withholding orders for a particular obligor are
payable to or through the Department of Justice, the withholder
shall pay to the department { - of Justice - } the income
withheld and the department { - of Justice - } shall determine
priorities for allocating income withheld to multiple child
support cases relative to that obligor. If one or more of the
withholding orders for a particular obligor require payment other
than to or through the department { - of Justice - } , the
withholder shall use the following to determine priorities for
withholding and allocating income withheld to multiple child
support cases:
(a) If the amount withheld from the obligor's income is
sufficient to pay the current support due to each case but is not
enough to fully comply with the withholding order for each case
where past due support is owed, the withholder shall:
(A) Pay to each case the amount of support due for the current
month; and
(B) Pay the remainder of the amount withheld in equal amounts
to each case where { - arrearages are - } { + past due
support is + } owed. However, no case shall receive more than
the total amount of current support and past due support owed to
that case at the time the payment is made.
(b) If the amount withheld is not sufficient to pay the current
support due to each case, each case shall be paid a proportionate
share of the amount withheld. The withholder shall determine this
for each case by dividing the monthly amount ordered as current
support for that case by the combined monthly amount ordered as
current support for all cases relative to the same obligor, and
multiplying this percentage by the total amount withheld.
(10) An order to withhold income is not subject to the
limitations of ORS 23.186.
(11) A withholder shall withhold funds as directed in the order
to withhold, except that when a withholder receives an
income-withholding order issued by another state, the withholder
shall apply the income-withholding law of the state of the
obligor's principal place of employment in determining:
(a) The withholder's fee for processing an income-withholding
order;
(b) The maximum amount permitted to be withheld from the
obligor's income;
(c) The time periods within which the withholder must implement
the income-withholding order and forward the child support
payment;
(d) The priorities for withholding and allocating income
withheld for multiple child support obligees; and
(e) Any withholding terms or conditions not specified in the
order.
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
Enrolled House Bill 2110 (HB 2110-B) Page 14
(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
Enrolled House Bill 2110 (HB 2110-B) Page 15
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:
Enrolled House Bill 2110 (HB 2110-B) Page 16
(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
Enrolled House Bill 2110 (HB 2110-B) Page 17
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.
Enrolled House Bill 2110 (HB 2110-B) Page 18
(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.
Enrolled House Bill 2110 (HB 2110-B) Page 19
(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
Enrolled House Bill 2110 (HB 2110-B) Page 20
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
Enrolled House Bill 2110 (HB 2110-B) Page 21
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.
Enrolled House Bill 2110 (HB 2110-B) Page 22
(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.
Enrolled House Bill 2110 (HB 2110-B) Page 23
(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.
SECTION 15. ORS 109.103 is amended to read:
109.103. { + (1) + } If a child is born out of wedlock and
paternity has been established, either parent may initiate a
civil proceeding to determine the custody or support of the
child. The proceeding shall be brought in the circuit court of
the county in which the child resides or is found or in the
circuit court of the county in which either parent resides. The
parents { - shall - } have the same rights and
responsibilities regarding the custody and support of their child
that married or divorced parents would have, and the provisions
of ORS 107.095 to 107.425 that relate to the custody or support
of children { - shall be applicable - } { + apply + } to the
proceeding.
{ + (2) When a parent initiates a proceeding under this
section and the child support rights of one of the parents or of
the child have been assigned to the state, the parent initiating
the proceeding shall serve, by mail or personal delivery, a copy
Enrolled House Bill 2110 (HB 2110-B) Page 24
of the petition on the Administrator of the Division of Child
Support or on the branch office providing support services to the
county in which the suit is filed. + }
SECTION 16. ORS 416.425 is amended to read:
416.425. (1) Any time support enforcement services are being
provided under ORS 25.080, the { - obligated parent - } { +
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 { - obligated parent - } { +
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 pursuant to 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 { - pursuant to - }
{ + under + } this section { - shall - } { + 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) Except as otherwise provided by ORS 416.400 to 416.470, the
only support payments { - which - } { + that + } may be
modified are the monthly future support payments.
(6) The party requesting modification { - shall have - }
{ + 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
Enrolled House Bill 2110 (HB 2110-B) Page 25
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 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 419, 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.
Enrolled House Bill 2110 (HB 2110-B) Page 26
(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 419,
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
Enrolled House Bill 2110 (HB 2110-B) Page 27
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.
Enrolled House Bill 2110 (HB 2110-B) Page 28
(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.
SECTION 18. ORS 419B.406 is amended to read:
419B.406. When a child is in the legal custody of the
Department of Human Services and { - such - } { + the + }
child is the beneficiary of an { - existing - } order of
support in a decree of dissolution or other order and the
department is required to provide financial assistance for the
care and support of { - such - } { + the + } child, the
department shall be assignee of and subrogated to
{ - such - } { + the + } child's proportionate share of any
such support obligation including sums that have accrued whether
or not the support order or decree provides for separate monthly
amounts for the support of each of two or more children or a
single monthly gross payment for the benefit of two or more
children, up to the amount of assistance provided by the
department. The assignment shall be as provided in ORS 418.042.
SECTION 19. ORS 419C.597 is amended to read:
419C.597. When a youth offender or other offender is in the
legal or physical custody of the Oregon Youth Authority and the
offender is the beneficiary of an { - existing - } order of
support in a decree of dissolution or other order and the youth
authority is required to provide financial assistance for the
care and support of the offender, the youth authority shall be
assignee of and subrogated to the offender's proportionate share
of any such support obligation including sums that have accrued
whether or not the support order or decree provides for separate
monthly amounts for the support of each of two or more children
or a single monthly gross payment for the benefit of two or more
children, up to the amount of assistance provided by the youth
authority. The assignment shall be as provided in ORS 418.042.
Enrolled House Bill 2110 (HB 2110-B) Page 29
SECTION 20. ORS 657.855 is amended to read:
657.855. (1) Except as provided in this section, benefits due
under this chapter { - shall - } { + may + } not be assigned,
pledged, encumbered, released or commuted and shall, except as
otherwise provided in this chapter, be exempt from all claims of
creditors and from levy, execution and attachment or remedy for
recovery or collection of a debt, which exemption may not be
waived. No agreement by an individual to waive the individual's
rights under this chapter is valid.
(2) The exemption from execution or other process granted under
this section applies to only 75 percent of benefits payable under
this chapter if the execution or other process is issued for a
{ + child + } support obligation or an order or notice entered
pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B or
419C { + and the child support obligation or the order or notice
is being enforced pursuant to a plan approved under Title IV-D of
the Social Security Act + }.
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
Enrolled House Bill 2110 (HB 2110-B) Page 30
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).
SECTION 22. { + (1) The amendments to ORS 25.010 by section 2
of this 2003 Act apply to support enforcement proceedings
initiated and support orders issued before, on or after the
effective date of this 2003 Act.
(2) The amendments to ORS 25.125 by section 5 of this 2003 Act
apply to motions to terminate, vacate or set aside support orders
filed before, on or after the effective date of this 2003 Act.
(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.
(4) The amendments to ORS 25.396 by section 8 of this 2003 Act
apply to requests for exceptions to income withholding filed on
or after the effective date of this 2003 Act.
(5) The amendments to ORS 25.414 by section 9 of this 2003 Act
apply to orders to withhold income issued before, on or after the
effective date of this 2003 Act.
(6) The amendments to ORS 25.610 by section 11 of this 2003 Act
apply to requests made to the Department of Revenue on or after
the effective date of this 2003 Act.
(7) The amendments to ORS 109.103 by section 15 of this 2003
Act apply to proceedings initiated under ORS 109.103 on or after
the effective date of this 2003 Act.
(8) The amendments to ORS 416.425 by sections 16, 16a and 16b
of this 2003 Act apply to motions filed under ORS 416.425 on or
after the effective date of this 2003 Act.
(9) The amendments to ORS 419B.406 and 419C.597 by sections 18
and 19 of this 2003 Act apply to support obligations ordered
before, on or after the effective date of this 2003 Act. + }
Enrolled House Bill 2110 (HB 2110-B) Page 31
----------
Passed by House March 31, 2003
Repassed by House July 1, 2003
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 27, 2003
...........................................................
President of Senate
Enrolled House Bill 2110 (HB 2110-B) Page 32
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled House Bill 2110 (HB 2110-B) Page 33