72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 2111
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 judgments for support payments; amending ORS 107.135,
108.120, 109.165 and 416.425.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 - } { + under + } subsection (8) of this
section:
(a) Set aside, alter or modify { - so much - } { + any
portion + } of the decree { - as may provide - } { + 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
{ - 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 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;
Enrolled House Bill 2111 (HB 2111-A) Page 1
(B) When the income of the person with the enhanced earning
capacity decreases due to circumstances beyond the person's
control; or
(C) Under such other circumstances as the court deems just and
proper.
(2) In a proceeding under this section to reconsider the
spousal or child support provisions of the decree, the following
provisions apply:
(a) A substantial change in economic circumstances of a party,
which may include, but is not limited to, a substantial change in
the cost of reasonable and necessary expenses to either party, is
sufficient for the court to reconsider its order of support,
except that an order of compensatory spousal support may only be
modified upon a showing of an involuntary, extraordinary and
unanticipated change in circumstances that reduces the earning
capacity of the paying spouse.
(b) If the decree provided for a termination or reduction of
spousal support at a designated age in anticipation of the
commencement of pension, social security or other entitlement
payments, and if the obligee is unable to obtain the anticipated
entitlement payments, that inability is sufficient change in
circumstances for the court to reconsider its order of support.
(c) If social security is considered in lieu of spousal support
or partial spousal support, the court shall determine the amount
of social security the party is eligible to collect. The court
shall take into consideration any pension, retirement or other
funds available to either party to effect an equitable
distribution between the parties and shall also take into
consideration any reduction of entitlement caused by taking early
retirement.
(3) In considering under this section whether a change in
circumstances exists sufficient for the court to reconsider
spousal or child support provisions of a decree, the following
provisions apply:
(a) The court or administrator, as defined in ORS 25.010, shall
consider income opportunities and benefits of the respective
parties from all sources, including but not limited to:
(A) The reasonable opportunity of each party, the obligor and
obligee respectively, to acquire future income and assets.
(B) Retirement benefits available to the obligor and to the
obligee.
(C) Other benefits to which the obligor is entitled, such as
travel benefits, recreational benefits and medical benefits,
contrasted with benefits to which the obligee is similarly
entitled.
(D) Social Security benefits received on behalf of a child due
to a parent's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before March 1,
1999.
(E) Veterans' benefits received on behalf of a child due to a
parent's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before October 23,
1999.
(b) If the motion for modification is one made by the obligor
to reduce or terminate support, and if the obligee opposes the
motion, the court shall not find a change in circumstances
Enrolled House Bill 2111 (HB 2111-A) Page 2
sufficient for reconsideration of support provisions, if the
motion is based upon a reduction of the obligor's financial
status resulting from the obligor's taking voluntary retirement,
partial voluntary retirement or any other voluntary reduction of
income or self-imposed curtailment of earning capacity, if it is
shown that such action of the obligor was not taken in good faith
but was for the primary purpose of avoiding the support
obligation. In any subsequent motion for modification, the court
shall deny the motion if the sole basis of the motion for
modification is the termination of voluntarily taken retirement
benefits and the obligor previously has been found not to have
acted in good faith.
(c) The court shall consider the following factors in deciding
whether the actions of the obligor were not in 'good faith':
(A) Timing of the voluntary retirement or other reduction in
financial status to coincide with court action in which the
obligee seeks or is granted an increase in spousal support.
(B) Whether all or most of the income producing assets and
property were awarded to the obligor, and spousal support in lieu
of such property was awarded to the obligee.
(C) Extent of the obligor's dissipation of funds and assets
prior to the voluntary retirement or soon after filing for the
change of circumstances based on retirement.
(D) If earned income is reduced and absent dissipation of funds
or large gifts, whether the obligor has funds and assets from
which the spousal support could have been paid.
(E) Whether the obligor has given gifts of substantial value to
others, including a current spouse, to the detriment of the
obligor's ability to meet the preexisting obligation of spousal
support.
(4) Upon terminating a duty of spousal support, a court shall
make specific findings of the basis for the termination and shall
include the findings in the judgment order.
(5) Any modification of spousal support granted because of a
change of circumstances may be ordered effective retroactive to
the date the motion for modification was { - filed - }
{ + served + } 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 - } { + the nonmoving party, other than the state,
is served with + } a motion to set aside, alter or modify the
decree { + . + } { - , and - } The court
{ - does not have the power to - } { + may not + } set aside,
alter or modify
{ - such decree, or - } any portion { - thereof, - } { +
of the decree + } that provides for any payment of money, either
for minor children or { + for + } the support of a party, that
has accrued { - prior to the filing of such motion - } { +
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 decree, during which
the { - obligated parent - } { + obligor, with the knowledge
and consent of the obligee or pursuant to court order, + } has
physical custody of the child { - with the knowledge and
consent of the custodial parent - } ; and
(b) The court { - or the administrator, as defined in ORS
25.010, - } may allow, as provided in the rules of the Child
Support Program, a credit against child support arrearages for
any Social Security or veterans' benefits paid retroactively to
Enrolled House Bill 2111 (HB 2111-A) Page 3
the child, or to a representative payee administering the funds
for the child's use and benefit, as a result of a parent's
disability or retirement.
(7) In a proceeding under subsection (1) of this section, the
court may assess against either party a reasonable attorney fee
and costs for the benefit of the other party. If a party is found
to have acted in bad faith, the court shall order that party to
pay a reasonable attorney fee and costs of the defending party.
(8) Whenever a motion to establish, modify or terminate child
support or satisfy or alter support arrearages is filed and the
child support rights of one of the parties or of a child of both
of the parties have been assigned to the state, a true copy of
the motion shall be served by mail or personal delivery on the
Administrator of the Division of Child Support of the Department
of Justice or on the branch office providing support services to
the county in which the motion is filed.
(9)(a) Except as provided in ORS 109.701 to 109.834, the courts
of Oregon, having once acquired personal and subject matter
jurisdiction in a domestic relations action, retain such
jurisdiction regardless of any change of domicile.
(b) The courts of Oregon, in a proceeding to establish, enforce
or modify a child support order, shall recognize the provisions
of the federal Full Faith and Credit for Child Support Orders Act
(28 U.S.C. 1738B).
(10) In a proceeding under this section to reconsider
provisions in a decree relating to custody or parenting time, the
court may consider repeated and unreasonable denial of, or
interference with, parenting time to be a substantial change of
circumstances.
(11) Within 30 days after service of notice under subsection
(1) of this section, the party served shall file a written
response with the court.
(12)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
Enrolled House Bill 2111 (HB 2111-A) Page 4
or to seek enforcement of an ancillary agreement to the order or
judgment.
SECTION 2. ORS 108.120 is amended to read:
108.120. (1) After the hearing of the petition for an order of
support the court shall make an order granting or denying it and
fixing, if allowed, the terms and amount of the support.
(2) The court has the same power to compel the attendance of
witnesses or the production of testimony as in actions and suits,
to make such decree or orders as are equitable in view of the
circumstances of both parties and to punish violations thereof as
other contempts are punished.
(3) The decree or order is a final judgment as to any
installment or payment of money { - which - } { + that + }
has accrued up to the time { - either party makes - } { + the
nonmoving party, other than the state, is served with + } a
motion to set aside, alter or modify the decree or
order { + . + } { - , and - } The court { - does not have
the power to - } { + may not + } set aside, alter or modify
{ - such decree or order, or - } any portion { - thereof,
which - } { + of the decree or order that + } provides for any
payment of money, either for minor children or { + for + } the
support of a party, { - which - } { + that + } has accrued
{ - prior to the filing of such motion - } { + before the
motion is served + }. However, 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 - }
{ + obligor, with the knowledge and consent of the obligee or
pursuant to court order, + } has physical custody of the child
{ - with the knowledge and consent of the custodial parent - } .
SECTION 3. ORS 109.165 is amended to read:
109.165. (1) Upon motion of either party the court may set
aside, alter or modify { - so much - } { + any portion + } of
the decree { - as may provide - } { + that provides + } for
the support of the minor child or child attending school, as
defined in ORS 107.108. As to any installment or payment of money
that has accrued up to the time { - either party files - }
{ + the nonmoving party, other than the state, is served
with + } a motion to set aside, alter or modify the decree, the
decree is final and the court { - does not have power to - }
{ + may not + } change it. However, 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 - }
{ + obligor, with the knowledge and consent of the obligee or
pursuant to court order, + }has physical custody of the child
{ - with the knowledge and consent of the custodial parent - } .
A child attending school is a party for purposes of this section.
(2)(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:
Enrolled House Bill 2111 (HB 2111-A) Page 5
(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 4. 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. The motion shall be served upon the
{ - obligated parent - } { + obligor + }, the obligee, the
party holding the support rights and the administrator, as
appropriate. The obligor shall be served in the same manner as
provided for service of the notice and finding of financial
responsibility under ORS 416.415 (1). The obligee shall be served
in accordance with ORS 25.085. The parties against whom the
motion is made shall 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 - } { + 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 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 may be modified are the
monthly future support payments. - }
{ + (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 party is
Enrolled House Bill 2111 (HB 2111-A) Page 6
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 { - 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
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.
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Passed by House February 25, 2003
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 16, 2003
...........................................................
President of Senate
Enrolled House Bill 2111 (HB 2111-A) Page 7
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled House Bill 2111 (HB 2111-A) Page 8