Chapter 735 Oregon Laws 1999

Session Law

AN ACT

HB 2224

Relating to support enforcement; creating new provisions; amending ORS 18.350, 25.220, 25.287, 25.311, 25.316, 25.317, 25.354, 110.303, 416.400, 416.429 and 416.443 and section 131, chapter 746, Oregon Laws 1997; and repealing ORS 25.361.

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

SECTION 1. ORS 25.287, as amended by section 64, chapter 80, Oregon Laws 1999 (Enrolled Senate Bill 29), is amended to read:

25.287. (1)(a) [If more than two years have elapsed since the entry of a support order under ORS chapter 24, 107, 108, 109 or 416, or ORS 110.300 to 110.441, 419B.400 or 419C.590 and the support obligation is not in substantial compliance with the formula established by this chapter, then the entity providing support enforcement services under ORS 25.080 in regards to the support order may initiate proceedings to modify the support obligation to ensure that the support obligation is in accordance with the formula established by this chapter. The court, the administrator or the hearings officer shall not consider any issue in the proceeding other than when the support obligation became effective and whether it is in substantial compliance with the formula established by this chapter. If the court, the administrator or the hearings officer finds that more than two years have elapsed since the entry of the support order and the support obligation is not in substantial compliance with the formula established by this chapter, the court, the administrator or the hearings officer shall modify the support order so that the amount of support to be paid is in accordance with the formula established by this chapter, whether or not there has been a substantial change of circumstances since the entry of the current support order.] The entity providing support enforcement services under ORS 25.080 may initiate proceedings to modify a support obligation to ensure that the support obligation is in accordance with the formula established by this chapter.

(b) Proceedings under this subsection may occur only after two years have elapsed from the later of the following:

(A) The date the original support obligation took effect;

(B) The date any previous modification of the support obligation took effect; or

(C) The date of any previous review and determination under this subsection that resulted in no modification of the support obligation.

(c) For purposes of paragraph (b) of this subsection, a support obligation or modification takes effect on the first date on which the obligor is to pay the established or modified support amount.

(d) The only issues at proceedings under this subsection are whether two years have elapsed, as described in paragraph (b) of this subsection, and whether the support obligation is in substantial compliance with the formula established by this chapter.

(e) If the court, the administrator or the hearings officer finds that more than two years have elapsed, as described in paragraph (b) of this subsection, the court, the administrator or the hearings officer shall modify the support order to bring the support obligation into substantial compliance with the formula established by this chapter, regardless of whether there has been a substantial change in circumstances since the support obligation was last established, modified or reviewed.

(f) The provisions of this subsection apply to any support obligation established by a support order under ORS chapter 24, 107, 108, 109 or 416 or ORS 110.300 to 110.441, 419B.400 or 419C.590.

(2) The administrator, court or hearings officer may use the provisions of subsection (1) of this section when a support order was entered in another state and registered in Oregon, the provisions of ORS 110.300 to 110.441 apply and more than two years have elapsed [since the entry of the order] as provided in subsection (1)(b) of this section.

(3) Notwithstanding the provisions of this section, proceedings may be initiated at any time to modify a support obligation based upon a substantial change of circumstances under any other provision of law.

(4) The obligee is a party to any action to modify a support obligation under this section.

SECTION 2. The amendments to ORS 25.287 by section 1 of this 1999 Act apply to orders entered before, on or after the effective date of this 1999 Act.

NOTE: Sections 3 and 4 were deleted by amendment. Subsequent sections were not renumbered.

SECTION 5. Section 131, chapter 746, Oregon Laws 1997, is amended to read:

Sec. 131. (1) Notwithstanding the provisions of ORS 25.080, the Department of Human Resources may enter into cooperative agreements with Indian tribes or tribal organizations within the borders of this state, if the Indian tribe or tribal organization demonstrates that the tribe or organization has an established tribal court system or a Court of Indian Offenses with the authority to:

(a) Establish paternity;

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

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

SECTION 6. ORS 18.350 is amended to read:

18.350. (1) Subject to the requirements of this section, from the time of docketing an original or renewed judgment as provided in ORS 18.320, such judgment shall be a lien upon all the real property of the judgment debtor within the county where the same is docketed, or which the judgment debtor may afterwards acquire therein, during the time prescribed in ORS 18.360. Such judgment shall not be a lien upon any real property of the judgment debtor acquired after the effective date of the discharge of the judgment under federal bankruptcy laws. All docketed judgments shall be presumed to have not been discharged until the judgment debtor establishes that the judgment has been discharged.

(2) A judgment lien expires if an appeal is taken from any judgment and a supersedeas undertaking, as defined in ORS 19.005, is filed by the judgment debtor. The clerk shall note the expiration of the lien in the judgment docket. The lien expires when the time expires for the filing of objections to the undertaking, or upon approval of the undertaking by the court, whichever is later.

(3) When the lien of a judgment ceases in the county in which the judgment was originally docketed, it shall cease in every other county in which a certified copy of the judgment or a lien record abstract has been recorded. When such judgment has been fully satisfied, it shall be the responsibility of the judgment creditor to file a full satisfaction in the county in which the judgment was originally docketed. The clerk of the court shall not charge a fee for filing a satisfaction of judgment. Upon satisfaction in full of the judgment, the judgment creditor shall deliver to the judgment debtor an executed satisfaction of the judgment for every county where a certified copy of the judgment or a lien record abstract has been recorded.

(4) Except as provided in subsection (8), [or] (9) or (10) of this section, a judgment does not become a lien on real property of a judgment debtor until a judgment creditor files with the court a lien certificate including all of the following information:

(a) The case number and the court that entered the judgment;

(b) The date the judgment was entered in the register;

(d) The amount of the judgment entered against each judgment debtor;

(e) The names and addresses of all judgment creditors;

(f) The name and address of any attorney or attorneys for the judgment creditors; and

(g) The signature of the judgment creditor filing the lien certificate or the signature of the attorney for the judgment creditor.

(5) The lien certificate required by subsection (4) of this section should also contain the last known address of each judgment debtor, the name of any attorney or attorneys for each judgment debtor, each judgment debtor's driver license number and the name of the state that issued the license, any taxpayer identification number for a judgment debtor, and the name of any governmental body or person, other than the judgment creditor's attorney, who is entitled to any portion of a payment made on the judgment. Creation of a judgment lien is not affected by the failure of a judgment creditor to include any of the information specified in this subsection in the lien certificate.

(6) The lien certificate required by subsection (4) of this section may be filed at the time a judgment is docketed or at any time thereafter. However, the filing of a lien certificate after the date that a judgment is docketed does not operate to extend the period during which the judgment is valid. The clerk of the court shall enter the lien certificate in the register of the court.

(7) The lien certificate required by subsection (4) of this section must be recorded in the County Clerk Lien Record whenever, pursuant to ORS 18.320, a judgment creditor records a certified copy of a judgment or a lien record abstract in any county other than the county where the judgment was originally docketed. The judgment does not become a lien on the real property of a judgment debtor in the other county until a lien certificate containing the information specified in subsection (4) of this section is so recorded.

(8) The lien certificate required by subsection (4) of this section need not be filed for any judgment in a criminal action, as defined by ORS 131.005, as a condition of the judgment becoming a lien on the real property of a judgment debtor.

(9) The lien certificate required by subsection (4) of this section need not be filed for any warrant or order recorded pursuant to ORS 205.125 as a condition of the warrant or order becoming a lien on the real property of a judgment debtor.

(10) The lien certificate required by subsection (4) of this section need not be filed as a condition of a judgment becoming a lien on the real property of a judgment debtor if the judgment is for support payments under ORS 108.010 to 108.550, 110.300 to 110.441 or 419B.400 or 419C.590 or ORS chapter 25, 107, 109 or 416, or the judgment is a foreign judgment, decree or order for support payments filed under ORS 24.105 to 24.175.

SECTION 7. The amendments to ORS 18.350 by section 6 of this 1999 Act apply only to judgments for support payments described in ORS 18.350 (10) entered on or after the effective date of this 1999 Act.

SECTION 7a. If Senate Bill 415 becomes law, sections 6 (amending ORS 18.350) and 7 of this 1999 Act are repealed.

SECTION 8. ORS 25.311 is amended to read:

25.311. (1) After November 4, 1993, and except as otherwise provided in ORS 25.317, when a support order is entered or modified by the Support Enforcement Division, a district attorney, an Employment Department hearings officer or a circuit court, including a juvenile court, the order shall include a provision requiring the obligor to pay support by income withholding regardless of whether support enforcement services are being provided under ORS 25.080. A pleading for the entry or modification of the support order must contain a statement that payment of support under a new or modified order shall be by income withholding and that an exception to payment by income withholding may be granted under the provisions of ORS 25.317.

(2) When an obligor is subject to a support order issued or registered in this state and fails to make payments at least equal to the amount of support payable for one month, a court, the Support Enforcement Division, a district attorney or the Department of Human Resources, whichever is appropriate, shall initiate income withholding. Except as provided by subsection (3) of this section, the court or agency must give advance notice of the withholding as provided by ORS 25.315.

(3) When an arrearage exists and notice of the delinquent amount has been given to the obligor, a court, upon application, shall issue a withholding order upon the ex parte request of a person holding support rights, the Support Enforcement Division or the district attorney.

(4) The obligor may initiate a withholding order, ex parte, at any time by motion to the court or request to the Support Enforcement Division, Department of Human Resources or district attorney. No advance notice under ORS 25.315 is required for withholding initiated under this subsection.

(5)(a) If an obligor is not otherwise subject to withholding, at any time upon the request of the holder of support rights, a court, the Support Enforcement Division or a district attorney, as appropriate, may issue a withholding order if after notice and an opportunity to object has been given to the obligor, a finding is made that it would be in the best interests of the child to do so.

(b) If the obligor has been granted an exception to withholding under ORS 25.317 by a court, the holder of support rights must apply for withholding under this subsection by motion to the court.

(6) A court or agency shall issue an order to withhold when a support order or an arrearage from another jurisdiction is entered in Oregon in accordance with interstate income withholding under ORS 110.300 to 110.441.

NOTE: Sections 9 and 10 were deleted by amendment. Subsequent sections were not renumbered.

SECTION 11. ORS 25.317 is amended to read:

25.317. (1) An obligor who is subject to an order to withhold issued under ORS 25.311 (1) may request that withholding be discontinued or not initiated if:

(a) All arrearages are paid in full;

(b) The obligor has [not] complied with the terms of a previously [been granted an] 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.

(2)(a) The entity to whom an obligor makes a request under subsection (1) of this section is:

(A) The district attorney or the Support Enforcement Division, 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 Support Enforcement Division only if the district attorney or Support Enforcement Division is enforcing the spousal support order under ORS 25.080 (4)(c) or (d). In all other cases, the obligor shall make the request to the circuit court.

(c) Appeal of a decision of the district attorney or the Support Enforcement Division is to the circuit court for a hearing under ORS 183.484.

[(2)] (3) If money is owed to the state under the support order which 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.

[(3)] (4) 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 arrears.

(5) Withholding may be terminated only if the conditions set forth in this section are met.

SECTION 12. ORS 25.316 is amended to read:

25.316. (1) An obligor must contest an order to withhold initiated under ORS 25.311 within 14 days from the date of the advance notice issued under ORS 25.315 or within 14 days from the date income is first withheld pursuant to the withholding order. The obligor may not contest an order to withhold issued under ORS 25.311 (5).

(2) The only basis for contesting the notice is a mistake of fact. "Mistake of fact" means an error in the amount of current support or arrearages, or an error in the identity of the obligor. Payment of all arrearages shall not be the sole basis for not implementing withholding.

(3) If the order to withhold was issued by a court, the obligor must contest the order to withhold in the court that issued the order.

(4) If the order to withhold was issued pursuant to a request for enforcement under ORS 25.080, the obligor may contest the order to withhold to the district attorney or the Support Enforcement Division. The district attorney or the Support Enforcement Division need not provide an opportunity for a contested case administrative hearing under ORS 183.310 to 183.550 or a hearing in circuit court. Within 45 days after the date of the notice, the district attorney or the Support Enforcement Division shall determine, based on an evaluation of the facts, if the withholding shall occur and notify the obligor of the determination and of the obligor's right to appeal the determination. If the withholding is to occur, the Support Enforcement Division or the district attorney shall send to the obligor the information required by ORS 25.314.

(5) Any appeal of the decision of the district attorney or the Support Enforcement Division made under subsection (4) of this section is to the circuit court for a hearing [de novo] under ORS 183.484.

(6) Unless otherwise ordered by a court, a motion or request to contest an order to withhold or an appeal of the decision of the district attorney or the Support Enforcement Division made under subsection (4) of this section does not act to stay withholding.

NOTE: Sections 13 and 14 were deleted by amendment. Subsequent sections were not renumbered.

SECTION 15. ORS 25.354 is amended to read:

25.354. Notwithstanding [any other provision of ORS 25.311 to 25.318, 25.320 to 25.340,] ORS 25.351 [to 25.367, 25.370] and 656.234, the court upon motion of a party holding the support rights, the Support Enforcement Division or the district attorney, and after a hearing, may order the withholding of more than the amount otherwise authorized by law. In no case may an order require payment of an amount that exceeds the limits imposed by the Consumer Credit Protection Act (15 U.S.C. 1673(b)).

SECTION 16. ORS 110.303 is amended to read:

110.303. As used in ORS 110.300 to 110.441:

(1) "Child" means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual's parent or who is or is alleged to be the beneficiary of a support order directed to the parent.

(2) "Child support order" means a support order for a child, including a child who has attained the age of majority under the law of the issuing state.

(3) "Duty of support" means an obligation imposed or imposable by law to provide support for a child, spouse or former spouse, including an unsatisfied obligation to provide support.

(4) "Home state" means the state in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state in which the child lived from birth with a parent or a person acting as a parent. A period of temporary absence is counted as part of the six-month or other period.

(5) "Income" includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the laws of this state.

(6) "Income-withholding order" means an order or other legal process directed to an obligor's employer or other third party in possession of a monetary obligation owed to an obligor, as defined by the income-withholding law of this state, to withhold support from the income of the obligor.

(7) "Initiating state" means a state in which a proceeding under ORS 110.300 to 110.441 or a law substantially similar to ORS 110.300 to 110.441, the Uniform Reciprocal Enforcement of Support Act or the Revised Uniform Reciprocal Enforcement of Support Act is filed for forwarding to a responding state.

(8) "Initiating tribunal" means the authorized tribunal in an initiating state.

(9) "Issuing state" means the state in which a tribunal issues a support order or renders a judgment determining parentage.

(10) "Issuing tribunal" means the tribunal that issues a support order or renders a judgment determining parentage.

(11) "Law" includes decisional and statutory law and rules and regulations having the force of law.

(12) "Obligee" means:

(a) An individual to whom a duty of support is or is alleged to be owed or in whose favor a support order has been issued or a judgment determining parentage has been rendered;

(b) A state or political subdivision to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee; or

(13) "Obligor" means an individual or the estate of a decedent:

(a) Who owes or is alleged to owe a duty of support;

(b) Who is alleged but has not been adjudicated to be a parent of a child; or

(14) "Register" means to register a support order or judgment determining parentage in the appropriate location for the recording or filing of foreign judgments generally or foreign support orders specifically.

(15) "Registering tribunal" means a tribunal in which a support order is registered.

(16) "Responding state" means a state to which a proceeding is forwarded under ORS 110.300 to 110.441 or a law substantially similar to ORS 110.300 to 110.441, the Uniform Reciprocal Enforcement of Support Act or the Revised Uniform Reciprocal Enforcement of Support Act.

(17) "Responding tribunal" means the authorized tribunal in a responding state.

(18) "Spousal support order" means a support order for a spouse or former spouse of the obligor.

(19) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico or any territory or insular possession subject to the jurisdiction of the United States. The term "state" includes an Indian tribe and includes a foreign jurisdiction that has established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under ORS 110.300 to 110.441.

(20) "Support enforcement agency" means [a public official or agency] the Department of Human Resources, the Administrator of the Support Enforcement Division of the Department of Justice or a district attorney authorized to:

(a) Seek enforcement of support orders or laws relating to the duty of support;

(b) Seek establishment or modification of child support;

(d) Locate obligors or their assets.

(21) "Support order" means a judgment, decree or order, whether temporary, final or subject to modification, for the benefit of a child, a spouse or a former spouse, which provides for monetary support, health care, arrearages or reimbursement, and may include related costs and fees, interest, income withholding, attorney fees and other relief.

(22) "Tribunal" means a court, administrative agency or quasi-judicial entity authorized to establish, enforce or modify support orders or to determine parentage.

NOTE: Sections 17 and 18 were deleted by amendment. Subsequent sections were not renumbered.

SECTION 19. ORS 25.220, as amended by section 23, chapter 704, Oregon Laws 1997, is amended to read:

25.220. (1) In any proceeding to establish, enforce or modify a support obligation, extrinsic evidence of authenticity is not required as a condition precedent to the admission of a [Department of Justice] computer printout [which] of the administrator that may reflect the employment records of a parent, the support payment record of an obligor, the payment of public assistance, the amounts paid, the period during which public assistance was paid, the persons receiving or having received assistance and any other pertinent information, if the printout bears a seal purporting to be that of the [department] administrator and is certified as a true copy by original or facsimile signature of a person purporting to be an officer or employee of the [department] administrator. Printouts certified in accordance with this section constitute prima facie evidence of the existence of the facts stated therein.

(2) To the extent permitted under federal and state law, obligors and obligees, and their attorneys, may obtain copies of such printouts upon request made to the [Department of Justice] administrator.

SECTION 20. ORS 416.400 is amended to read:

416.400. As used in ORS 416.400 to 416.470, unless the context requires otherwise:

(1) "Administrator" means either the Administrator of the Support Enforcement Division[,] of the Department of Justice, or the district attorney or the administrator's or the district attorney's authorized representative.

(2) "Court" shall mean any circuit court of this state and any court in another state having jurisdiction to determine the liability of persons for the support of another person.

(3) "Court order" means any judgment, decree or order of any Oregon court [which] that orders payment of a set or determinable amount of support money by [a] the subject parent and does not include an order or decree in any proceeding in which the court did not order support.

(4) "Department" means the Department of Human Resources of this state or its equivalent in any other state from which a written request for establishment or enforcement of a support obligation is received under ORS 416.415. When support is sought for a youth offender in the physical or legal custody of the Oregon Youth Authority, "department" includes the Oregon Youth Authority.

(5) "Dependent child" means any person under the age of 18 who is not otherwise emancipated, self-supporting, married or a member of the Armed Forces of the United States. "Dependent child" also means a child attending school as defined in ORS 107.108.

[(6) "Director" means the Director of the Department of Human Resources or the director's authorized representative.]

[(7) "Division" means the Support Enforcement Division of the Department of Justice.]

[(8)] (6) "Office" means the office of the Support Enforcement Division or the office of the district attorney.

[(9)] (7) "Parent" means the natural or adoptive father or mother of a dependent child or youth offender. "Parent" also means stepparent when such person has an obligation to support a dependent child pursuant to ORS 109.053.

[(10)] (8) "Past support" means the amount of child support that could have been ordered and accumulated as arrears against a parent for the benefit of a child for any period of time during which the child was not supported by the parent and for which period no support order was in effect.

[(11)] (9) "Public assistance" means any money payments made by the department which are paid to or for the benefit of any dependent child or youth offender, including but not limited to payments made so that food, shelter, medical care, clothing, transportation or other necessary goods, services or items may be provided, and payments made in compensation for the provision of such necessities.

[(12)] (10) "Youth offender" has the meaning given that term in ORS 419A.004.

SECTION 21. ORS 416.429, as amended by section 1, chapter 93, Oregon Laws 1999 (Enrolled House Bill 2228), is amended to read:

416.429. (1) The administrator may issue a notice of intent to establish and enforce arrearages for any support order that is registered, filed or docketed in this state. The notice must be served upon the obligor in the manner prescribed for service of summons in a civil action or mailed to the obligor at the obligor's last-known address by certified mail, return receipt requested. The administrator shall mail the notice to the obligee by regular mail.

(2) The notice shall include:

(a) A statement of the name of the caretaker relative or agency and the name of the dependent child for whom support is to be paid;

(b) A statement of the monthly support the obligor is required to pay under the support order;

(d) A demand that the obligor make full payment to the Department of Justice or the clerk of the court, whichever is appropriate, within 14 days of the receipt or service of the notice;

(e) A statement that if full payment or an objection is not received within 14 days, the administrator will enter an order directing that the amount of the arrearages stated in the notice be entered in the child support accounting record maintained by the Department of Justice;

(f) A statement that if the obligor or the obligee objects to the enforcement of the arrearages, then the objecting party must send to the office issuing the notice, within 14 days of the date of service, a written response that sets forth any objections and requests a hearing;

(g) A statement that the only basis upon which an obligor or an obligee may object to the enforcement of the arrearages is that the amount of the arrearages specified in the notice is incorrect;

(h) A reference to ORS 416.400 to 416.470;

(i) A statement that the obligor and the obligee are responsible for notifying the office of any change of address or employment;

(j) A statement that if the obligor or the obligee has any questions, the obligor or obligee should telephone or visit the appropriate office or consult an attorney; and

(k) Such other information as the administrator finds appropriate.

(3) If a timely written response setting forth objections and requesting a hearing is received by the appropriate office, a hearing shall be held under ORS 416.427.

(4) If no timely written response and request for hearing is received by the appropriate office, the administrator shall enter an order directing that the amount of the arrearages stated in the notice be entered in the child support accounting record maintained by the Department of Justice.

(5) Action to administratively enforce and collect upon the arrearages established under this section may be taken 14 days after service of or receipt or refusal of the notice by the obligor or obligee.

(6) Nothing in this section shall prevent the administrator from using other available enforcement remedies at any time.

SECTION 22. ORS 416.443 is amended to read:

416.443. (1) No later than one year after an order establishing paternity is docketed under ORS 416.440 and if no genetic parentage test has been completed, a party may apply to the [Support Enforcement Division or a district attorney] administrator to have the issue of paternity reopened. Upon receipt of a timely application, the [Support Enforcement Division or the district attorney] administrator shall order:

(a) The mother and the male party to submit to parentage tests; and

(b) The person having physical custody of the child to submit the child to a parentage test.

(2) If a party refuses to comply with an order under subsection (1) of this section, the issue of paternity shall be resolved against that party by an appropriate order of the court upon the motion of the [Support Enforcement Division or the district attorney] administrator. Support paid before an order is vacated under this section shall not be returned to the payer.

SECTION 23. ORS 25.361 is repealed.

Approved by the Governor July 15, 1999

Filed in the office of Secretary of State July 15, 1999

Effective date October 23, 1999

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