Chapter 1030 Oregon Laws 1999

Session Law

AN ACT

HB 3361

Relating to child support; creating new provisions; and amending ORS 25.275 and 107.135.

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

SECTION 1. ORS 25.275 is amended to read:

25.275. (1) The Support Enforcement Division 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;

(d) The ability of each parent to borrow;

(e) The educational, physical and emotional needs of the child for whom the support is sought;

(f) The amount of assistance which 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

[(h)] (i) Other reasonable criteria which 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 insure, 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 of the Support Enforcement Division, an administrative hearings officer 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 in consideration of the costs of health insurance incurred by the obligor or obligee, as provided in ORS 25.255.

SECTION 2. ORS 107.135 is amended to read:

107.135. (1) The court has the power 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 Support Enforcement Division when required pursuant to subsection (8) of this section, to:

(a) Set aside, alter or modify so much 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, 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;

(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. 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

(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.

(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 the effective date of this 1999 Act.

(b) If the motion for modification is one made by the obligor to reduce or terminate support, and if the obligee opposes the motion, the court shall not find a change in circumstances sufficient for reconsideration of support provisions, if the motion is based upon a reduction of the obligor's financial status resulting from the obligor's taking voluntary retirement, partial voluntary retirement or any other voluntary reduction of income or self-imposed curtailment of earning capacity, if it is shown that such action of the obligor was not taken in good faith but was for the primary purpose of avoiding the support obligation. In any subsequent motion for modification, the court shall deny the motion if the sole basis of the motion for modification is the termination of voluntarily taken retirement benefits and the obligor previously has been found not to have acted in good faith.

(c) The court shall consider the following factors in deciding whether the actions of the obligor were not in "good faith":

(A) Timing of the voluntary retirement or other reduction in financial status to coincide with court action in which the obligee seeks or is granted an increase in spousal support.

(B) Whether all or most of the income producing assets and property were awarded to the obligor, and spousal support in lieu of such property was awarded to the obligee.

(C) Extent of the obligor's dissipation of funds and assets prior to the voluntary retirement or soon after filing for the change of circumstances based on retirement.

(D) If earned income is reduced and absent dissipation of funds or large gifts, whether the obligor has funds and assets from which the spousal support could have been paid.

(E) Whether the obligor has given gifts of substantial value to others, including a current spouse, to the detriment of the obligor's ability to meet the preexisting obligation of spousal support.

(4) Upon terminating a duty of spousal support, a court shall make specific findings of the basis for the termination and shall include the findings in the judgment order.

(5) Any modification of 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 which 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, which provides for any payment of money, either for minor children or the support of a party, which 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 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.

(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 public assistance, as defined in ORS 416.400, is being granted to or on behalf of a dependent child or children, natural or adopted, of the parties, a true copy of the motion shall be served by mail or personal delivery on the Administrator of the Support Enforcement Division of the Department of Justice, or on the branch office of the division providing service to the county in which the motion is filed.

(9) The courts of Oregon, having once acquired personal and subject matter jurisdiction over a party in a domestic relations action, retain such jurisdiction regardless of any change of domicile.

(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 must file a written response with the court.

SECTION 3. The amendments to ORS 25.275 and 107.135 by sections 1 and 2 of this 1999 Act apply to child support decrees and child support decree modifications ordered on or after the effective date of this 1999 Act.

SECTION 4. Section 5 of this 1999 Act is added to and made a part of ORS chapter 25.

SECTION 5. The court may order that the portion of a security deposit made under ORS 135.265 that would otherwise be returned to the person who made the deposit or the amount of child support arrearages, whichever is less, be paid to an obligee or the Support Enforcement Division of the Department of Justice if:

(1) The defendant is an obligor who owes child support arrearages;

(2) The obligee, the district attorney or the division has filed a motion requesting the court to make such an order;

(3) The obligee, the district attorney or the division has served the defendant with a copy of the motion;

(4) The defendant has an opportunity to respond and request a hearing; and

(5) The court has determined that such an order is appropriate.

Approved by the Governor August 20, 1999

Filed in the office of the Secretary of State August 23, 1999

Effective date October 23, 1999

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