Bill Text: OR SB445 | 2011 | Regular Session | Introduced

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Bill Title: Relating to child support arrearages.

Spectrum: Unknown

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB445 Detail]

Download: Oregon-2011-SB445-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 3030

                         Senate Bill 445

Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Senate Interim Committee on
  Judiciary)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Authorizes court to allow credit against child support
arrearages when parties have made oral or written agreement to
reduce child support or when child for whom child support was
ordered has died.

                        A BILL FOR AN ACT
Relating to child support arrearages; creating new provisions;
  and amending ORS 25.167 and 107.135.
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 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) After service of notice on the child in the manner provided
by law for service of a summons, suspend future support for any
child who has ceased to be a child attending school as defined in
ORS 107.108; and
  (e) Set aside, alter or modify any portion of the judgment that
provides for a property award based on the enhanced earning
capacity of a party that was awarded before October 23, 1999. A
property award may be set aside, altered or modified under this
paragraph:
  (A) When the person with the enhanced earning capacity makes a
good faith career change that results in less income;
  (B) When the income of the person with the enhanced earning
capacity decreases due to circumstances beyond the person's
control; or
  (C) Under such other circumstances as the court deems just and
proper.
  (2) When a party moves to set aside, alter or modify the child
support provisions of the judgment:
  (a) The party shall state in the motion, to the extent known:
  (A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving children of
the marriage, including one brought under ORS 25.287, 107.431,
109.100, 125.025, 416.400 to 416.465, 419B.400 or 419C.590 or ORS
chapter 110; and
  (B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving children of the marriage, other than the judgment the
party is moving to set aside, alter or modify.
  (b) The party shall include with the motion a certificate
regarding any pending support proceeding and any existing support
order other than the judgment the party is moving to set aside,
alter or modify. The party shall use a certificate that is in a
form established by court rule and include information required
by court rule and paragraph (a) of this subsection.
  (3) In a proceeding under this section to reconsider the
spousal or child support provisions of the judgment, the
following provisions apply:
  (a) A substantial change in economic circumstances of a party,
which may include, but is not limited to, a substantial change in
the cost of reasonable and necessary expenses to either party, is
sufficient for the court to reconsider its order of support,
except that an order of compensatory spousal support may only be
modified upon a showing of an involuntary, extraordinary and
unanticipated change in circumstances that reduces the earning
capacity of the paying spouse.
  (b) If the judgment provided for a termination or reduction of
spousal support at a designated age in anticipation of the
commencement of pension, Social Security or other entitlement
payments, and if the obligee is unable to obtain the anticipated
entitlement payments, that inability is sufficient change in
circumstances for the court to reconsider its order of support.
  (c) If Social Security is considered in lieu of spousal support
or partial spousal support, the court shall determine the amount
of Social Security the party is eligible to collect. The court
shall take into consideration any pension, retirement or other
funds available to either party to effect an equitable
distribution between the parties and shall also take into
consideration any reduction of entitlement caused by taking early
retirement.
  (4) In considering under this section whether a change in
circumstances exists sufficient for the court to reconsider
spousal or child support provisions of a judgment, the following
provisions apply:
  (a) The court or administrator, as defined in ORS 25.010, shall
consider income opportunities and benefits of the respective
parties from all sources, including but not limited to:
  (A) The reasonable opportunity of each party, the obligor and
obligee respectively, to acquire future income and assets.
  (B) Retirement benefits available to the obligor and to the
obligee.
  (C) Other benefits to which the obligor is entitled, such as
travel benefits, recreational benefits and medical benefits,

contrasted with benefits to which the obligee is similarly
entitled.
  (D) Social Security benefits 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 May 12,
2003.
  (E) Apportioned Veterans' benefits 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 May 12,
2003.
  (b) If the motion for modification is one made by the obligor
to reduce or terminate support, and if the obligee opposes the
motion, the court shall not find a change in circumstances
sufficient for reconsideration of support provisions, if the
motion is based upon a reduction of the obligor's financial
status resulting from the obligor's taking voluntary retirement,
partial voluntary retirement or any other voluntary reduction of
income or self-imposed curtailment of earning capacity, if it is
shown that such action of the obligor was not taken in good faith
but was for the primary purpose of avoiding the support
obligation. In any subsequent motion for modification, the court
shall deny the motion if the sole basis of the motion for
modification is the termination of voluntarily taken retirement
benefits and the obligor previously has been found not to have
acted in good faith.
  (c) The court shall consider the following factors in deciding
whether the actions of the obligor were not in 'good faith':
  (A) Timing of the voluntary retirement or other reduction in
financial status to coincide with court action in which the
obligee seeks or is granted an increase in spousal support.
  (B) Whether all or most of the income producing assets and
property were awarded to the obligor, and spousal support in lieu
of such property was awarded to the obligee.
  (C) Extent of the obligor's dissipation of funds and assets
prior to the voluntary retirement or soon after filing for the
change of circumstances based on retirement.
  (D) If earned income is reduced and absent dissipation of funds
or large gifts, whether the obligor has funds and assets from
which the spousal support could have been paid.
  (E) Whether the obligor has given gifts of substantial value to
others, including a current spouse, to the detriment of the
obligor's ability to meet the preexisting obligation of spousal
support.
  (5) Upon terminating a duty of spousal support, a court shall
make specific findings of the basis for the termination and shall
include the findings in the judgment.
  (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 { + :
  (A) + } The obligor, with the knowledge and consent of the
obligee or pursuant to court order, has physical custody of the
child;   { - and - }
   { +  (B) The obligee and the obligor have agreed, orally or in
writing, to payment of an amount of child support that is less
than the amount ordered in a child support provision of an order
or judgment and the reduced amount is reasonable considering:
  (i) The formula for determining child support awards under ORS
25.275; and
  (ii) The circumstances of the parties and the child at the time
of the parties' agreement; or
  (C) A child for whom child support has been ordered paid was
deceased. + }
  (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 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 an obligor's disability or retirement.
  (8) In a proceeding under subsection (1) of this section, the
court may assess against either party a reasonable attorney fee
and costs for the benefit of the other party. If a party is found
to have acted in bad faith, the court shall order that party to
pay a reasonable attorney fee and costs of the defending party.
  (9) Whenever a motion to establish, modify or terminate child
support or satisfy or alter support arrearages is filed and the
child support rights of one of the parties or of a child of both
of the parties have been assigned to the state, a true copy of
the motion shall be served by mail or personal delivery on the
Administrator of the Division of Child Support of the Department
of Justice or on the branch office providing support services to
the county in which the motion is filed.
  (10)(a) Except as provided in ORS 109.701 to 109.834, the
courts of Oregon, having once acquired personal and subject
matter jurisdiction in a domestic relations action, retain such
jurisdiction regardless of any change of domicile.
  (b) The courts of Oregon, in a proceeding to establish, enforce
or modify a child support order, shall recognize the provisions
of the federal Full Faith and Credit for Child Support Orders Act
(28 U.S.C. 1738B).
  (11) In a proceeding under this section to reconsider
provisions in a judgment relating to custody or parenting time,
the court may consider repeated and unreasonable denial of, or
interference with, parenting time to be a substantial change of
circumstances.
  (12) In a proceeding under this section to reconsider
provisions in a judgment relating to parenting time, the court
may suspend or terminate a parent's parenting time with a child
if the court finds that the parent has abused a controlled
substance and that the parenting time is not in the best
interests of the child.  If a court has suspended or terminated a
parent's parenting time with a child for reasons described in
this subsection, the court may not grant the parent future
parenting time until the parent has shown that the reasons for
the suspension or termination are resolved and that reinstated
parenting time is in the best interests of the child. Nothing in
this subsection limits the court's authority under subsection
(1)(a) of this section.
  (13) In a proceeding under this section to reconsider
provisions in a judgment relating to custody, temporary placement
of the child by the custodial parent pursuant to ORS 109.056 (3)
with the noncustodial parent as a result of military deployment
of the custodial parent is not, by itself, a change of
circumstances.  Any fact relating to the child and the parties
occurring subsequent to the last custody judgment, other than the
custodial parent's temporary placement of the child pursuant to
ORS 109.056 (3) with the noncustodial parent, may be considered
by the court when making a change of circumstances determination.
  (14) Within 30 days after service of notice under subsection
(1) of this section, the party served shall file a written
response with the court.
  (15)(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 2. ORS 25.167 is amended to read:
  25.167. This section establishes procedures for determining the
amount of arrearage and for making a record of arrearage of
support payments. All of the following apply to this section:
  (1) A record of support payment arrearage may be established
by:
  (a) Court order;
  (b) A governing child support judgment issued under ORS 25.091
or 416.448;
  (c) Administrative order issued under ORS 416.427 or 416.429;
  (d) Stipulation of the parties; or
  (e) The procedures under subsection (2) of this section
whenever an existing child or spousal support case enters the
Department of Justice records system without a current payment
record maintained by any court clerk.
  (2) When allowed under subsection (1) of this section,
arrearage amounts may be established under this subsection. All
of the following apply to this subsection:
  (a) The obligee or obligor may execute a certificate in a form
acceptable to the Department of Justice that states the total
amount owed or the payment history in as much detail as is
necessary to demonstrate the periods and amounts of any
arrearage.
  (b) The person making the certificate shall file the original
certificate with the court in which the support judgment was
entered. When a governing child support judgment has been issued,
the person making the certificate shall file the original
certificate with the court that issued the governing child
support judgment.
  (c) The person making the certificate shall serve a true copy
of the certificate upon the other party together with a notice
that the certificate will be the basis of a permanent record
unless the other party files objections.
  (d) For objections to be valid under paragraph (c) of this
subsection, the other party must file the objection with the
court within 14 days from the date of service of the certificate
and must mail or serve true copies of the objections on both the
party who filed the certificate and either:
  (A) The district attorney; or
  (B) If support rights are or have been assigned to the State of
Oregon at any time within the last five months or if arrears
under the support judgment are so assigned, the Division of Child
Support of the Department of Justice.
  (e) If objections are filed within the time allowed, the party
filing the certificate must file a supplemental certificate that
is in a form acceptable to the department and that provides any
information concerning the payment history that the department
determines necessary.
  (f) If objections are filed within the time allowed, the
district attorney or the Division of Child Support shall cause
the case to be set for a court hearing. At the hearing, the court
shall consider the correctness of the certificate   { - but may
not - }  { + and may + } consider objections to the merits of the
support judgment  { +  to the extent set forth in the
objections + }. The parties may settle the case by written
agreement anytime before the court hearing.  Notice of the court
hearing shall be served upon the party filing the objections as
authorized in ORCP 9 B.
  (g) If no objections are filed under this subsection within the
time allowed, the amount of arrearage stated in the certificate
is the amount owed for purposes of any subsequent action. The
district attorney or the Division of Child Support shall file
with the court a certificate stating the arrearage established
under this paragraph.
  (3) When an application for support enforcement services is
made under ORS 25.164, an agency or court may not take or allow
any ex parte enforcement action on amounts owed as arrearage from
before the time that the Department of Justice commences support
accounting and disbursement until the amount is established under
this section. This subsection does not prohibit or limit any
enforcement action on support payments that become due subsequent
to the department's commencement of support accounting and
disbursement under ORS 25.164.
  (4) In any determination under this section, a canceled check,
payable to the obligee, indorsed by the obligee or deposited to
an account of the obligee, drawn on the account of the obligor
and marked as child support shall be prima facie evidence that
child support was paid to the obligee in the amount shown on the
face of the check. It is immaterial that the check was signed by
a person other than the obligor, provided that the person who
signed the check was an authorized signatory of checks drawn on
the account.
  SECTION 3.  { + The amendments to ORS 25.167 and 107.135 by
sections 1 and 2 of this 2011 Act apply to orders for child
support arrearages made on or after the effective date of this
2011 Act. + }
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