Department of Justice, Chapter 137
Rule Caption: Clarifies incarcerated obligors and modifications; clarifies renewal of temporary modifications.
Adm. Order No.: DOJ 6-2012(Temp)
Filed with Sec. of State: 5-24-2012
Certified to be Effective: 5-24-12 thru 11-20-12
Notice Publication Date:
Rules Amended: 137-055-3300, 137-055-3430
Subject: OAR 137-055-3300 is amended to clarify that the provisions of ORS 416.425(12) apply in any case where the administrator modifies an order where the obligor is incarcerated, whether or not the request explicitly states the incarceration as the basis.
OAR 137-055-3430 is amended to clarify that a temporary, employment-related modification entered pursuant to ORS 416.425(13) may be renewed only once, and that a parent whose employment-related income change remains after a renewal might more appropriately pursue a conventional modification.
Rules Coordinator: Lori Worthing—(503) 947-4367
(1) For purposes of establishing or modifying a support order, the following definitions apply:
(a) “Correctional facility” means any place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order, and includes but is not limited to a youth correction facility.
(A) “Correctional facility” applies to a state hospital only as to persons detained therein charged with or convicted of a crime, or detained therein after acquittal of a crime by reason of mental defect;
(B) “Correctional facility” includes alternative forms of confinement, such as house arrest or confinement, where an obligor is not permitted to seek or hold regular employment.
(b) “Incarcerated obligor” means a person who:
(A) Is or may become subject to an order establishing or modifying child support; and
(B) Is, or is expected to be, confined in a correctional facility for at least six consecutive months from the date of initiation of action to establish a support order, or from the date of a request to modify an existing order pursuant to this rule.
(2) For purposes of computing a monthly support obligation for an incarcerated obligor, all provisions of the Oregon child support guidelines, as set forth in OAR 137-050-0700 through 137-050-0765, will apply except as otherwise specified in this rule.
(3) The incarcerated obligor’s income and assets are presumed available to the obligor, unless such income or assets are specifically restricted, assigned, or otherwise inaccessible pursuant to state or federal laws or rules regarding the income and assets of incarcerated obligors.
(4) If the incarcerated obligor has gross income less than $200 per month, the administrator shall presume that the obligor has zero ability to pay support.
(5) If the provisions of section (4) of this rule apply, the administrator will not initiate an action to establish a support obligation if the obligor is an incarcerated obligor, as defined in subsection (1)(b) of this rule, until 61 days after the obligor’s release from incarceration.
(6) The administrator will not initiate an action to modify a support obligation because of incarceration unless the obligor is an incarcerated obligor, as defined in subsection (1)(b) of this rule, and a party to the current order has requested a modification.
(7) An order entered pursuant to ORS 416.425 and this rule, 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.
(a) 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;
(b) Nothing in this rule precludes an obligor from requesting a modification based on a change of circumstances, pursuant to OAR 137-055-3420.
(8) The provisions of this rule do not apply to an obligor who is incarcerated because of nonpayment of support.
ORS 416.455 & 180.345
Stats. Implemented: ORS 416.425
Hist.: AFS 21-2000, f. & cert. ef. 8-1-00; AFS 32-2000, f. 11-29-00, cert. ef. 12-1-00, Renumbered from 461-195-0078; AFS 4-2001, f. 3-28-01, cert. ef. 4-1-01; DOJ 6-2003(Temp), f. 6-25-03, cert. ef. 7-1-03 thru 12-28-03, Renumbered from 461-200-3300; DOJ 10-2003, f. 9-29-03, cert. ef. 10-1-03; DOJ 7-2004, f. 3-30-04, cert. ef. 4-1-04; DOJ 12-2004, f. & cert. ef. 10-1-04; DOJ 1-2010, f. & cert. ef. 1-4-10; DOJ 6-2012(Temp), f. & cert. ef. 5-24-12 thru 11-20-12
Substantial Change in Circumstance Review and Modification of Child Support Order Amounts
(1) For purposes of this rule:
(a) The definitions provided in ORS 25.321, OAR 137-050-0750 and 137-055-3420 apply;
(b) A “temporary modification” is an order entered under ORS 416.425(13), which suspends and temporarily modifies a support order based on a party’s employment-related change of income; and
(c) “Employment-related change of income” includes but is not limited to reduced work hours, unpaid furloughs, loss of job and wage reductions. Employment-related change of income does not include a voluntary reduction of income or self-imposed curtailment of earning capacity, if it is shown that such action was not taken in good faith but was for the primary purpose of avoiding the support obligation. A party’s employment-related change of income is considered to take place “during a period of significant unemployment” even if the change occurred prior to the Attorney General’s determination under ORS 416.425(13)(b), as long as the effects of the employment-related change of income continue into the time period covered by the determination.
(2) Notwithstanding OAR 137-055-3420, proceedings may be initiated at any time to review and modify a support obligation based upon a substantial change in circumstance.
(3) The administrator will conduct a review based upon a request for a change of circumstance modification when:
(a) Oregon has jurisdiction to modify;
(b) The administrator:
(A) Receives a request for modification based upon a change of circumstance and at least 60 days have passed from the date the existing support order was entered, except for those cases where a review is requested pursuant to paragraphs (3)(c)(H) or (I);
(B) Determines that a temporary modification should be initiated based on receipt of a request from a party who has experienced an employment-related change of income; or
(C) Determines that a modification should be initiated based on the administrator’s own motion; and
(c) At least one of the following criteria are met:
(A) A change in the written parenting time agreement or order has taken place;
(B) The financial or household circumstances of one or more of the parties are different now than they were at the time the order was entered;
(C) Social Security benefits received on behalf of a child due to a parent’s disability or retirement were not previously considered in the order or they were considered in an action initiated before May 12, 2003;
(D) Veterans’ benefits received on behalf of a child due to a parent’s disability or retirement were not previously considered in the order or they were considered in an action initiated before May 12, 2003;
(E) Survivors and Dependents Education Assistance benefits received by the child or on behalf of the child were not previously considered in the order;
(F) Since the date of the last order, the obligor has been incarcerated, as defined in OAR 137-055-3300;
(G) The needs of the child(ren) have changed;
(H) There is a need to add or change medical support provisions for a child;
(I) A change in the physical custody of a minor child has taken place;
(J) An order is being modified to include a subsequent child of the parties or to remove a child of the parties;
(K) A child between 18 and 20 years old does not qualify as a child attending school under ORS 107.108 and OAR 137-055-5110 and, pursuant to ORS 107.108(10), tiered order provisions must be added, removed or changed. Tiered order has the meaning given in OAR 137-055-1020,
(d) And the requesting party (if other than the administrator):
(A) Completes a written or verbal request for modification based upon a substantial change of circumstance;
(B) Pursuant to ORS 416.425, provides appropriate documentation for the criteria in subsection (c) of this section showing that a substantial change of circumstance has occurred; and
(C) Completes a Uniform Income Statement or Uniform Support Affidavit or, if a temporary modification, provides employment status and income information sufficient to permit the administrator to have a reasonable basis to make a determination.
(4) Sections (5) through (9) do not apply to temporary modifications.
(5) Upon receipt of a request for a review and modification, or upon the administrator’s own initiative, the administrator will notify the parties of the review in writing, allowing the parties 30 days to provide information which may affect the support calculation.
(6) A request for review will be granted unless:
(a) The conditions in section (3) have not been met; or
(b) The review was requested due to one of the criteria in paragraphs (3)(c)(A) through (3)(c)(G), and the order is in substantial compliance with the guidelines. The determination of substantial compliance will be made as outlined in OAR 137-055-3420(1)(d), except as provided in section (7).
(7) The provisions of subsection (6)(b) do not apply if the new calculation:
(a) Includes consent by the parties as provided in OAR 137-050-0765;
(b) Includes compelling factors in the reasonable-in-cost limitation, as provided in OAR 137-050-0750(2)(a);
(c) Includes application of rebuttals, as provided in OAR 137-050-0760; or
(d) Is for a modification to consider receipt of Social Security or Veterans’ benefits as provided in paragraphs (3)(c)(C) or (D).
(8) If the request for review is granted, the administrator will advise the parties of the presumed correct support amount. Notification may be by motion for modification and will include a request for hearing form. If there is an adult child on the case, the proposed modification will be a tiered order as defined in OAR 137-055-1020.
(9) If the order is found to be in substantial compliance, and at least 35 months have passed since the date the most recent support order took effect, the administrator will complete the request as provided in OAR 137-055-3420(9).
(10) Sections (11) and (12) apply only to temporary modifications.
(11) The administrator will, to the extent possible, gather information from the parties which could affect the support calculation by phone or other electronic means, including facsimile and e-mail.
(12) The administrator will advise the parties of the presumed correct support amount and may seek a consent order. Notification may be by motion for modification and will include a request for hearing form.
(13) If the circumstances under which a temporary modification was issued have not changed and the administrator receives a request from one of the parties prior to the order expiring, the administrator may renew the order for one additional six-month period. The administrator will not renew a temporary modification more than once. If the circumstances have not changed at the time the renewal expires, the administrator will tell the parties that they may request a change of circumstances modification.
(14) If a request under this rule is denied, the administrator will notify the requesting party of the denial in writing within 30 days and inform the party of their right to file a motion for modification as provided in ORS 416.425. The administrator will advise the party on how to obtain the Oregon Judicial Department packet that has been prescribed for this purpose.
(15) No provision of this rule precludes the parties from obtaining the services of private legal counsel at any time to pursue modification of the support order pursuant to all applicable laws.
(16) If a request for review and modification is received because a change in the physical custody of the minor child(ren) has taken place, a party may also request a credit back to the date the change in physical custody took place in accordance with OAR 137-055-5510.
ORS 180.345 & 416.455
Stats. Implemented: ORS 25.080, 25.287, 25.321 - 25.343, 107.108,107.135, 416.425
Hist.: DOJ 10-2004, f. & cert. ef. 7-1-04; DOJ 16-2004, f. 12-30-04, cert. ef. 1-3-05; DOJ 4-2005, f. & cert. ef. 4-1-05; DOJ 8-2005(Temp), f. & cert. ef. 9-1-05 thru 2-17-06; DOJ 1-2006, f & cert. ef. 1-3-06; DOJ 5-2006, f. 6-29-06, cert. ef. 7-3-06; DOJ 8-2007, f. 9-28-07, cert. ef. 10-1-07; DOJ 4-2009(Temp), f. 5-6-09, cert. ef. 5-7-09 thru 11-1-09; DOJ 6-2009(Temp), f. & cert. ef. 5-14-09 thru 11-1-09; DOJ 13-2009, f. & cert. ef. 10-30-09; DOJ 13-2010(Temp), f. & cert. ef. 7-1-10 thru 12-27-10; DOJ 19-2010, f. 12-20-10, cert. ef. 12-27-10; DOJ 13-2011, f. 12-30-11, cert. ef. 1-3-12; DOJ 6-2012(Temp), f. & cert. ef. 5-24-12 thru 11-20-12