Bill Text: OR HB2433 | 2013 | Regular Session | Enrolled

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Bill Title: Relating to parties with disabilities in domestic relations proceedings.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Passed) 2013-05-09 - Chapter 72, (2013 Laws): Effective date January 1, 2014. [HB2433 Detail]

Download: Oregon-2013-HB2433-Enrolled.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

                            Enrolled

                         House Bill 2433

Sponsored by Representative GELSER; Representatives DEMBROW,
  FREDERICK, GREENLICK, TOMEI (Presession filed.)

                     CHAPTER ................

                             AN ACT

Relating to parties with disabilities in domestic relations
  proceedings; creating new provisions; and amending ORS 107.105
  and 107.137.

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

  SECTION 1. ORS 107.137 is amended to read:
  107.137. (1) Except as provided in subsection   { - (5) - }
 { + (6) + } of this section, in determining custody of a minor
child under ORS 107.105 or 107.135, the court shall give primary
consideration to the best interests and welfare of the child. In
determining the best interests and welfare of the child, the
court shall consider the following relevant factors:
  (a) The emotional ties between the child and other family
members;
  (b) The interest of the parties in and attitude toward the
child;
  (c) The desirability of continuing an existing relationship;
  (d) The abuse of one parent by the other;
  (e) The preference for the primary caregiver of the child, if
the caregiver is deemed fit by the court; and
  (f) The willingness and ability of each parent to facilitate
and encourage a close and continuing relationship between the
other parent and the child. However, the court may not consider
such willingness and ability if one parent shows that the other
parent has sexually assaulted or engaged in a pattern of behavior
of abuse against the parent or a child and that a continuing
relationship with the other parent will endanger the health or
safety of either parent or the child.
  (2) The best interests and welfare of the child in a custody
matter shall not be determined by isolating any one of the
relevant factors referred to in subsection (1) of this section,
or any other relevant factor, and relying on it to the exclusion
of other factors. However, if a parent has committed abuse as
defined in ORS 107.705, other than as described in subsection
 { - (5) - }   { + (6) + } of this section, there is a rebuttable
presumption that it is not in the best interests and welfare of
the child to award sole or joint custody of the child to the
parent who committed the abuse.
   { +  (3) If a party has a disability as defined by the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.), the court may not consider that party's disability in
determining custody unless the court finds that behaviors or

Enrolled House Bill 2433 (HB 2433-A)                       Page 1

limitations of the party that are related to the party's
disability are endangering or will likely endanger the health,
safety or welfare of the child. + }
    { - (3) - }  { +  (4) + } In determining custody of a minor
child under ORS 107.105 or 107.135, the court shall consider the
conduct, marital status, income, social environment or lifestyle
of either party only if it is shown that any of these factors are
causing or may cause emotional or physical damage to the child.
    { - (4) - }  { +  (5) + } No preference in custody shall be
given to the mother over the father for the sole reason that she
is the mother, nor shall any preference be given to the father
over the mother for the sole reason that he is the father.
    { - (5)(a) - }  { +  (6)(a) + } The court determining custody
of a minor child under ORS 107.105 or 107.135 shall not award
sole or joint custody of the child to a parent if:
  (A) The court finds that the parent has been convicted of rape
under ORS 163.365 or 163.375 or other comparable law of another
jurisdiction; and
  (B) The rape resulted in the conception of the child.
  (b) A denial of custody under this subsection does not relieve
the parent of any obligation to pay child support.
  SECTION 2. ORS 107.105 is amended to read:
  107.105. (1) Whenever the court renders a judgment of marital
annulment, dissolution or separation, the court may provide in
the judgment:
  (a) For the future care and custody, by one party or jointly,
of all minor children of the parties born, adopted or conceived
during the marriage and for minor children born to the parties
prior to the marriage, as the court may deem just and proper
under ORS 107.137. The court may hold a hearing to decide the
custody issue prior to any other issues. When appropriate, the
court shall recognize the value of close contact with both
parents and encourage joint parental custody and joint
responsibility for the welfare of the children.
  (b) For parenting time rights of the parent not having custody
of such children and for visitation rights pursuant to a petition
filed under ORS 109.119. When a parenting plan has been developed
as required by ORS 107.102, the court shall review the parenting
plan and, if approved, incorporate the parenting plan into the
court's final order. When incorporated into a final order, the
parenting plan is determinative of parenting time rights. If the
parents have been unable to develop a parenting plan or if either
of the parents requests the court to develop a detailed parenting
plan, the court shall develop the parenting plan in the best
interest of the child, ensuring the noncustodial parent
sufficient access to the child to provide for appropriate quality
parenting time and ensuring the safety of the parties, if
implicated. The court shall deny parenting time to a parent under
this paragraph if the court finds that the parent has been
convicted of rape under ORS 163.365 or 163.375 or other
comparable law of another jurisdiction and the rape resulted in
the conception of the child. Otherwise, the court may deny
parenting time to the noncustodial parent under this subsection
only if the court finds that parenting time would endanger the
health or safety of the child.  { + In the case of a noncustodial
parent who has a disability as defined by the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), the court may
consider the noncustodial parent's disability in determining
parenting time only if the court finds that behaviors or
limitations related to the noncustodial parent's disability are

Enrolled House Bill 2433 (HB 2433-A)                       Page 2

endangering or will likely endanger the health, safety or welfare
of the child. + } The court shall recognize the value of close
contact with both parents and encourage, when practicable, joint
responsibility for the welfare of such children and extensive
contact between the minor children of the divided marriage and
the parties. If the court awards parenting time to a noncustodial
parent who has committed abuse, other than being convicted for
rape as described in this paragraph, the court shall make
adequate provision for the safety of the child and the other
parent in accordance with the provisions of ORS 107.718 (6).
  (c) For the support of the children of the marriage by the
parties. In ordering child support, the formula established under
ORS 25.275 shall apply. The court may at any time require an
accounting from the custodial parent with reference to the use of
the money received as child support. The court is not required to
order support for any minor child who has become self-supporting,
emancipated or married or for any child who has ceased to attend
school after becoming 18 years of age. A general judgment entered
under this section may include an amount for support as requested
in a petition filed under ORS 107.085 or under a motion for
relief made pursuant to ORS 107.095 (1)(b) for which a limited
judgment was not entered, payment of which commences no earlier
than the date the petition or motion was served on the
nonrequesting party, and the amount shall be considered a request
for relief that has been decided by the general judgment for
purposes of ORS 18.082 (3).
  (d) For spousal support, an amount of money for a period of
time as may be just and equitable for one party to contribute to
the other, in gross or in installments or both. The court may
approve an agreement for the entry of an order for the support of
a party. A general judgment entered under this section may
include an amount for support as requested in a petition filed
under ORS 107.085 or under a motion for relief made pursuant to
ORS 107.095 (1)(b) for which a limited judgment was not entered,
payment of which commences no earlier than the date the petition
or motion was served on the nonrequesting party, and the amount
shall be considered a request for relief that has been decided by
the general judgment for purposes of ORS 18.082 (3). In making
the spousal support order, the court shall designate one or more
categories of spousal support and shall make findings of the
relevant factors in the decision. The court may order:
  (A) Transitional spousal support as needed for a party to
attain education and training necessary to allow the party to
prepare for reentry into the job market or for advancement
therein. The factors to be considered by the court in awarding
transitional spousal support include but are not limited to:
  (i) The duration of the marriage;
  (ii) A party's training and employment skills;
  (iii) A party's work experience;
  (iv) The financial needs and resources of each party;
  (v) The tax consequences to each party;
  (vi) A party's custodial and child support responsibilities;
and
  (vii) Any other factors the court deems just and equitable.
  (B) Compensatory spousal support when there has been a
significant financial or other contribution by one party to the
education, training, vocational skills, career or earning
capacity of the other party and when an order for compensatory
spousal support is otherwise just and equitable in all of the
circumstances. The factors to be considered by the court in

Enrolled House Bill 2433 (HB 2433-A)                       Page 3

awarding compensatory spousal support include but are not limited
to:
  (i) The amount, duration and nature of the contribution;
  (ii) The duration of the marriage;
  (iii) The relative earning capacity of the parties;
  (iv) The extent to which the marital estate has already
benefited from the contribution;
  (v) The tax consequences to each party; and
  (vi) Any other factors the court deems just and equitable.
  (C) Spousal maintenance as a contribution by one spouse to the
support of the other for either a specified or an indefinite
period. The factors to be considered by the court in awarding
spousal maintenance include but are not limited to:
  (i) The duration of the marriage;
  (ii) The age of the parties;
  (iii) The health of the parties, including their physical,
mental and emotional condition;
  (iv) The standard of living established during the marriage;
  (v) The relative income and earning capacity of the parties,
recognizing that the wage earner's continuing income may be a
basis for support distinct from the income that the supported
spouse may receive from the distribution of marital property;
  (vi) A party's training and employment skills;
  (vii) A party's work experience;
  (viii) The financial needs and resources of each party;
  (ix) The tax consequences to each party;
  (x) A party's custodial and child support responsibilities; and
  (xi) Any other factors the court deems just and equitable.
  (e) For the delivery to one party of such party's personal
property in the possession or control of the other at the time of
the giving of the judgment.
  (f) For the division or other disposition between the parties
of the real or personal property, or both, of either or both of
the parties as may be just and proper in all the circumstances.
In determining the division of property under this paragraph, the
following apply:
  (A) A retirement plan or pension or an interest therein shall
be considered as property.
  (B) The court shall consider the contribution of a party as a
homemaker as a contribution to the acquisition of marital assets.
  (C) Except as provided in subparagraph (D) of this paragraph,
there is a rebuttable presumption that both parties have
contributed equally to the acquisition of property during the
marriage, whether such property is jointly or separately held.
  (D)(i) Property acquired by gift to one party during the
marriage and separately held by that party on a continuing basis
from the time of receipt is not subject to a presumption of equal
contribution under subparagraph (C) of this paragraph.
  (ii) For purposes of this subparagraph, 'property acquired by
gift' means property acquired by one party through gift, devise,
bequest, operation of law, beneficiary designation or
inheritance.
  (E) Subsequent to the filing of a petition for annulment or
dissolution of marriage or separation, the rights of the parties
in the marital assets shall be considered a species of
co-ownership, and a transfer of marital assets under a judgment
of annulment or dissolution of marriage or of separation entered
on or after October 4, 1977, shall be considered a partitioning
of jointly owned property.

Enrolled House Bill 2433 (HB 2433-A)                       Page 4

  (F) The court shall require full disclosure of all assets by
the parties in arriving at a just property division.
  (G) In arriving at a just and proper division of property, the
court shall consider reasonable costs of sale of assets, taxes
and any other costs reasonably anticipated by the parties.
  (H)(i) If a party has been awarded spousal support in lieu of a
share of property, the court shall so state on the record and
shall order the obligor to provide for and maintain life
insurance in an amount commensurate with the obligation and
designating the obligee as beneficiary for the duration of the
obligation.
  (ii) If the obligor dies prior to the termination of spousal
support and life insurance is not in force as provided in
sub-subparagraph (i) of this subparagraph, the court may modify
the method of payment of spousal support under the judgment or
order of support from installments to a lump sum payment to the
obligee from the estate of the obligor in an amount commensurate
with the present value of the spousal support at the time of
death.
  (iii) The obligee or attorney of the obligee shall cause a
certified copy of the judgment to be delivered to the life
insurance company or companies.
  (iv) If the obligee or the attorney of the obligee delivers a
true copy of the judgment to the life insurance company or
companies, identifying the policies involved and requesting such
notification under this section, the company or companies shall
notify the obligee, as beneficiary of the insurance policy,
whenever the policyholder takes any action that will change the
beneficiary or reduce the benefits of the policy. Either party
may request notification by the insurer when premium payments
have not been made. If the obligor is ordered to provide for and
maintain life insurance, the obligor shall provide to the obligee
a true copy of the policy. The obligor shall also provide to the
obligee written notice of any action that will reduce the
benefits or change the designation of the beneficiaries under the
policy.
  (g) For the creation of trusts as follows:
  (A) For the appointment of one or more trustees to hold,
control and manage for the benefit of the children of the
parties, of the marriage or otherwise such of the real or
personal property of either or both of the parties, as the court
may order to be allocated or appropriated to their support and
welfare, and to collect, receive, expend, manage or invest any
sum of money awarded for the support and welfare of minor
children of the parties.
  (B) For the appointment of one or more trustees to hold, manage
and control such amount of money or such real or personal
property of either or both of the parties, as may be set aside,
allocated or appropriated for the support of a party.
  (C) For the establishment of the terms of the trust and
provisions for the disposition or distribution of such money or
property to or between the parties, their successors, heirs and
assigns after the purpose of the trust has been accomplished.
Upon petition of a party or a person having an interest in the
trust showing a change of circumstances warranting a change in
the terms of the trust, the court may make and direct reasonable
modifications in its terms.
  (h) To change the name of either spouse to a name the spouse
held before the marriage. The court shall order a change if it is
requested by the affected party.

Enrolled House Bill 2433 (HB 2433-A)                       Page 5

  (i) For a money award for any sums of money found to be then
remaining unpaid upon any order or limited judgment entered under
ORS 107.095. If a limited judgment was entered under ORS 107.095,
the limited judgment shall continue to be enforceable for any
amounts not paid under the limited judgment unless those amounts
are included in the money award made by the general judgment.
  (j) For an award of reasonable attorney fees and costs and
expenses reasonably incurred in the action in favor of a party or
in favor of a party's attorney.
  (2) In determining the proper amount of support and the proper
division of property under subsection (1)(c), (d) and (f) of this
section, the court may consider evidence of the tax consequences
on the parties of its proposed judgment.
  (3) Upon the filing of the judgment, the property division
ordered shall be deemed effective for all purposes. This transfer
by judgment, which shall affect solely owned property transferred
to the other spouse as well as commonly owned property in the
same manner as would a declaration of a resulting trust in favor
of the spouse to whom the property is awarded, is not a taxable
sale or exchange.
  (4) If an appeal is taken from a judgment of annulment or
dissolution of marriage or of separation or from any part of a
judgment rendered in pursuance of the provisions of ORS 107.005
to 107.086, 107.095, 107.105, 107.115 to 107.174, 107.405,
107.425, 107.445 to 107.520, 107.540 and 107.610, the court
rendering the judgment may provide in a supplemental judgment for
any relief provided for in ORS 107.095 and shall provide that the
relief granted in the judgment is to be in effect only during the
pendency of the appeal. A supplemental judgment under this
subsection may be enforced as provided in ORS 33.015 to 33.155
and ORS chapter 18. A supplemental judgment under this subsection
may be appealed in the same manner as provided for supplemental
judgments modifying a domestic relations judgment under ORS
19.275.
  (5) If an appeal is taken from the judgment or other appealable
order in a suit for annulment or dissolution of a marriage or for
separation and the appellate court awards costs and disbursements
to a party, the court may also award to that party, as part of
the costs, such additional sum of money as it may adjudge
reasonable as an attorney fee on the appeal.
  (6) If, as a result of a suit for the annulment or dissolution
of a marriage or for separation, the parties to such suit become
owners of an undivided interest in any real or personal property,
or both, either party may maintain supplemental proceedings by
filing a petition in such suit for the partition of such real or
personal property, or both, within two years from the entry of
the judgment, showing among other things that the original
parties to the judgment and their joint or several creditors
having a lien upon any such real or personal property, if any
there be, constitute the sole and only necessary parties to such
supplemental proceedings. The procedure in the supplemental
proceedings, so far as applicable, shall be the procedure
provided in ORS 105.405 for the partition of real property, and
the court granting the judgment shall have in the first instance
and retain jurisdiction in equity therefor.
  SECTION 3.  { + The amendments to ORS 107.105 and 107.137 by
sections 1 and 2 of this 2013 Act apply to child custody and
parenting time proceedings commenced on or after the effective
date of this 2013 Act. + }
                         ----------

Enrolled House Bill 2433 (HB 2433-A)                       Page 6

Passed by House March 19, 2013

    .............................................................
                             Ramona J. Line, Chief Clerk of House

    .............................................................
                                     Tina Kotek, Speaker of House

Passed by Senate April 30, 2013

    .............................................................
                              Peter Courtney, President of Senate

Enrolled House Bill 2433 (HB 2433-A)                       Page 7

Received by Governor:

......M.,............., 2013

Approved:

......M.,............., 2013

    .............................................................
                                         John Kitzhaber, Governor

Filed in Office of Secretary of State:

......M.,............., 2013

    .............................................................
                                   Kate Brown, Secretary of State

Enrolled House Bill 2433 (HB 2433-A)                       Page 8