69th OREGON LEGISLATIVE ASSEMBLY--1997 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 1155
House Bill 2261
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for the Appellate Practice section of the Oregon
State Bar)
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.
Specifies procedure for seeking stays of judgment in domestic
relations cases during appeal. Provides procedures for obtaining
stay of part of judgment. Allows motion for modification of
judgment in certain cases while appeal pending. Specifies
procedure for appellate review of certain temporary orders.
A BILL FOR AN ACT
Relating to appeals; creating new provisions; and amending ORS
19.033 and 107.105.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this Act are added to and
made a part of ORS 19.074 to 19.210. + }
SECTION 2. { + (1) The provisions of ORS chapter 19 relating
to stays on appeal apply to a domestic relations judgment.
(2) If an appellant seeks a stay of only specific provisions of
a domestic relations judgment, the motion seeking the stay must
identify those provisions of the judgment that are to be stayed.
If the court allows a stay of only certain provisions of the
judgment, the order of the court must specifically indicate those
provisions. If a supersedeas undertaking is filed with the court
for the purpose of staying specific provisions of the judgment,
the undertaking must indicate the specific provisions of the
judgment covered by the undertaking. A stay of each specific
provision of a domestic relations judgment may be granted only
if:
(a) The specific provision is subject to stay under the
provisions of ORS chapter 19; and
(b) All requirements of ORS chapter 19 for a stay of the
provision are satisfied.
(3) For the purposes of this section, 'domestic relations
judgment' means a judgment or decree entered in proceedings under
ORS chapters 107, 108, 109 and 110. + }
SECTION 3. { + (1) Any motion that requires a showing of a
change of circumstances before the court may modify a judgment or
decree, including a motion to reconsider the spousal or child
support provisions of a decree pursuant to ORS 107.135, may be
filed with the trial court while an appeal from the judgment or
decree is pending before an appellate court. The filing of a
motion under this subsection does not affect the right of the
appellant to pursue the appeal of the judgment or decree.
(2) The trial court in its discretion may proceed to hear and
decide a motion under this section or may hold the motion in
abeyance pending disposition of the appeal.
(3) Pursuant to the provisions of ORS 19.010 (2)(c), a modified
judgment or decree entered after the court's decision on a motion
under this section shall be deemed a judgment separate from the
decree or judgment sought to be modified and may be appealed
separately from the decree or judgment sought to be modified. The
appellate court in its discretion may consolidate an appeal from
a judgment under this section with the pending appeal of the
other judgment or decree, may direct that both appeals be heard
at the same time or may allow the appeals to proceed
independently of one another. + }
SECTION 4. ORS 19.033 is amended to read:
19.033. (1) When the notice of appeal has been served and filed
as provided in ORS 19.023, 19.026 and 19.029, the Supreme Court
or the Court of Appeals shall have jurisdiction of the cause,
pursuant to rules of the court, but the trial court shall have
such powers in connection with the appeal as are conferred upon
it by law and shall retain jurisdiction for the purpose of
allowance and taxation of attorney fees, costs and disbursements
or expenses pursuant to rule or statute. If the trial court
allows and taxes attorney fees, costs and disbursements or
expenses after the notice of appeal has been served and filed,
any necessary modification of the appeal shall be pursuant to
rules of the appellate court.
(2) The following requirements of ORS 19.023, 19.026 and 19.029
are jurisdictional and may not be waived or extended:
(a) Service of the notice of appeal on all parties identified
in the notice of appeal as adverse parties or, if the notice of
appeal does not identify adverse parties, on all parties who have
appeared in the action, suit or proceeding, as provided in ORS
19.023 (2)(a), within the time limits prescribed by ORS 19.026.
(b) Filing of the original of the notice of appeal with the
Court of Appeals as provided in ORS 19.023 (3), within the time
limits prescribed by ORS 19.026.
(3) After the Supreme Court or the Court of Appeals has
acquired jurisdiction of the cause, the omission of a party to
perform any of the acts required in connection with an appeal, or
to perform such acts within the time required, shall be cause for
dismissal of the appeal. In the event of such omission, the
court, on motion of a party or on its own motion may dismiss the
appeal. An appeal dismissed on a party's motion or on the
court's own motion may be reinstated upon showing of good cause.
(4) Notwithstanding the filing of a notice of appeal, the trial
court shall have jurisdiction, with leave of the appellate court,
to enter an appealable judgment if the appellate court determines
that:
(a) At the time of the filing of the notice of appeal the trial
court intended to enter an appealable judgment; and
(b) The judgment from which the appeal is taken is defective in
form or was entered at a time when the trial court did not have
jurisdiction of the cause under subsection (1) of this section,
or the trial court had not yet entered an appealable judgment.
(5) Notwithstanding the filing of a notice of appeal, the trial
court shall have jurisdiction to enter an order under { +
section 3 of this 1997 Act, + } ORCP 71 or ORS 107.452.
(6) Jurisdiction of the appellate court over a cause ends when
a copy of the appellate judgment is mailed by the State Court
Administrator to the court from which the appeal was taken
pursuant to ORS 19.190, except that the appellate court may
recall the appellate judgment as justice may require. After
jurisdiction of the appellate court ends, all orders which may be
necessary to carry the appellate judgment into effect shall be
made by the court from which the appeal was taken.
SECTION 5. ORS 107.105 is amended to read:
107.105. (1) Whenever the court grants a decree of marital
annulment, dissolution or separation, it has power further to
decree as follows:
(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
pursuant to ORS 107.137. The court may hold a hearing to decide
the custody issue prior to any other issues. The court may
recognize the value of close contact with both parents and
encourage, where practicable, joint parental custody and joint
responsibility for the welfare of the children.
(b) For visitation rights of the parent not having custody of
such children, and for visitation rights of grandparents pursuant
to a petition filed under ORS 109.121. The court shall determine
the issue of visitation in the best interest of the child,
insuring the noncustodial parent sufficient access to the child
to provide for quality parenting time. The court shall recognize
the value of close contact with both parents and encourage, where
practicable, joint responsibility for the welfare of such
children and extensive contact between the minor children of the
divided marriage and the parties.
(c) For the support of the children of the marriage by the
parties. In ordering child support, the formula established by
ORS 25.270 to 25.287 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 who has ceased to
attend school after becoming 18 years of age.
(d) For the support of a party, such amount of money for such
period of time as it may be just and equitable for the other
party to contribute, such contribution to be in gross, in
installments or both, as the court may order. The court may
approve, ratify and decree voluntary agreements providing for
contribution to the support of a party. In making such support
order, the court shall consider the following:
(A) The length of the marriage;
(B) The age and the physical and mental health of the parties;
(C) The contribution by one spouse to the education, training
and earning power of the other spouse;
(D) The earning capacity of each party, including educational
background, training, employment skills and work experience;
(E) The need for education, training or retraining to enable a
party to become employable at suitable work or to enable the
party to pursue career objectives to become self-supporting at a
standard of living not overly disproportionate to that enjoyed
during the marriage to the extent that is possible;
(F) The extent to which the present and future earning capacity
of a party is impaired due to the party's extended absence from
the job market to perform the role of homemaker, the extent to
which suitable job opportunities are unavailable to a party
considering the age of the party and the length of time
reasonably anticipated for a party to obtain training or updating
of career or job skills. In a case of a party's extended absence
from the job market to perform the role of homemaker, where it is
likely that the party will never substantially recover from the
loss of economic position due to the extended absence, and where
the other party has, during the marriage, achieved a
substantially advantageous economic position through the joint
efforts of the parties, the court may award the disadvantaged
party support as compensation therefor, so that the standard of
living for the disadvantaged party will not be overly
disproportionate to that enjoyed during the marriage, to the
extent that that is practicable;
(G) The number, ages, health and conditions of dependents of
the parties or either of them and provisions of the decree
relating to custody of the children, including the length of time
child support obligations will be in effect;
(H) The tax liabilities or benefits to each party and the net
spendable income available to each party after accounting for
such liabilities and benefits, and the decree shall state the
court's findings relating to net spendable income of each party
if such statement is requested by either party;
(I) The amount of long-term financial obligation, including
legal fees and costs;
(J) Costs of health care to a party;
(K) The standard of living established during the marriage;
(L) Premiums paid or to be paid for life insurance under ORS
107.810 to 107.830 on the life of a party ordered to pay support;
and
(M) Such other matters as the court shall deem relevant in the
particular case in order that each party shall have the
opportunity to achieve an economic standard of living not overly
disproportionate to that enjoyed during the marriage, to the
extent that is possible.
(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 decree.
(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. A
retirement plan or pension or an interest therein shall be
considered as property. The court shall consider the contribution
of a spouse as a homemaker as a contribution to the acquisition
of marital assets. There is a rebuttable presumption that both
spouses have contributed equally to the acquisition of property
during the marriage, whether such property is jointly or
separately held. 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 coownership, and a transfer of marital assets pursuant to a
decree 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. The court shall require
full disclosure of all assets by the parties in arriving at a
just property division. 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. If a spouse 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. If the obligor dies prior to the
termination of such support and such insurance is not in force,
the court may modify the method of payment of spousal support
under the decree 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. The obligee or attorney of the obligee
shall cause a certified copy of the decree to be delivered to the
life insurance company or companies. If the obligee or the
attorney of the obligee delivers a true copy of the decree 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. The present value of, and
income resulting from, the future enhanced earning capacity of
either party shall be considered as property. The presumption of
equal contribution to the acquisition of marital property,
however, shall not apply to enhanced earning capacity. A spouse
asserting an interest in the income resulting from an enhancement
of earning capacity of the other spouse must demonstrate that the
spouse made a material contribution to the enhancement. Material
contribution can be shown by, among other things, having
contributed, financially or otherwise, to the education and
training that resulted in the enhanced earning capacity. The
contribution shall have been substantial and of prolonged
duration.
(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 decreed 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 shall have the power to 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 must decree a change if it is
requested by the affected party.
(i) For a judgment against one party in favor of the other for
any sums of money found to be then remaining unpaid upon any
enforceable order or orders theretofore duly made and entered in
the proceedings pursuant to any of the provisions of ORS 107.095,
and for a judgment against one party in favor of the other or in
favor of the other's attorney for any further sums as additional
attorney fees or additional costs and expenses of suit or defense
as the court finds reasonably and necessarily incurred by such
party; or, in the absence of any such order or orders pendente
lite, a like judgment for such amount of money as the court finds
was reasonably necessary to enable such party to prosecute or
defend the suit. The decree may include a judgment for any
arrearage in any sum ordered while litigation was pending, but if
such a judgment is not included in the decree, such arrearages
shall not be deemed satisfied.
(2) In determining the proper amount of support and the proper
division of property pursuant to subsection (1)(c), (d) and (f)
of this section, the court may consider evidence of the tax
consequences on the parties of its proposed decree.
(3) Upon the filing of the decree, the property division
ordered shall be deemed effective for all purposes. This transfer
by decree, which shall effect 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, shall not be
deemed a taxable sale or exchange.
(4) If an appeal is taken from a decree of annulment or
dissolution of marriage or of separation or from any part of a
decree rendered in pursuance of the provisions of ORS 107.005 to
107.085, 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 making such
decree may provide in a separate order for any relief provided
for in ORS 107.095 and shall provide that the order is to be in
effect only during the pendency of the appeal. A temporary order
under this subsection may be enforced as provided in ORS 33.015
to 33.155. { - No appeal lies from any such temporary
order. - } { + On motion of a party the Court of Appeals may
review the trial court's disposition of a request for a temporary
order. A motion under this subsection must be filed with the
Court of Appeals within 14 days after the entry of the temporary
order. The Court of Appeals may modify the trial court's order
only if the Court of Appeals finds an abuse of discretion by the
trial court. Upon such finding, the Court of Appeals may enter a
temporary order, affirm, modify or vacate the trial court's
order, remand the order to the trial court for reconsideration or
impose terms and conditions on the order. + }
(5) If an appeal is taken from the decree 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, it 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
said decree, showing among other things that the original parties
to such decree 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 such decree shall have in the first instance
and retain jurisdiction in equity therefor.
SECTION 6. { + (1) The provisions of section 2 of this Act,
and the amendments to ORS 19.033 and 107.105 by sections 4 and 5
of this Act, apply only to appeals pending on the effective date
of this Act and to appeals commenced by the filing of a notice of
appeal after the effective date of this Act.
(2) The provisions of section 3 of this Act apply only to
appeals commenced by the filing of a notice of appeal after the
effective date of this Act. + }
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