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 1154
B-Engrossed
House Bill 2262
Ordered by the Senate March 13
Including House Amendments dated February 12 and Senate
Amendments
dated March 13
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.
Modifies provisions relating to undertakings on appeal.
Specifies procedures for filing undertakings on appeal.
Modifies provisions relating to stays of judgments, including
domestic relations cases, during appeals. Specifies circumstances
in which supersedeas bond stays judgment. Allows trial court to
stay judgment without filing of supersedeas undertaking in
certain cases. Provides procedure for review by appellate court
of trial court decisions relating to undertakings on appeal and
stays of judgment.
Provides procedures for obtaining stay of part of judgment in
domestic relations cases. Allows motion for modification of
judgment while appeal pending if modification is based on change
of circumstances. Specifies procedure for appellate review of
certain temporary orders.
A BILL FOR AN ACT
Relating to appeals; creating new provisions; amending ORS
18.350, 19.005, 19.033, 19.060, 19.190, 53.070 and 107.105 and
ORCP 72A; and repealing ORS 19.038, 19.040, 19.045 and 19.050.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 11 of this Act are added to and
made a part of ORS 19.074 to 19.210. + }
SECTION 2. { + Undertakings on appeal generally; filing and
service. (1) An appellant must serve and file an undertaking for
costs within 14 days after the filing of a notice of appeal.
Unless the undertaking is waived, reduced or limited under
section 4 of this 1997 Act, an undertaking for costs must be in
the amount of $500.
(2) A supersedeas undertaking may be served and filed by an
appellant at any time while a case is pending on appeal.
(3) The original of an undertaking on appeal, with proof of
service, must be filed with the trial court clerk. A copy of the
undertaking must be served on each adverse party on appeal in the
manner prescribed by ORCP 9B. + }
SECTION 3. { + Qualifications of sureties; objections. + }
{ + (1) Undertakings on appeal are subject to the provisions of
ORS 22.020 to 22.070.
(2) A surety for an undertaking on appeal must be qualified as
provided in ORCP 82. The amount of liability assumed by a surety
or letter of credit issuer must be stated in the undertaking. The
liability of a surety or letter of credit issuer is limited to
the amount specified in the undertaking.
(3) Objections to the sufficiency of an undertaking on appeal,
including the objections to the amount of the undertaking and to
the sufficiency of the security for the undertaking, must be
filed in and determined by the trial court in the manner provided
by ORCP 82. Notwithstanding ORCP 82 F, objections to the
undertaking must be filed within 14 days after the date on which
a copy of the undertaking is served on the party who objects to
the undertaking. + }
SECTION 4. { + Waiver, reduction or limitation of undertaking
on appeal. (1) By written stipulation of the parties, an
undertaking on appeal may be waived, reduced or limited. The
stipulation must be filed with the trial court clerk within 14
days after the filing of the notice of appeal. Unless disapproved
or modified by the trial court, the stipulation has the effect
specified by the terms of the stipulation.
(2) The trial court may waive, reduce or limit an undertaking
on appeal upon a showing of good cause, including indigence, and
on such terms as are just and equitable. + }
SECTION 5. { + Stays generally. + } { + The filing of a
notice of appeal does not automatically stay the judgment that is
the subject of the appeal. A party may seek to stay a judgment in
the manner provided by section 6, 7 or 8 of this 1997 Act, or as
provided by other law. + }
SECTION 6. { + Stay by filing of supersedeas undertaking;
exceptions. (1) If a judgment is for the recovery of money, a
supersedeas undertaking acts to stay the judgment if the
undertaking provides that the appellant will pay the judgment to
the extent that the judgment is affirmed on appeal.
(2) If a judgment requires the transfer or delivery of
possession of real property, a supersedeas undertaking acts to
stay the judgment if the undertaking provides that the appellant
will not commit waste or allow waste to be committed on the real
property while the appellant possesses the property, and the
appellant will pay the value of the use and occupation of the
property for the period of possession if the judgment is
affirmed. The value of the use and occupation during the period
of possession must be stated in the undertaking.
(3)(a) If a judgment requires the transfer or delivery of
possession of personal property, a supersedeas undertaking acts
to stay the judgment if the undertaking provides that the
appellant will obey the judgment of the appellate court, and that
if the appellant does not obey the judgment, the appellant will
pay an amount determined by the trial court and stated in the
undertaking.
(b) If a judgment requires the transfer or delivery of
possession of personal property, the judgment is stayed without
the filing of a supersedeas undertaking if the appellant
transfers or delivers the personal property to the court or
places the property in the custody of an officer or receiver
appointed by the trial court.
(4) If a judgment requires the foreclosure of a mortgage, lien
or other encumbrance, and also requires payment of the debt
secured by the mortgage, lien or other encumbrance, a supersedeas
undertaking acts to stay that portion of the judgment that
requires payment of the debt if the undertaking provides that the
appellant will pay any portion of the judgment remaining
unsatisfied after the sale of the property subject to the
mortgage, lien or other encumbrance. The amount of the
undertaking must be stated in the undertaking. The requirements
of this subsection are in addition to any provisions in a
supersedeas undertaking that may be required under subsection (2)
or (3) of this section to stay delivery or transfer of property.
(5) If a judgment requires the execution of a conveyance or
other instrument, the judgment is stayed without the filing of a
supersedeas undertaking if the appellant executes the instrument
and deposits the instrument with the trial court clerk. Unless
otherwise directed by the appellate court, the instrument must be
held by the trial court clerk until issuance of the appellate
judgment terminating the appeal. + }
SECTION 7. { + Waiver of supersedeas bond for certain
fiduciaries; sales of perishable goods. (1) The trial court, in
its discretion, may stay a judgment without requiring a
supersedeas undertaking, or reduce the amount of the supersedeas
undertaking required of the appellant, if the appellant is an
executor, administrator, trustee or other person acting on behalf
of another.
(2) If a judgment that has been stayed requires the sale of
perishable property, or if perishable property has been seized to
satisfy or secure a judgment that has been stayed, the trial
court may order that perishable property be sold and the proceeds
of the sale deposited or invested until issuance of the appellate
judgment terminating the appeal. + }
SECTION 8. { + Discretionary stay by court. (1) A party may
seek a stay of judgment pending a decision on appeal in the
manner provided by this section only if the judgment may not be
stayed under the provisions of section 6 or 7 of this 1997 Act,
or under any other provision of law specifying a procedure or
grounds for staying the judgment. A stay of judgment may not be
granted under this section if any other provision of law
specifies that a stay may not be granted pending a decision on
appeal.
(2) Except as provided in subsection (5) of this section, a
party seeking a stay under the provisions of this section must
first request a stay from the trial court. The trial court may
act on a request for a stay before or after a notice of appeal is
filed. The time for filing a notice of appeal is not tolled by
the making of a request for a stay under this section or by the
trial court's action on the request.
(3) The trial court shall consider the following factors in
deciding whether to grant a stay under this section, in addition
to such other factors as the trial court considers important:
(a) The likelihood of the appellant prevailing on appeal.
(b) Whether the appeal is taken in good faith and not for the
purpose of delay.
(c) Whether there is any support in fact or in law for the
appeal.
(d) The nature of the harm to the appellant, to other parties,
to other persons and to the public that will likely result from
the grant or denial of a stay.
(4) The trial court has discretion to impose reasonable
conditions on the grant of a stay under the provisions of this
section. The court may require that a supersedeas undertaking be
filed in a specified amount as a condition of granting a stay
under the provisions of this section.
(5) A party may request a stay pending appeal from the
appellate court in the first instance, and the appellate court
may act on that request without requiring the party to seek a
stay from the trial court, if the party establishes that the
filing of a request for a stay with the trial court would be
futile or that the trial court is unable or unwilling to act on
the request within a reasonable time. In considering a request
for a stay under this subsection, the appellate court shall
consider the factors set out in subsection (3) of this section in
addition to any other factors the court considers important. + }
SECTION 9. { + Review by appellate court of trial court
orders relating to undertakings and stays. (1) Any party
aggrieved by the trial court's final order relating to an
undertaking on appeal, the trial court's denial of a stay or the
terms and conditions imposed by the trial court on the granting
of a stay may seek review of the trial court's decision by filing
a motion in the appellate court to which the appeal is made. The
motion must be filed within 14 days after the entry of the trial
court's order. During the 14-day period after the entry of the
trial court's order, the trial court may stay the judgment being
appealed, impose terms or conditions on the granting of a stay or
take such other action as may be necessary to prevent prejudice
to the parties.
(2) The appellate court may review the decision of the trial
court under the provisions of this section at any time after the
filing of the notice of appeal. If the scope of review by the
appellate court is as provided in section 3, Article VII
(Amended) of the Oregon Constitution, the review is limited to
determining whether the trial court abused its discretion. If the
appellate court is required to try the cause anew upon the
record, the appellate court shall review the decision de novo.
(3) On review of a trial court's decision relating to a request
for a stay pending appeal, an appellate court may remand the
matter to the trial court for reconsideration, may vacate a stay
granted by the trial court, may grant a stay, and may impose or
modify terms and conditions on a stay. Upon receipt of a request
for a stay pending appeal made to the appellate court in the
first instance, the appellate court may remand the matter to the
trial court for consideration in the first instance, may grant or
deny a stay, and may impose terms and conditions on a stay issued
by the appellate court. + }
SECTION 10. { + Stays of domestic relations judgment. + }
{ + (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 any 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 or 109. + }
SECTION 11. { + Certain motions for modification that may be
filed while appeal pending. + } { + (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), the
court's final 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 12. ORS 19.005 is amended to read:
19.005. As used in this section and in ORS 19.023, 19.026,
19.029 to 19.065 and 19.074 to 19.210 unless the context
otherwise requires:
{ + (1) 'Clerk' means the trial court administrator under ORS
8.185 or trial court clerk under ORS 8.205 for the county in
which the judgment or appealable order is filed and entered, or
either. + }
{ - (1) - } { + (2) + } 'Exhibits' means exhibits offered
and received or rejected in the trial court.
{ - (2) - } { + (3) + } 'Judgment' means judgment, decree
or appealable order, as provided in ORS 19.010.
{ + (4) 'Notice of appeal' includes a notice of
cross-appeal. + }
{ - (3) 'Trial court file' means all the original papers
filed in the trial court whether before or after judgment,
including but not limited to the summons and proof of service
thereof, pleadings, motions, affidavits, depositions,
stipulations, orders, the judgment, the notice of appeal and the
undertaking on appeal. - }
{ - (4) 'Transcript' means the transcript of the court
reporter's report as provided in ORS 8.340, 8.350 and 8.360. - }
(5) 'Record' or 'record of the case' means the trial court file
and any transcript, narrative statement and exhibits.
{ + (6) 'Supersedeas undertaking' means an undertaking on
appeal that secures performance of a judgment being appealed and
operates to stay enforcement of the judgment pending appeal.
(7) 'Transcript' means the transcript of the court reporter's
report as provided in ORS 8.340, 8.350 and 8.360 and any
transcript of an audio record prepared under ORS 19.078.
(8) 'Trial court file' means all the original papers filed in
the trial court whether before or after judgment, including but
not limited to the summons and proof of service thereof,
pleadings, motions, affidavits, depositions, stipulations,
orders, jury instructions, the judgment, the notice of appeal and
the undertaking on appeal. + }
{ - (6) 'Clerk' means the trial court administrator under ORS
8.185 or trial court clerk under ORS 8.205 for the county in
which the judgment or appealable order is filed and entered, or
either. - }
{ - (7) 'Notice of appeal' includes a notice of cross
appeal. - }
{ + (9) 'Undertaking for costs' means an undertaking on
appeal that secures payment of costs and disbursements that may
be awarded against an appellant on appeal, and any amounts that
may be awarded to the respondent under the provisions of ORS
19.160.
(10) 'Undertaking on appeal' means a promise secured by
sureties or by money, bond or any other security described in ORS
22.020. 'Undertaking on appeal' includes undertakings for costs
and supersedeas undertakings. + }
SECTION 13. ORS 18.350 is amended to read:
18.350. (1) From the time of docketing an original or renewed
judgment, as provided in ORS 18.320, such judgment shall be a
lien upon all the real property of the judgment debtor within the
county where the same is docketed, or which the judgment debtor
may afterwards acquire therein, during the time prescribed in ORS
18.360. Such judgment shall not be a lien upon any real property
of the judgment debtor acquired after the effective date of the
discharge of the judgment under federal bankruptcy laws. All
docketed judgments shall be presumed to have not been discharged
until the judgment debtor establishes that the judgment has been
discharged.
{ - (2) When an appeal is taken from any judgment and an
undertaking on appeal is filed, with a surety corporation
licensed to do business in Oregon as surety on such undertaking,
to the effect that if the judgment or any part thereof shall be
affirmed the appellant will satisfy it so far as affirmed, the
lien of the judgment shall cease and be annulled upon the
expiration of the time allowed to except to the surety in the
undertaking or upon the justification thereof, if excepted to,
and that fact shall be noted upon the judgment docket over the
signature of the officer having custody of such docket. - }
{ + (2) A judgment lien expires if an appeal is taken from
any judgment and a supersedeas undertaking, as defined in ORS
19.005, is filed by the judgment debtor. The clerk shall note the
expiration of the lien in the judgment docket. The lien expires
when the time expires for the filing of objections to the
undertaking, or upon approval of the undertaking by the court,
whichever is later. + }
(3) When the lien of a judgment ceases in the county in which
the judgment was originally docketed, it shall cease in every
other county in which a certified copy of the judgment or a lien
record abstract has been recorded. When such judgment has been
fully satisfied, it shall be the responsibility of the judgment
creditor to file a full satisfaction in the county in which the
judgment was originally docketed. The clerk of the court shall
not charge a fee for filing a satisfaction of judgment. Upon
satisfaction in full of the judgment, the judgment creditor shall
deliver to the judgment debtor an executed satisfaction of the
judgment for every county where a certified copy of the judgment
or a lien record abstract has been recorded.
SECTION 14. 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. - }
{ + (1) The Supreme Court or the Court of Appeals has
jurisdiction of the cause when the notice of appeal has been
served and filed as provided in ORS 19.023, 19.026 and 19.029.
The trial court may exercise those powers in connection with the
appeal as are conferred by law, and retains jurisdiction in the
matter for the following purposes:
(a) Deciding requests for attorney fees, costs and
disbursements or expenses pursuant to ORCP 68 or other provision
of law.
(b) Enforcing the judgment, subject to any stay of the
judgment. + }
(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 11 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 { + :
(a) + } Recall the appellate judgment as justice may
require { + ;
(b) Stay enforcement of the appellate judgment to allow the
filing of a petition for writ of certiorari to the Supreme Court
of the United States; and
(c) Stay enforcement of the appellate judgment pending
disposition of the matter by the Supreme Court of the United
States or for such other time as the Oregon appellate court may
deem appropriate + }.
{ + (7) + } 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 15. ORS 19.060 is amended to read:
19.060. If the judgment or decree has been given in an action
or suit upon a contract, notwithstanding an appeal and
{ + supersedeas + } undertaking { - for the stay of
proceedings - } , the respondent may proceed to enforce such
judgment or decree, if within 10 days from the time the appeal is
perfected the respondent files with the clerk an undertaking
{ - , with one or more sureties, - } to the effect that if the
judgment or decree is reversed or modified the respondent will
make such restitution as the appellate court may direct. Such
undertaking may be excepted to by the appellant in like manner
and with like effect as the undertaking of an appellant, and the
sureties therein shall have the same qualifications.
SECTION 16. ORS 19.190 is amended to read:
19.190. (1) As used in this section:
(a) 'Decision' means a memorandum opinion, an opinion
indicating the author or an order denying or dismissing an appeal
issued by the Court of Appeals or the Supreme Court. The decision
shall state the court's disposition of the judgment being
appealed, and may provide for final disposition of the cause. The
decision shall designate the prevailing party or parties, state
whether a party or parties will be allowed costs and
disbursements, and if so, by whom the costs and disbursements
will be paid.
(b) 'Appellate judgment' means the decision of the Court of
Appeals or Supreme Court, or such portion of the decision as may
be specified by the rule of the Supreme Court, together with an
award of attorney fees or allowance of costs and disbursements,
if any.
(2) As to appeals from district, circuit and tax court, the
appellate judgment is effective when a copy of the appellate
judgment is entered in the court's register and mailed by the
State Court Administrator to the court from which the appeal was
taken. When the State Court Administrator mails a copy of the
appellate judgment to the court from which the appeal was taken,
the administrator also shall mail a copy to the parties to the
appeal.
(3) If a new trial is ordered, upon the receipt of the
appellate judgment by the clerk of the court below, the clerk
shall enter the appellate court's decision in the register of the
court below and thereafter the cause shall be deemed pending for
trial in such court, according to the directions of the court
which rendered the decision. If a new trial is not ordered, upon
the receipt of the appellate judgment by the clerk, a judgment
shall be entered in the register and docketed according to the
directions of the court which rendered the decision, in like
manner and with like effect as if the same was given in the court
below.
{ - (4) If judgment is given against the appellant, it shall
be entered against the sureties of the appellant also, in like
manner and with like effect, according to the nature and extent
of their undertaking. - }
{ + (4) A party entitled to enforce an undertaking may obtain
judgment against a surety by filing a request with the State
Court Administrator and serving a copy of the request on the
other parties and the surety. The request must identify the
surety against whom judgment is to be entered and the amount of
the judgment sought to be imposed against the surety. Unless
otherwise directed by the appellate court, upon receiving the
request the State Court Administrator shall include in the
appellate judgment a money judgment against the surety in the
amount specified.
(5) If the appellate judgment terminating an appeal contains a
money judgment against a surety for an undertaking, the trial
court clerk shall enter and docket the judgment against the
surety in like manner and with like effect as if the judgment was
given in the court below. + }
{ - (5) - } { + (6) + } Except as provided in ORS 18.350,
an appeal shall not discharge the lien of a judgment and unless
the same is reversed, the lien thereof shall be merged and
continue in the affirmed or modified judgment given on appeal,
from the time of the entry and docketing of the same in the court
below. The lien of any judgment created by recording a certified
copy of the judgment or a lien record abstract shall continue as
a lien in the same manner as the original judgment lien as
provided in this subsection.
SECTION 17. ORS 53.070 is amended to read:
53.070. All sureties on an undertaking on appeal must have the
qualifications { - of bail upon arrest; and, if required by the
adverse party within five days after filing the undertaking, they
must justify before the justice in like manner - } { +
established by ORCP 82. Challenges to the qualifications of
sureties may be made as provided by ORCP 82 + }.
SECTION 18. ORCP 72 A, as amended by the Council on Court
Procedures on December 14, 1996, is further amended to read:
A Immediate execution; discretionary stay. Execution or other
proceeding to enforce a judgment may issue immediately upon the
entry of the judgment, unless the court directing entry of the
judgment, in its discretion and on such conditions for the
security of the adverse party as are proper, otherwise directs.
The court shall have authority to stay execution of a judgment
temporarily until the filing of a notice of appeal and to stay
execution of a judgment pending disposition of an appeal, as
provided in { - ORS 19.040 - } { + sections 6, 7 and 8 of
this 1997 Act + } or other provision of law.
SECTION 19. 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 20. { + ORS 19.038, 19.040, 19.045 and 19.050 are
repealed. + }
SECTION 21. { + The section captions used in sections 2 to 11
of this Act are provided only for convenience in locating
provisions of this Act and do not become part of the statutory
law of this state or express any legislative intent in the
enactment of this Act. + }
SECTION 22. { + (1) Except as provided by subsection (2) of
this section, the provisions of this Act apply only to appeals
commenced by the filing of a notice of appeal on or after the
effective date of this Act. Except as provided in subsection (2)
of this section, and notwithstanding the amendment and repeal of
statutory provisions by this Act, any appeal commenced before the
effective date of this Act shall continue to be governed by the
provisions of ORS chapter 19 in effect immediately before the
effective date of this Act.
(2) The provisions of section 10 of this Act, and the
amendments to ORS 107.105 by section 19 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 on or after
the effective date of this Act. + }
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