2007 Oregon Code - Chapter 33 :: Chapter 33 - Special Proceedings and Procedures
Chapter 33 — Special
Proceedings and Procedures
2007 EDITION
SPECIAL PROCEEDINGS AND PROCEDURES
SPECIAL ACTIONS AND PROCEEDINGS
CONTEMPT PROCEEDINGS
33.015Â Â Â Â Â Â Definitions
for ORS 33.015 to 33.155
33.025Â Â Â Â Â Â Nature
of contempt power; corporate defendants
33.035Â Â Â Â Â Â Appointed
counsel
33.045Â Â Â Â Â Â Types
of sanctions
33.055Â Â Â Â Â Â Procedure
for imposition of remedial sanctions
33.065Â Â Â Â Â Â Procedure
for imposition of punitive sanctions
33.075Â Â Â Â Â Â Compelling
attendance of defendant
33.085Â Â Â Â Â Â Compelling
testimony of witness
33.096Â Â Â Â Â Â Summary
imposition of sanction
33.105Â Â Â Â Â Â Sanctions
authorized
33.115Â Â Â Â Â Â Referral
to another judge
33.125Â Â Â Â Â Â Appeal
33.135Â Â Â Â Â Â Limitations
of actions
33.145Â Â Â Â Â Â Rules
33.155Â Â Â Â Â Â Applicability
CHANGE OF NAME
33.410Â Â Â Â Â Â Jurisdiction;
grounds
33.420Â Â Â Â Â Â Notice
of application and judgment; notice for change of name of minor child
33.430Â Â Â Â Â Â Change
of name on birth certificate; court conference with child
33.440Â Â Â Â Â Â Application
by minor child; court conference
CHANGE OF SEX
33.460Â Â Â Â Â Â Jurisdiction;
grounds; procedure
SURETIES
33.510Â Â Â Â Â Â Discharge
of surety or letter of credit issuer on application of surety or issuer
33.520Â Â Â Â Â Â Discharge
of surety or letter of credit issuer on application of principal
33.530Â Â Â Â Â Â Liability
of sureties or letter of credit issuer after termination of bond or letter of
credit
EVALUATING SECURITIES OF SECURED CREDITOR
33.610Â Â Â Â Â Â Evaluating
securities of secured creditor
DETERMINATION OF LEGALITY OF MUNICIPAL CORPORATION ORGANIZATION AND
ACTIONS
33.710Â Â Â Â Â Â Definitions;
judicial examination to determine legality of any municipal corporationÂ’s
organization and actions
33.720Â Â Â Â Â Â Proceeding
in rem; practice and procedure as in action not triable by right to jury;
service by publication; appeal; costs
TRANSFER OF STRUCTURED SETTLEMENT PAYMENT
RIGHTS
33.850Â Â Â Â Â Â Definitions
for ORS 33.850 to 33.875
33.855Â Â Â Â Â Â Transfer
of payment rights; application; notice
33.860Â Â Â Â Â Â Statement
containing terms of transfer
33.865Â Â Â Â Â Â Required
findings by court or responsible administrative authority
33.870Â Â Â Â Â Â Liability
of parties after transfer
33.875Â Â Â Â Â Â Limitations
on transfers
     33.010 [Amended by 1981 c.898 §37; repealed by 1991 c.724 §32]
CONTEMPT PROCEEDINGS
     33.015
Definitions for ORS 33.015 to 33.155. For the purposes of ORS 33.015 to 33.155:
     (1) “Confinement” means custody or
incarceration, whether actual or constructive.
     (2) “Contempt of court” means the
following acts, done willfully:
     (a) Misconduct in the presence of the
court that interferes with a court proceeding or with the administration of
justice, or that impairs the respect due the court.
     (b) Disobedience of, resistance to or
obstruction of the courtÂ’s authority, process, orders or judgments.
     (c) Refusal as a witness to appear, be
sworn or answer a question contrary to an order of the court.
     (d) Refusal to produce a record, document
or other object contrary to an order of the court.
     (e) Violation of a statutory provision
that specifically subjects the person to the contempt power of the court.
     (3) “Punitive sanction” means a sanction
imposed to punish a past contempt of court.
     (4) “Remedial sanction” means a sanction
imposed to terminate a continuing contempt of court or to compensate for
injury, damage or costs resulting from a past or continuing contempt of court. [1991
c.724 §1; 2005 c.22 §23]
     33.020 [Repealed by 1991 c.724 §32]
     33.025
Nature of contempt power; corporate defendants. (1) The power of a court to impose a
remedial or punitive sanction for contempt of court is an inherent judicial
power. ORS 33.015 to 33.155 establish procedures to govern the exercise of that
power.
     (2) A corporation is liable for contempt
if:
     (a) The conduct constituting contempt is
engaged in by an agent of the corporation while acting within the scope of
employment and on behalf of the corporation;
     (b) The conduct constituting contempt
consists of an omission to discharge a specific duty of affirmative performance
imposed on corporations by a court; or
     (c) The conduct constituting contempt is
engaged in, authorized, solicited, requested, commanded or knowingly tolerated
by the board of directors or by a high managerial agent acting within the scope
of employment and on behalf of the corporation.
     (3) The board of directors and high
managerial agents shall be subject to the contempt powers of a court for
contempt by a corporation if those persons engage in, authorize, solicit,
request, command or knowingly tolerate the conduct constituting contempt.
     (4) As used in this section, “agent” and “high
managerial agent” have those meanings given in ORS 161.170. [1991 c.724 §2]
     33.030 [Repealed by 1991 c.724 §32]
     33.035
Appointed counsel. Whenever
ORS 33.015 to 33.155 provide for appointed counsel, appointment of counsel and
payment of counsel and related expenses shall be made as follows:
     (1) For contempt of a circuit court, the
Oregon Tax Court, the Court of Appeals or the Supreme Court, appointment and
payment of counsel shall be made as provided in ORS 135.055, 151.216 and
151.219.
     (2) For contempt of a justice court,
municipal court or other public body not described in subsection (1) of this
section, payment for and appointment of counsel shall be made as otherwise
provided by law for the court or public body. [1991 c.724 §3; 2001 c.962 §63]
     33.040 [Amended by 1955 c.648 §2; 1961 c.210 §5;
repealed by 1991 c.724 §32]
     33.045
Types of sanctions. (1) A
court may impose either remedial or punitive sanctions for contempt.
     (2) Confinement may be remedial or
punitive. The sanction is:
     (a) Remedial if it continues or
accumulates until the defendant complies with the courtÂ’s order or judgment.
     (b) Punitive if it is for a definite
period that will not be reduced even if the defendant complies with the courtÂ’s
order or judgment.
     (3) A fine may be remedial or punitive. A
fine is:
     (a) Punitive if it is for a past contempt.
     (b) Remedial if it is for continuing
contempt and the fine accumulates until the defendant complies with the courtÂ’s
judgment or order or if the fine may be partially or entirely forgiven when the
defendant complies with the courtÂ’s judgment or order.
     (4) Any sanction requiring payment of
amounts to one of the parties to a proceeding is remedial.
     (5) Any sanction imposed by a court for
contempt is in addition to any civil remedy or criminal sanction that may be
available as a result of the conduct constituting contempt. In any civil or
criminal proceedings arising out of the conduct constituting contempt, the
court shall take into consideration any contempt sanctions previously imposed
for the same act. [1991 c.724 §4]
     33.050 [Repealed by 1991 c.724 §32]
     33.055
Procedure for imposition of remedial sanctions. (1) Except as otherwise provided in ORS
161.685, proceedings to impose remedial sanctions for contempt shall be
conducted as provided in this section.
     (2) The following persons may initiate the
proceeding or, with leave of the court, participate in the proceeding, by
filing a motion requesting that defendant be ordered to appear:
     (a) A party aggrieved by an alleged
contempt of court.
     (b) A district attorney.
     (c) A city attorney.
     (d) The Attorney General.
     (e) Any other person specifically
authorized by statute to seek imposition of sanctions for contempt.
     (3) A motion to initiate a proceeding
under this section shall be filed in the proceeding to which the contempt is
related, if there is a related proceeding.
     (4) The person initiating a proceeding
under this section shall file supporting documentation or affidavits sufficient
to give defendant notice of the specific acts alleged to constitute contempt.
     (5)(a) The court may issue an order
directing the defendant to appear. Except as otherwise provided in paragraph
(b) of this subsection, the defendant shall be personally served with the order
to appear in the manner provided in ORCP 7 and 9. The court may order service
by a method other than personal service or issue an arrest warrant if, based
upon motion and supporting affidavit, the court finds that the defendant cannot
be personally served.
     (b) The defendant shall be served by
substituted service if personal service is waived under ORS 107.835. If
personal service is waived under ORS 107.835, the defendant shall be served by
the method specified in the waiver.
     (6) The court may impose a remedial
sanction only after affording the defendant opportunity for a hearing tried to
the court. The defendant may waive the opportunity for a hearing by stipulated
order filed with the court.
     (7) A defendant has no right to a jury
trial and, except as provided in this section, has only those rights accorded
to a defendant in a civil action.
     (8) A defendant is entitled to be
represented by counsel. A court shall not impose on a defendant a remedial
sanction of confinement unless, before the hearing is held, the defendant is:
     (a) Informed that such sanction may be
imposed; and
     (b) Afforded the same right to appointed
counsel required in proceedings for the imposition of an equivalent punitive
sanction of confinement.
     (9) If the defendant is not represented by
counsel when coming before the court, the court shall inform the defendant of
the right to counsel, and of the right to appointed counsel if the defendant is
entitled to, and financially eligible for, appointed counsel under subsection
(8) of this section.
     (10) Inability to comply with an order of
the court is an affirmative defense.
     (11) In any proceeding for imposition of a
remedial sanction other than confinement, proof of contempt shall be by clear
and convincing evidence. In any proceeding for imposition of a remedial
sanction of confinement, proof of contempt shall be beyond a reasonable doubt.
     (12) Proceedings under this section are subject
to rules adopted under ORS 33.145. Proceedings under this section are not
subject to the Oregon Rules of Civil Procedure except as provided in subsection
(5) of this section or as may be provided in rules adopted under ORS 33.145. [1991
c.724 §5; 1993 c.448 §7; 2001 c.962 §77; 2005 c.22 §24]
     33.060 [Amended by 1981 c.781 §1; 1983 c.561 §1;
repealed by 1991 c.724 §32]
     33.065
Procedure for imposition of punitive sanctions. (1) Except as otherwise provided in ORS
161.685, proceedings to impose punitive sanctions for contempt shall be
conducted as provided in this section.
     (2) The following persons may initiate the
proceeding by an accusatory instrument charging a person with contempt of court
and seeking a punitive sanction:
     (a) A city attorney.
     (b) A district attorney.
     (c) The Attorney General.
     (3) If a city attorney, district attorney
or Attorney General who regularly appears before the court declines to
prosecute a contempt, and the court determines that remedial sanctions would
not provide an effective alternative remedy, the court may appoint an attorney
who is authorized to practice law in this state, and who is not counsel for an
interested party, to prosecute the contempt. The court shall allow reasonable
compensation for the appointed attorneyÂ’s attendance, to be paid by:
     (a) The Oregon Department of
Administrative Services, if the attorney is appointed by the Supreme Court, the
Court of Appeals or the Oregon Tax Court;
     (b) The city where the court is located,
if the attorney is appointed by a municipal court; and
     (c) The county where the prosecution is
initiated, in all other cases.
     (4) The prosecutor may initiate
proceedings on the prosecutorÂ’s own initiative, on the request of a party to an
action or proceeding or on the request of the court. After the prosecutor files
an accusatory instrument, the court may issue any order or warrant necessary to
compel the appearance of the defendant.
     (5) Except as otherwise provided by this
section, the accusatory instrument is subject to the same requirements and laws
applicable to an accusatory instrument in a criminal proceeding, and all
proceedings on the accusatory instrument shall be in the manner prescribed for
criminal proceedings.
     (6) Except for the right to a jury trial,
the defendant is entitled to the constitutional and statutory protections,
including the right to appointed counsel, that a defendant would be entitled to
in a criminal proceeding in which the fine or term of imprisonment that could
be imposed is equivalent to the punitive sanctions sought in the contempt
proceeding. This subsection does not affect any right to a jury that may
otherwise be created by statute.
     (7) Inability to comply with an order of
the court is an affirmative defense. If the defendant proposes to rely in any
way on evidence of inability to comply with an order of the court, the
defendant shall, not less than five days before the trial of the cause, file
and serve upon the city attorney, district attorney or Attorney General
prosecuting the contempt a written notice of intent to offer that evidence. If
the defendant fails to file and serve the notice, the defendant shall not be
permitted to introduce evidence of inability to comply with an order of the
court at the trial of the cause unless the court, in its discretion, permits
such evidence to be introduced where just cause for failure to file the notice,
or to file the notice within the time allowed, is made to appear.
     (8) The court may impose a remedial
sanction in addition to or in lieu of a punitive sanction.
     (9) In any proceeding for imposition of a
punitive sanction, proof of contempt shall be beyond a reasonable doubt. [1991
c.724 §6; 2001 c.962 §78]
     33.070 [Amended by 1973 c.836 §321; repealed by
1991 c.724 §32]
     33.075
Compelling attendance of defendant. (1) If a person served with an order to appear under ORS 33.055 fails
to appear at the time and place specified in the order, the court may issue any
order or warrant necessary to compel the appearance of the defendant.
     (2) A person against whom a complaint has
been issued under ORS 33.065 may be cited to appear in lieu of custody as
provided in ORS 133.055. If the person fails to appear at the time and place
specified in the citation, the court may issue any order or warrant necessary
to compel the appearance of the defendant.
     (3) When the court issues a warrant for
contempt, the court shall specify a security amount. Unless the defendant pays
the security amount upon arrest, the sheriff shall keep the defendant in
custody until either a release decision is made by the court or until
disposition of the contempt proceedings.
     (4) The defendant shall be discharged from
the arrest upon executing and delivering to the sheriff, at any time before the
return day of the warrant, a security release or a release agreement as
provided in ORS 135.230 to 135.290, to the effect that the defendant will
appear on the return day and abide by the order or judgment of the court or
officer or pay, as may be directed, the sum specified in the warrant.
     (5) The sheriff shall return the warrant
and the security deposit, if any, given to the sheriff by the defendant by the
return day specified in the warrant.
     (6) When a warrant for contempt issued
under subsection (2) of this section has been returned after having been served
and the defendant does not appear on the return day, the court may do either or
both of the following:
     (a) Issue another warrant.
     (b) Proceed against the security deposited
upon the arrest.
     (7) If the court proceeds against the
security under subsection (6) of this section and the sum specified is
recovered, the court may award to any party to the action any or all of the
money recovered as remedial damages.
     (8) Security deposited under this section
shall not be subject to the assessments provided for in ORS 137.309 (1) to (5).
[1991 c.724 §7; 1993 c.196 §3]
     33.080 [Amended by 1973 c.836 §322; repealed by
1991 c.724 §32]
     33.085
Compelling testimony of witness. (1) Upon the motion of the person initiating the proceeding, the court
may compel the testimony of a witness as provided under ORS 136.617 in a
contempt proceeding under ORS 33.055 or 33.065.
     (2) In any case where the person
initiating the proceeding is not represented by the district attorney, county
counsel or Attorney General, the person initiating the proceeding shall serve a
notice of intent to compel testimony on the district attorney of the county
where the contempt proceeding is pending and on the Attorney General. The
notice shall be served not less than 14 calendar days before any hearing on the
motion to compel testimony.
     (3) The notice required by this section
shall identify the witness whose testimony the person initiating the proceeding
intends to compel and include, if known, the witnessÂ’ name, date of birth,
residence address and Social Security number, and other pending proceedings or
criminal charges involving the witness. The notice shall also include the case
name and number of the contempt proceeding and the date, time and place set for
any hearing scheduled as provided in ORS 136.617.
     (4) If the person initiating the
proceeding fails to serve the required advance notice or fails to serve the
notice within the time required, the court shall grant a continuance for not
less than 14 calendar days from the date the notice is served to allow the
district attorney and Attorney General opportunity to be heard on the matter of
compelling testimony. The court may compel testimony under this subsection only
after the full notice period and opportunity to be heard, unless before that
time the district attorney and Attorney General waive in writing any objection
to the motion to compel.
     (5) In any hearing on a motion to compel
testimony under this section, the district attorney of the county in which the
contempt proceeding is pending and the Attorney General each may appear to
present evidence or arguments to support or oppose the motion.
     (6) In lieu of compelling testimony under
this section, the court may continue the contempt proceeding until disposition
of any criminal action that is pending against the witness whose testimony is
sought and that charges the witness with a crime. [1991 c.724 §7a]
     33.090 [Amended by 1973 c.836 §323; repealed by
1991 c.724 §32]
     33.095 [1975 c.516 §2; 1981 c.898 §38; 1987 c.803 §15;
1989 c.171 §5; repealed by 1991 c.724 §32]
     33.096
Summary imposition of sanction.
A court may summarily impose a sanction upon a person who commits a contempt of
court in the immediate view and presence of the court. The sanction may be
imposed for the purpose of preserving order in the court or protecting the
authority and dignity of the court. The provisions of ORS 33.055 and 33.065 do
not apply to summary imposition of sanctions under this section. [1991 c.724 §8]
     33.100 [Repealed by 1991 c.724 §32]
     33.105
Sanctions authorized. (1)
Unless otherwise provided by statute, a court may impose one or more of the
following remedial sanctions:
     (a) Payment of a sum of money sufficient
to compensate a party for loss, injury or costs suffered by the party as the
result of a contempt of court.
     (b) Confinement for so long as the
contempt continues, or six months, whichever is the shorter period.
     (c) An amount not to exceed $500 or one
percent of the defendantÂ’s annual gross income, whichever is greater, for each
day the contempt of court continues. The sanction imposed under this paragraph
may be imposed as a fine or to compensate a party for the effects of the
continuing contempt.
     (d) An order designed to insure compliance
with a prior order of the court, including probation.
     (e) Payment of all or part of any attorney
fees incurred by a party as the result of a contempt of court.
     (f) A sanction other than the sanctions
specified in paragraphs (a) to (e) of this subsection if the court determines
that the sanction would be an effective remedy for the contempt.
     (2) Unless otherwise provided by statute,
a court may impose one or more of the following punitive sanctions for each
separate contempt of court:
     (a) A fine of not more than $500 or one
percent of the defendantÂ’s annual gross income, whichever is greater.
     (b) Forfeiture of any proceeds or profits
obtained through the contempt.
     (c) Confinement for not more than six
months.
     (d) Probation or community service.
     (3) In a summary proceeding under ORS
33.096, a court may impose one or more of the following sanctions for each
separate contempt of court:
     (a) A punitive fine of not more than $500;
     (b) Confinement as a punitive sanction for
not more than 30 days; or
     (c) Probation or community service.
     (4) The court may impose a punitive
sanction for past conduct constituting contempt of court even though similar
present conduct is a continuing contempt of court. [1991 c.724 §9]
     33.110 [Repealed by 1991 c.724 §32]
     33.115
Referral to another judge. A
judge may be disqualified from a contempt proceeding as provided for in other
cases under ORS 14.210 to 14.270. ORS 14.260 (3) shall not apply to a motion to
disqualify a judge in a contempt proceeding. The judge to whom the contempt is
referred shall assume authority over and conduct any further proceedings
relating to the contempt. [1991 c.724 §10; 1995 c.658 §121]
     33.125
Appeal. (1) The imposition
of a sanction for contempt shall be by a judgment.
     (2) A judgment in a proceeding for
imposition of a remedial sanction may be appealed in the same manner as from a
judgment in an action at law. An appeal from a judgment imposing a punitive
sanction shall be in the manner provided for appeals in ORS chapter 138.
Appeals from judgments imposing sanctions for contempt in municipal courts and
justice courts shall be in the manner provided by law for appeals from those
courts.
     (3)(a) If a motion to initiate proceedings
to impose remedial sanctions is filed in a related proceeding under ORS 33.055
(3) before entry of judgment in the related proceeding, and the court
determines that the defendant is in contempt, the court may suspend imposition
of sanctions and entry of judgment on the contempt until entry of judgment in
the related proceeding.
     (b) If a motion to initiate proceedings to
impose remedial sanctions is filed in a related proceeding under ORS 33.055 (3)
before entry of judgment in the related proceeding, and the court denies the
motion or declines to impose sanctions, the court shall enter judgment on that
denial or determination only as part of the judgment in the related proceeding.
     (4) An appeal from a contempt judgment
shall not stay any action or proceeding to which the contempt is related. [1991
c.724 §11; 2003 c.576 §233; 2005 c.568 §28]
     33.130 [Repealed by 1991 c.724 §32]
     33.135
Limitations of actions. (1)
Except as provided in subsection (5) of this section, proceedings under ORS
33.055 to impose remedial sanctions for contempt and under ORS 33.065 to impose
punitive sanctions for contempt shall be commenced within two years of the act
or omission constituting the contempt.
     (2) For the purposes of this section, a
proceeding to impose remedial sanctions shall be deemed commenced as to each
defendant when the motion provided for in ORS 33.055 is filed.
     (3) Proceedings to impose punitive
sanctions are subject to ORS 131.135, 131.145 and 131.155.
     (4) The time limitations imposed by
subsection (1) of this section shall not act to bar proceedings to impose
sanctions for an act or omission that constitutes a continuing contempt at the
time contempt proceedings are commenced. The willful failure of an obligor, as
that term is defined in ORS 110.303, to pay a support obligation after that
obligation becomes a judgment is a contempt without regard to when the obligation
became a judgment.
     (5) Proceedings to impose remedial or
punitive sanctions for failure to pay a support obligation by an obligor, as
defined in ORS 110.303, shall be commenced within 10 years of the act or
omission constituting contempt. [1991 c.724 §12; 2005 c.560 §15]
     33.140 [Repealed by 1991 c.724 §32]
     33.145
Rules. The Supreme Court may
adopt rules to carry out the purposes of ORS 33.015 to 33.155. [1991 c.724 §13]
     33.150 [Repealed by 1991 c.724 §32]
     33.155
Applicability. ORS 33.015 to
33.145 apply to every court and judicial officer of this state, including
municipal, county and justice courts. Rules adopted by the Supreme Court apply
to those courts, but the application of such rules to municipal, county and
justice courts does not confer any supervisory or administrative authority on
the Supreme Court or the State Court Administrator with respect to those
courts. [1991 c.724 §14]
     33.210 [Amended by 1979 c.284 §67; 1989 c.955 §1;
renumbered 36.300 in 1989]
     33.220 [Renumbered 36.305 in 1989]
     33.230 [Amended by 1979 c.284 §68; renumbered
36.310 in 1989]
     33.240 [Renumbered 36.315 in 1989]
     33.250 [Renumbered 36.320 in 1989]
     33.260 [Renumbered 36.325 in 1989]
     33.270 [Renumbered 36.330 in 1989]
     33.280 [Renumbered 36.335 in 1989]
     33.290 [Renumbered 36.340 in 1989]
     33.300 [Amended by 1985 c.496 §19; renumbered
36.345 in 1989]
     33.310 [Amended by 1985 c.496 §20; renumbered
36.350 in 1989]
     33.320 [Amended by 1985 c.496 §21; renumbered
36.355 in 1989]
     33.330 [Renumbered 36.360 in 1989]
     33.340 [Amended by 1985 c.496 §22; renumbered
36.365 in 1989]
     33.350 [1983 c.670 §1; 1985 c.342 §3; renumbered
36.400 in 1989]
     33.360 [1983 c.670 §2; 1987 c.116 §1; 1987 c.125 §1;
renumbered 36.405 in 1989]
     33.370 [1983 c.670 §3; 1987 c.116 §2; renumbered
36.410 in 1989]
     33.380 [1983 c.670 §4; 1985 c.342 §4; 1987 c.116 §3;
renumbered 36.415 in 1989]
     33.390 [1983 c.670 §5; renumbered 36.420 in 1989]
     33.400 [1983 c.670 §6; renumbered 36.425 in 1989]
CHANGE OF
NAME
     33.410
Jurisdiction; grounds.
Application for change of name of a person may be heard and determined by the
probate court or, if the circuit court is not the probate court, the circuit
court if its jurisdiction has been extended to include this section pursuant to
ORS 3.275 of the county in which the person resides. The change of name shall
be granted by the court unless the court finds that the change is not
consistent with the public interest. [Amended by 1967 c.534 §11; 1975 c.733 §1]
     33.420
Notice of application and judgment; notice for change of name of minor child. (1) Before entering a judgment for a change
of name, except as provided in ORS 109.360, the court shall require public
notice of the application to be given, that all persons may show cause why the
same should not be granted. The court shall also require public notice to be
given of the change after the entry of the judgment.
     (2) Before entering a judgment for a
change of name in the case of a minor child the court shall require that, in
addition to the notice required under subsection (1) of this section, written
notice be given to the parents of the child, both custodial and noncustodial,
and to any legal guardian of the child.
     (3) Notwithstanding subsection (2) of this
section, notice of an application for the change of name of a minor child need
not be given to a parent of the child if the other parent of the child files a
verified statement in the change of name proceeding that asserts that the minor
child has not resided with the other parent and that the other parent has not
contributed or tried to contribute to the support of the child. [Amended by
1983 c.369 §6; 1997 c.872 §22; 2001 c.779 §12; 2003 c.576 §308]
     33.430
Change of name on birth certificate; court conference with child. (1) In the case of a change, by court order,
of the name of the parents of any minor child, if the childÂ’s birth certificate
is on file in this state, the State Registrar of the Center for Health
Statistics, upon receipt of a certified copy of the court order changing the name,
together with the information required to locate the original birth certificate
of the child, shall prepare a new birth certificate for the child in the new
name of the parents of the child. The name of the parents as so changed shall
be set forth in the new certificate, in place of their original name.
     (2) The evidence upon which the new
certificate was made, and the original certificate, shall be sealed and filed
by the State Registrar of the Center for Health Statistics, and may be opened
only upon demand of the person whose name was changed, if of legal age, or by
an order of a court of competent jurisdiction.
     (3) When a change of name by parents will
affect the name of their child under subsection (1) of this section, the court,
on its own motion or on request of a child of the parents, may take testimony
from or confer with the child and may exclude from the conference the parents
and other persons if the court finds that such action would be in the best
interests of the child. However, the court shall permit an attorney for the
parents to attend the conference, and the conference shall be reported. If the
court finds that a change of name would not be in the best interests of the
child, the court may provide in the order changing the name of the parents that
such change of name shall not affect the child, and a new birth certificate
shall not be prepared for the child. [Amended by 1983 c.369 §7; 2005 c.22 §25]
     33.440
Application by minor child; court conference. When a minor child applies for a change of name under ORS 33.410, the
court may, upon its own motion, confer with the child and may exclude from the
conference the parents and other persons if the court finds that such action
would be in the best interests of the child. However, the court shall permit an
attorney for the child to attend the conference, and the conference shall be
reported. [1983 c.369 §5]
CHANGE OF SEX
     33.460
Jurisdiction; grounds; procedure. (1) A court that has jurisdiction to determine an application for
change of name of a person under ORS 33.410 and 33.420 may order a legal change
of sex and enter a judgment indicating the change of sex of a person whose sex
has been changed by surgical procedure.
     (2) The court may order a legal change of
sex and enter the judgment in the same manner as that provided for change of
name of a person under ORS 33.410 and 33.420.
     (3) If a person applies for a change of
name under ORS 33.410 and 33.420 at the time the person applies for a legal
change of sex under this section, the court may order change of name and legal
change of sex at the same time and in the same proceeding. [1981 c.221 §1; 1997
c.872 §23; 2003 c.576 §309]
SURETIES
     33.510
Discharge of surety or letter of credit issuer on application of surety or
issuer. The surety or the
representatives of any surety upon the bond of any trustee, committee,
guardian, assignee, receiver, executor, administrator or other fiduciary, and
any irrevocable letter of credit issuer for any trustee, committee, guardian,
assignee, receiver, executor, administrator or other fiduciary is entitled as a
matter of right to be discharged from liability as provided in this section,
and to that end may, on notice to the principal named in the bond or
irrevocable letter of credit, apply to the court that accepted the bond or
irrevocable letter of credit or to the court of which the judge who accepted
the bond or irrevocable letter of credit was a member or to any judge thereof,
praying to be relieved from liability for the act or omission of the principal
occurring after the date of the order relieving such person, and that the
principal be required to account and give new sureties or cause to be issued
new letters of credit. Notice of the application shall be served on the
principal personally not less than five days prior to the date on which the
application is to be made, unless it satisfactorily appears to the court or
judge that personal service cannot be had with due diligence within the state,
in which case notice may be given by personal service without the state or in
such manner as the court or judge directs. Pending the hearing of the
application the court or judge may restrain the principal from acting except to
preserve the trust estate until further order. If upon the return of the application
the principal fails to file a new bond or irrevocable letter of credit to the
satisfaction of the court or judge, the court or judge must make an order
requiring the principal to file a new bond or irrevocable letter of credit
within a period not exceeding five days. If the new bond or irrevocable letter
of credit is filed upon the return of the application, or within the time fixed
by the order, the court or judge must make a judgment or order requiring the
principal to account for all acts and proceedings to and including the date of
the judgment or order, and to file such account within a time fixed, not
exceeding 20 days, and discharge the surety or letter of credit issuer making
application from liability for any act or default of the principal subsequent
to the date of the judgment or order. If the principal fails to file a new bond
or irrevocable letter of credit within the time specified, a judgment or order
must be made revoking the appointment of the principal or removing and
requiring the principal to file an account within not more than 20 days. If the
principal fails to file the account, the surety or letter of credit issuer may
make and file an account with like force and effect as though filed by the
principal, and upon settlement thereof and upon the trust fund or estate being
found or made good and paid over or properly secured, credit shall be given for
all commissions, costs, disbursements and allowances to which the principal
would be entitled were the principal accounting, and allowance shall be made to
the surety or letter of credit issuer for the expense incurred in filing the
account and procuring the settlement thereof. After the filing of the account,
either by the principal or the surety or the letter of credit issuer, the court
or judge must, upon the petition of the principal or surety or the letter of
credit issuer, issue an order requiring all persons interested in the estate or
trust to attend a settlement of the account at a time and place therein
specified, and upon the trust fund or estate being found or made good and paid
over or properly secured, the surety or the letter of credit issuer shall be
discharged from all liability. Upon demand in writing by the principal, the
surety or the letter of credit issuer shall return any compensation that has
been paid for the unexpired period of the bond or the letter of credit. [Amended
by 1991 c.331 §11; 2003 c.576 §310]
     33.520
Discharge of surety or letter of credit issuer on application of principal. Any trustee, committee, guardian, assignee,
receiver, executor, administrator or other fiduciary shall be entitled to have
any surety on the bond of the fiduciary or of any irrevocable letter of credit
issuer discharged from liability thereon, and the fiduciary may file a new bond
or irrevocable letter of credit as provided in this section. The fiduciary may,
on written notice to the surety or letter of credit issuer and to all other
interested persons, apply to the court that accepted the bond or irrevocable
letter of credit, or to a judge thereof, praying that the surety or irrevocable
letter of credit be discharged from liability thereon, and that the principal
be allowed to file a new bond or irrevocable letter of credit and to account.
Notice of the application shall be served on the surety or letter of credit
issuer and on each of the persons interested, within the state, not less than
10 days prior to the date on which the application is to be made, unless it
satisfactorily appears to the court or judge that the notice cannot with due
diligence be served within the state, in which case notice may be given in such
manner as the court or judge shall direct. Upon the return of the application,
the principal may file a new bond or irrevocable letter of credit satisfactory
to the court or judge, and therewith file an account of all proceedings,
whereupon the court or judge shall proceed, upon due notice to all persons
interested, to judicially settle the account and duly credit and charge the
principal; and upon the trust fund or estate being found or made good and paid
over or properly secured, the surety or letter of credit issuer shall be
discharged from all liability. [Amended by 1991 c.331 §12]
     33.530
Liability of sureties or letter of credit issuer after termination of bond or
letter of credit. (1) When a
bond or an irrevocable letter of credit of any personal representative,
guardian or conservator is terminated upon the issuance of a new bond or
irrevocable letter of credit to the personal representative, guardian or
conservator by a new surety or letter of credit issuer, the former surety or
letter of credit issuer shall not be liable on the old bond or irrevocable
letter of credit for any acts or omissions of the personal representative,
guardian or conservator which occur after the issuance of the new bond or
irrevocable letter of credit.
     (2) A new surety for a personal
representative, guardian or conservator who issues a new bond or irrevocable
letter of credit after the termination of a previous bond or irrevocable letter
of credit written by another surety or letter of credit issuer for a personal
representative, guardian or conservator shall not be liable for any acts or
omissions of the personal representative, guardian or conservator which
occurred prior to the issuance of the new bond or irrevocable letter of credit.
[1983 c.613 §§2,3; 1991 c.331 §13]
EVALUATING
SECURITIES OF SECURED CREDITOR
     33.610
Evaluating securities of secured creditor. In the administration of a decedentÂ’s estate, or whenever the assets
of any person, partnership or corporation are being administered in
receivership or any liquidation proceedings, or under an assignment for the
benefit of creditors, the value of securities held by secured creditors shall
be determined by converting the same into money according to the terms of the
agreement pursuant to which the securities were delivered to the creditors, or
by the creditors and the person or official liquidating the assets by
agreement, arbitration, compromise or litigation. Where the proceedings are in
court, the determination shall be subject to the control or decision of the
court. If, under an assignment for the benefit of creditors, the secured
creditor and the assignee cannot, by agreement, arbitration or compromise,
determine the value, either the assignee or the creditor may apply to a court
of competent jurisdiction in the place of residence of the assignee for
determination of the value by declaratory judgment, or otherwise. In all cases,
the amount of the determined value shall be credited upon the secured claim and
a general or unsecured creditorÂ’s dividend shall be paid only on the uncredited
balance, if any, of the claim. Nothing contained in this section shall be
construed to compel any creditor holding security to file a claim for participation
in any such estate or proceeding, or to compel the creditor, if the creditor
does not file a claim, to foreclose or realize upon the security of the
creditor.
DETERMINATION
OF LEGALITY OF MUNICIPAL CORPORATION ORGANIZATION AND ACTIONS
     33.710
Definitions; judicial examination to determine legality of any municipal
corporationÂ’s organization and actions. (1) As used in ORS 33.710 and 33.720, unless the context requires
otherwise:
     (a) “Governing body” means the city
council, board of commissioners, board of directors, county court or other
managing board of a municipal corporation including a board managing a
municipally owned public utility or a dock commission.
     (b) “Municipal corporation” means any
county, city, port, school district, union high school district, community
college district and all other public or quasi-public corporations including a
municipal utility or dock commission operated by a separate board or
commission.
     (2) The governing body may commence a
proceeding in the circuit court of the county in which the municipal
corporation or the greater part thereof is located, for the purpose of having a
judicial examination and judgment of the court as to the regularity and
legality of:
     (a) The proceedings in connection with the
establishment or creation of the municipal corporation, including any action or
proceedings proclaiming the creation of the municipal corporation or declaring
the result of any election therein.
     (b) The proceedings of the governing body
and of the municipal corporation providing for and authorizing the issue and
sale of bonds of the municipal corporation, whether the bonds or any of them
have or have not been sold or disposed of.
     (c) Any order of the governing body
levying a tax.
     (d) The authorization of any contract and
as to the validity of the contract, whether or not it has been executed.
     (e) Any decision of the governing body
that raises novel or important legal issues that would be efficiently and
effectively resolved by a proceeding before the decision becomes effective,
when the decision will:
     (A) Require a significant expenditure of
public funds;
     (B) Significantly affect the lives or
businesses of a significant number of persons within the boundaries of the
governing body; or
     (C) Indirectly impose a significant
financial burden on the cost of conducting business within the boundaries of
the governing body.
     (f) The authority of the governing body to
enact any ordinance, resolution or regulation.
     (g) Any ordinance, resolution or
regulation enacted by the governing body, including the constitutionality of
the ordinance, resolution or regulation.
     (3) All proceedings of the municipal
corporation may be judicially examined and determined in one special
proceeding, or any part thereof may be separately examined and determined by
the court.
     (4) Nothing in this section allows a
governing body to have a judicial examination and judgment of the court without
a justiciable controversy. [Amended by 1975 c.133 §1; 2003 c.548 §1]
     33.720
Proceeding in rem; practice and procedure as in action not triable by right to
jury; service by publication; appeal; costs. (1) The determination authorized by ORS 33.710 shall be in the nature
of a proceeding in rem; and the practice and procedure therein shall follow the
practice and procedure of an action not triable by right to a jury, as far as
the same is consistent with the determination sought to be obtained, except as
provided in this section.
     (2) Jurisdiction of the municipal
corporation shall be obtained by the publication of notice directed to the
municipal corporation; and jurisdiction of the electors of the municipal
corporation shall be obtained by publication of notice directed to all
electors, freeholders, taxpayers and other interested persons, without naming
such electors, freeholders, taxpayers and other interested persons
individually. The notice shall be served on all parties in interest by
publication thereof for at least once a week for three successive weeks in a
newspaper of general circulation published in the county where the proceeding
is pending, or if no such newspaper is published therein, then in a contiguous
county. Jurisdiction shall be complete within 10 days after the date of
completing publication of the notice as provided in this section.
     (3) Any person interested may at any time
before the expiration of the 10 days appear and contest the validity of such
proceeding, or of any of the acts or things therein enumerated. Such proceeding
shall be tried forthwith and judgment rendered as expeditiously as possible
declaring the matter so contested to be either valid or invalid. Any order or
judgment in the course of such proceeding may be made and rendered by the judge
in vacation or otherwise; and for that purpose, the court shall be deemed at
all times to be in session and the act of the judge in making the order or
judgment shall be the act of the court.
     (4) Any party may appeal to the Court of
Appeals from a judgment rendered in such proceeding. The court, in inquiring
into the regularity, legality or correctness of any proceeding of the municipal
corporation or its governing body shall disregard any error, irregularity or
omission which does not affect the substantial rights of the parties to the
special proceeding, and may approve the proceedings in part and may disapprove
and declare illegal or invalid in part other or subsequent proceedings, or may
approve or disapprove the proceedings, or may approve the proceedings in part
and disapprove the remainder thereof.
     (5) Costs of the proceeding may be allowed
and apportioned between the parties in the discretion of the court.
     (6) Upon conclusion of a proceeding
authorized by ORS 33.710 (2)(b), including any appeal of a judgment, the
judgment entered in the proceeding is binding upon the parties and all other
persons. Claim preclusion and issue preclusion apply to all matters adjudicated
in the proceeding. Except for an action to enforce a judgment, the courts of
this state do not have jurisdiction over an action by or against the governing
body or municipal corporation named in the judgment if the purpose of the
action is to seek judicial review or judicial examination, directly or
indirectly, of a matter adjudicated in the proceeding. [Amended by 1975 c.133 §2;
1979 c.284 §69; 2001 c.537 §1; 2003 c.576 §234]
     33.810 [1955 c.522 §1; repealed by 1967 c.460 §8]
     33.820 [1955 c.522 §2; repealed by 1967 c.460 §8]
     33.830 [1955 c.522 §3; repealed by 1967 c.460 §8]
TRANSFER OF
STRUCTURED SETTLEMENT PAYMENT RIGHTS
     33.850
Definitions for ORS 33.850 to 33.875. As used in ORS 33.850 to 33.875:
     (1) “Annuity issuer” means an insurer that
has entered into a contract to fund periodic payments under a structured
settlement agreement.
     (2) “Obligor” means a party that has a
continuing obligation to make periodic payments to a payee under a structured
settlement agreement or an agreement that provides for a qualified assignment
as defined in section 130 of the Internal Revenue Code, as of January 1, 2006.
     (3) “Payee” means an individual who is
receiving tax-free payments under a structured settlement agreement and
proposes to make a transfer of payment rights.
     (4) “Payment rights” means rights to
receive periodic payments under a structured settlement agreement, whether from
the obligor or the annuity issuer.
     (5) “Periodic payments” includes both
recurring payments and scheduled future lump sum payments.
     (6) “Responsible administrative authority”
means a government authority vested by law with exclusive jurisdiction over the
original tort claim or workersÂ’ compensation claim that was resolved in a
structured settlement agreement.
     (7) “Structured settlement agreement”
means an agreement, judgment, stipulation or release embodying the terms of an
arrangement for periodic payment of damages from an obligor or an annuity
issuer for:
     (a) Personal injuries or sickness
established by settlement or judgment in resolution of a tort claim; or
     (b) Periodic payments in settlement of a
workersÂ’ compensation claim.
     (8) “Terms of the structured settlement
agreement” includes the terms of:
     (a) A structured settlement agreement;
     (b) An annuity contract;
     (c) An agreement that provides for a
qualified assignment as defined in section 130 of the Internal Revenue Code, as
of January 1, 2006; and
     (d) Any order or other approval of any
court, responsible administrative authority or other government authority that
authorized or approved the structured settlement agreement.
     (9) “Transfer” means any sale, assignment,
pledge or other alienation or encumbrance of payment rights made by a payee for
consideration. “Transfer” does not include the creation or perfection of an
unspecified security interest in all of the payeeÂ’s payment rights entered into
with an insured depository institution, or an agent or successor in interests
of the insured depository institution, in the absence of any action to redirect
the payments under the structured settlement agreement to the insured
depository institution or otherwise to enforce a security interest against the
payment rights.
     (10) “Transfer agreement” means an
agreement providing for a transfer of payment rights.
     (11) “Transferee” means a party acquiring
or proposing to acquire payment rights through a transfer agreement. [2005
c.173 §1]
     Note: Section 7, chapter 173, Oregon Laws 2005,
provides:
     Sec.
7. Sections 1 to 6 of this
2005 Act [33.850 to 33.875] apply to transfer agreements entered into on or
after the effective date of this 2005 Act [January 1, 2006]. [2005 c.173 §7]
     33.855
Transfer of payment rights; application; notice. (1) A payee may transfer payment rights
under ORS 33.850 to 33.875 if:
     (a) The payee is domiciled in this state;
     (b) The domicile or principal place of
business of the obligor or the annuity issuer is located in this state;
     (c) The structured settlement agreement
was approved by a court or responsible administrative authority in this state;
or
     (d) The structured settlement agreement is
expressly governed by the laws of this state.
     (2) Prior to transferring payment rights
under ORS 33.850 to 33.875, the transferee shall file an application for
approval of the transfer in:
     (a) The county in which the payee resides;
     (b) The county in which the obligor or the
annuity issuer maintains its principal place of business; or
     (c) Any court or before any responsible
administrative authority that approved the structured settlement agreement.
     (3) Not less than 20 days prior to the
scheduled hearing on an application for approval of a transfer of payment
rights, the transferee shall send notice of the proposed transfer to:
     (a) The payee;
     (b) Any beneficiary irrevocably designated
under the annuity contract to receive payments following the payeeÂ’s death;
     (c) The annuity issuer;
     (d) The obligor; and
     (e) Any other party that has continuing
rights or obligations under the structured settlement agreement that is the
subject of the hearing.
     (4) The notice sent under subsection (3)
of this section shall include:
     (a) A copy of the transferee’s
application.
     (b) A copy of the transfer agreement.
     (c) A copy of the disclosure statement
provided to the payee as required under ORS 33.860.
     (d) A listing of each person for whom the
payee is legally obligated to provide support, including the age of each of
those persons.
     (e) Notification that any person receiving
notice under subsection (3) of this section is entitled to support, oppose or
otherwise respond to the transfereeÂ’s application, either in person or by
counsel, by submitting written comments to the court or responsible
administrative authority or by participating in the hearing.
     (f) Notification of the time and place of
the hearing and notification of the manner in which and the time by which
written responses to the application must be filed, which shall not be less
than 15 days after service of the transfereeÂ’s notice, in order to be
considered by the court or responsible administrative authority. [2005 c.173 §2]
     Note: See note under 33.850.
     33.860
Statement containing terms of transfer. Not less than three days prior to the day on which a payee is
scheduled to sign a transfer agreement, a transferee shall provide the payee
with a statement in not less than 14-point type that sets forth:
     (1) The amounts and due dates of the
structured settlement payments to be transferred.
     (2) The aggregate amount of the payments
to be transferred.
     (3) The discounted present value of the
payments and the rate used in calculating the discounted present value. The
discounted present value shall be calculated by using the most recently
published applicable federal rate for determining the present value of an
annuity, as issued by the Internal Revenue Service.
     (4) The amount payable to a payee as the
result of a transfer. The amount set forth in this subsection shall be
calculated before any reductions are made for transfer expenses required to be
listed under subsection (5) of this section or any related disbursements.
     (5) An itemized listing of all applicable
transfer expenses and the transfereeÂ’s best estimate of the amount of any
attorney fees and disbursements. For the purposes of this subsection, “transfer
expenses”:
     (a) Includes all expenses of a transfer
that are required under the transfer agreement to be paid by the payee or
deducted from the amount payable to a payee as the result of a transfer.
     (b) Does not include attorney fees and
related disbursements payable in connection with the transfereeÂ’s application
for approval of the transfer or preexisting obligations of the payee payable
for the payeeÂ’s account from the proceeds of a transfer.
     (6) The amount calculated by subtracting
the aggregate amount of the actual and estimated transfer expenses required to
be listed under subsection (5) of this section from the amount identified in
subsection (4) of this section.
     (7) The amount of any penalties or
liquidated damages payable by the payee in the event of a breach of the
transfer agreement by the payee.
     (8) A statement that the payee has the
right to cancel the transfer agreement, without penalty or further obligation,
not later than the third business day after the date the agreement is signed by
the payee. [2005 c.173 §3]
     Note: See note under 33.850.
     33.865
Required findings by court or responsible administrative authority. A transfer of payment rights under ORS
33.850 to 33.875 is not effective and an obligor or annuity issuer is not
required to make any payments directly or indirectly to a transferee unless the
transfer has been approved in advance in a final court order or order of a
responsible administrative authority based on express findings by the court or
authority that:
     (1) The transfer is in the best interest
of the payee, taking into account the welfare and support of all persons for
whom the payee is legally obligated to provide support.
     (2) The payee has been advised in writing
by the transferee to seek advice from an attorney, certified public accountant,
actuary or other licensed professional adviser regarding the transfer, and the
payee has either received the advice or knowingly waived advice in writing.
     (3) The transfer does not contravene any
applicable statute or order of any court or other government authority. [2005
c.173 §4]
     Note: See note under 33.850.
     33.870
Liability of parties after transfer. Following a transfer of payment rights under ORS 33.850 to 33.875:
     (1) The obligor and the annuity issuer
shall, as to all parties except the transferee, be discharged and released from
all liability for the transferred payments.
     (2) The transferee shall be liable to the
obligor and the annuity issuer:
     (a) If the transfer contravenes the terms
of the structured settlement agreement, for any taxes incurred by the parties
as a consequence of the transfer; and
     (b) For any other liabilities or costs,
including reasonable costs and attorney fees, arising from compliance by the
parties with the order of the court or responsible administrative authority or
arising as a consequence of the transfereeÂ’s failure to comply with ORS 33.850
to 33.875.
     (3) An annuity issuer or an obligor may
not be required to divide any periodic payments between the payee and any transferee
or assignee or between two or more transferees or assignees.
     (4) Any further transfer of payment rights
by the payee may be made only after compliance with all of the requirements of
ORS 33.850 to 33.875. [2005 c.173 §5]
     Note: See note under 33.850.
     33.875
Limitations on transfers.
(1) The provisions of ORS 33.850 to 33.875 may not be waived by any payee.
     (2) A transfer agreement entered into on
or after January 1, 2006, by a payee who resides in this state shall provide
that disputes under the transfer agreement, including any claim that the payee
has breached the agreement, shall be determined under the laws of this state. A
transfer agreement may not authorize the transferee or any other party to
confess judgment or consent to entry to judgment against the payee.
     (3) A transfer of payment rights may not
extend to any payments that are life contingent unless, prior to the date on
which the payee signs the transfer agreement, the transferee has established
and has agreed to maintain procedures reasonably satisfactory to the annuity
issuer and the obligor for:
     (a) Periodically confirming the payee’s
survival.
     (b) Giving the annuity issuer and the
obligor prompt written notice in the event of the payeeÂ’s death.
     (4) A payee who proposes to make a
transfer of payment rights does not incur any penalty, forfeit any application
fee or other payment, or otherwise incur any liability to the proposed
transferee or a assignee based on any failure of the transfer to satisfy the
conditions of ORS 33.850 to 33.875.
     (5) Nothing in ORS 33.850 to 33.875 shall
be construed to authorize a transfer of payment rights in contravention of any
law or to imply that any transfer under a transfer agreement entered into prior
to January 1, 2006, is valid or invalid.
     (6) Compliance with the requirements set
forth in ORS 33.860 and fulfillment of the conditions set forth in ORS 33.855
shall be solely the responsibility of the transferee in any transfer of payment
rights, and neither the obligor nor the annuity issuer shall bear any
responsibility for, or any liability arising from, noncompliance with the
requirements or failure to fulfill the conditions. [2005 c.173 §6]
     Note: See note under 33.850.
_______________
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