COMMITTEE SUBSTITUTE
FOR
H. B. 2114
(By Delegate Ellem)
(Originating in the Committee on the Judiciary)
[March 27, 2009]
A BILL to amend and reenact §48-14-407 and §48-14-501 of the Code
of West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated §48-15-506, all
relating to child support source of income; authorizing the
bureau of child support enforcement to commence a contempt
action against a source of income; providing penalty for
sources of income failing to withhold; and providing a
specific action for source of income contempt.
Be it enacted by the Legislature of West Virginia:
That §48-14-407 and §48-14-501 of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that said code be
amended by adding thereto a new section, designated §48-15-506, all
to read as follows:
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-407. Contents of notice to source of income.
(a) The source of income of any obligor who is subject to withholding, upon being given notice of withholding, shall withhold
from such obligor's income the amount specified by the notice and
pay such amount to the Bureau for Child Support Enforcement for
distribution. The notice given to the source of income shall
contain only such information as may be necessary for the source of
income to comply with the withholding order and no source of income
may require additional information or documentation. Such notice
to the source of income shall include, at a minimum, the following:
(1) The amount to be withheld from the obligor's disposable
earnings and a statement that the amount to be withheld for support
and other purposes, including the fee specified under subdivision
(3) of this subsection, may not be in excess of the maximum amounts
permitted under Section 303(b) of the federal Consumer Credit
Protection Act or limitations imposed under the provisions of this
code;
(2) That the source of income shall send the amount to be
withheld from the obligor's income to the Bureau for Child Support
Enforcement, along with such identifying information as may be
required by the bureau, the same day that the obligor is paid;
(3) That, in addition to the amount withheld under the
provisions of subdivision (1) of this subsection, the source of
income may deduct a fee, not to exceed one dollar, for
administrative costs incurred by the source of income for each
withholding;
(4) That withholding is binding on the source of income until
further notice by the Bureau for Child Support Enforcement or until the source of income notifies the Bureau for Child Support
Enforcement of a termination of the obligor's employment in
accordance with the provisions of section four hundred twelve of
this article;
(5) That the source of income is subject to a fine for
discharging an obligor from employment, refusing to employ or
taking disciplinary action against any obligor because of the
withholding;
(6) That when the source of income fails to withhold income in
accordance with the provisions of the notice, the source of income
is liable for the accumulated amount the source of income should
have withheld from the obligor's income.
A source of income that
fails to withhold or transfer funds withheld from the obligor's
income is also liable to the obligee for interest on the funds at
the rate applicable to judgments under section thirty-one, article
six, chapter fifty-six of this code, computed from the date the
funds were required to be withheld or transferred. A source of
income that has failed to withhold or transfer funds withheld from
the obligor's income is subject to contempt sanctions under section
five hundred six of this article. If the source of income is an
employer or independent contractor and fails to withhold or
transfer funds withheld from the obligor's income, a court may
award the obligor twice the wages lost as a result of this
violation, impose a civil fine of not less than $500, and award the
attorney fees of the obligee or bureau of child support enforcement
incurred in enforcing the source of income's obligation. The liabilities in this subdivision apply to an intentional
noncompliance.
(7) That the withholding under the provisions of this part
shall have priority over any other legal process under the laws of
this state against the same income and shall be effective despite
any exemption that might otherwise be applicable to the same
income;
(8) That when an employer has more than one employee who is an
obligor who is subject to wage withholding from income under the
provisions of this code, the employer may combine all withheld
payments to the Bureau for Child Support Enforcement when the
employer properly identifies each payment with the information
listed in this part. A source of income is liable to an obligee,
including the State of West Virginia or the Department of Health
and Human Resources where appropriate, for any amount which the
source of income fails to identify with the information required by
this part and is therefore not received by the obligee;
(9) That the source of income shall implement withholding no
later than the first pay period or first date for payment of income
that occurs after fourteen days following the date the notice to
the source of income was mailed; and
(10) That the source of income shall notify the Bureau for
Child Support Enforcement promptly when the obligor terminates his
or her employment or otherwise ceases receiving income from the
source of income and shall provide the obligor's last known address
and the name and address of the obligor's new source of income, if known.
(b) The Bureau for Child Support Enforcement shall, by
administrative rule, establish procedures for promptly refunding to
obligors amounts which have been improperly withheld under the
provisions of this part. When a court reduces an order of support,
the Bureau for Child Support Enforcement is not liable for
refunding amounts which have been withheld pursuant to a court
order enforceable at the time that the bureau received the funds
unless the funds were kept by the state. The obligee or obligor
who received the benefit of the withheld amounts shall be liable
for promptly refunding any amounts which would constitute an
overpayment of the support obligation.
§48-14-501. Commencement of contempt action
In addition to or in lieu of the other remedies provided by
this article for the enforcement of support orders, the bureau for
child support enforcement may commence a civil or criminal contempt
proceeding in accordance with the provisions of section 1-304
against an obligor
, or section 14-506 against a source of income,
who is alleged to have willfully failed or refused to comply with
the order of a court of competent jurisdiction requiring the
payment of support. Such proceeding shall be instituted by filing
a petition for an order to show cause why the obligor
or the source
of income should not be held in contempt.
§48-14-506. Source of income contempt.
(a) Notices for income withholding issued pursuant to section
14-406, are binding on the source of income after the notice for income withholding has been transmitted and received by the source
of income.
(b) An obligee or the bureau of child support enforcement may
initiate a contempt action against a source of income, within the
action that created the support obligation, by serving an order to
show cause upon the source of income.
(c) The source of income is presumed to be in contempt:
(1) if the source of income has intentionally failed to
withhold support after receiving the order or notice for income
withholding; or
(2) upon presentation of pay stubs or similar documentation
showing the source of income withheld support and demonstration
that the source of income intentionally failed to remit support to
the bureau of child support enforcement.
(d) Upon a finding that a source of income is in contempt for
intentionally failing to withhold or transmit support after
receiving a notice for income withholding issued pursuant to
section 14-406, the court shall order that the source of income is
liable to the obligee or the bureau of child support enforcement
for any amounts required to be withheld that were not paid and is
also liable to the obligee for interest on the funds at the rate
applicable to judgments under section thirty-one, article six,
chapter fifty-six of this code, computed from the date the funds
were required to be withheld or transferred. The court may enter
a judgment against the source of income for support not withheld or
remitted and the accrued interest. If a source of income is an employer or independent contractor, the court may also:
(1) award the obligor twice the wages lost as a result of this
violation;
(2)assess a civil fine of not more than $500; and
(3) impose any other sanctions authorized under section 1-305
of this chapter.
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