WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary.
A BILL to amend and
reenact §48-11-105 and §48-11-106 of the Code of West Virginia, 1931, as
amended; all relating to requiring in the event the amount of child support to
be paid is modified by a later child support order, the amount to be paid is
effective on the date the petition for the modification was filed, not the date
the subsequent order was entered.
Be it enacted by the
Legislature of West Virginia:
That §48-11-105 and §48-11-106
of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 11. SUPPORT OF
CHILDREN.
§48-11-105. Modification
of child support order.
(a) The court may modify a
child support order, for the benefit of the child, when a motion is made that
alleges a change in the circumstances of a parent or another proper person or
persons. A motion for modification of a child support order may be brought by a
custodial parent or any other lawful custodian or guardian of the child, by a
parent or other person obligated to pay child support for the child or by the
Bureau for Child Support Enforcement of the Department of Health and Human
Resources of this state. In the event the amount of child support to be paid
is modified by a later child support order, the amount of child support to be
paid is effective on the date the petition for the modification was filed, not
the date the subsequent order was entered.
(b) The provisions of the
order may be modified if there is a substantial change in circumstances. If
application of the guideline would result in a new order that is more than
fifteen percent different, then the circumstances are considered a substantial
change.
(c) An order that modifies
the amount of child support to be paid shall conform to the support guidelines
set forth in section one hundred one, article thirteen, et seq., of this
chapter unless the court disregards the guidelines or adjusts the award as
provided in section seven hundred two of said article.
(d) The Supreme Court of
Appeals shall make available to the courts a standard form for a petition for
modification of an order for support, which form will allege that the existing
order should be altered or revised because of a loss or change of employment or
other substantial change affecting income or that the amount of support
required to be aid is not within fifteen percent of the child support guidelines.
The clerk of the circuit court and the secretary-clerk of the family court
shall make the forms available to persons desiring to represent themselves in
filing a motion for modification of the support award.
(e) Upon entry of an order
modifying a child support amount the court shall, no later than five days from
entry of the order, provide a copy of the modified order to the Bureau for
Child Support Enforcement. If an overpayment to one of the parties occurs as a
result of the modified terms of the order, funds properly withheld by the
Bureau for Child Support Enforcement pursuant to the terms of the original
order shall not be returned until such time as the Bureau for Child Support
Enforcement receives repayment from the party in possession of the overpayment.
§48-11-106. Expedited
process for modification.
(a) An expedited process
for modification of a child support order may be utilized if:
(1) Either parent
experiences a substantial change of circumstances resulting in a decrease in
income due to loss of employment or other involuntary cause;
(2) An increase in income
due to promotion, change in employment or reemployment;
(3) Other such change in
employment status; or
(4) If a military parent is
called to military service.
(b) The party seeking the
recalculation of support and modification of the support order shall file a
description of the decrease or increase in income and an explanation of the
cause of the decrease or increase on a standardized form to be provided by the
secretary-clerk or other employee of the family court. The standardized form
shall be verified by the filing party. Any available documentary evidence shall
be filed with the standardized form. Based upon the filing and information
available in the case record, the amount of support shall be tentatively
recalculated.
(c) The secretary-clerk
shall serve a notice of the filing, a copy of the standardized form and the
support calculations upon the other party by certified mail, return receipt
requested, with delivery restricted to the addressee, in accordance with rule
4(d)(1)(D) of the West Virginia rules of civil procedure. The secretary-clerk
shall also mail a copy, by first-class mail, to the local office of the Bureau
for Child Support Enforcement for the county in which the family court is
located in the same manner as original process under rule 4(d) of the rules of
civil procedure.
(d) The notice shall fix a
date fourteen days from the date of mailing and inform the party that unless
the recalculation is contested and a hearing request is made on or before the
date fixed, the proposed modification will be made effective. If the filing is
contested, the proposed modification shall be set for hearing; otherwise, the
court shall enter an order for a judgment by default. Either party may move to
set aside a judgment by default, pursuant to the provisions of rule 55 or rule
60(b) of the rules of civil procedure.
(e) In the event the
amount of child support to be paid is modified pursuant to this section, the
amount of child support to be paid is effective from the date the petition for
the modification was filed.
(e) (f) If an obligor uses the provisions of this
section to expeditiously reduce his or her child support obligation, the order
that effected the reduction shall also require the obligor to notify the
obligee of reemployment, new employment or other such change in employment
status that results in an increase in income. If an obligee uses the provisions
of this section to expeditiously increase his or her child support obligation,
the order that effected the increase shall also require the obligee to notify
the obligor of reemployment, new employment or other such change in employment
status that results in an increase in income of the obligee.
(f) (g) The Supreme Court of Appeals shall develop
the standardized form required by this section.
NOTE: The purpose of this bill is
to require in the event the amount of child support to be paid is modified by a
later child support order, the amount of child support to be paid is effective
from the date the petition for the modification was filed, not the date the
subsequent order was entered.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.