Senate Bill No. 151
(By Senators Wiedebusch and Grubb)
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[Introduced January 23, 1995; referred to the
Committee on the Judiciary.]
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A BILL to amend and reenact section three, article five,
chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating
generally to the enforcement of spousal and child
support; and requiring the source of income to submit the
amount withheld from the obligor's income to the child
advocate office on the same day the obligor is paid.
Be it enacted by the Legislature of West Virginia:
That section three, article five, chapter
forty-eight-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and
reenacted to read as follows:
ARTICLE 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS AND VISITATION.
§48A-5-3. Withholding from income of amounts payable as
support.
(a) The withholding from an obligor's income of
amounts payable as spousal or child support shall be
enforced by the children's advocate in accordance with
the provisions of this section. Every support order
heretofore or hereafter entered by a circuit court or a
magistrate of this state and every support order entered
by a court of competent jurisdiction of another state
shall be considered to provide for an order of income
withholding in accordance with the provisions of section
fifteen-a or fifteen-b, article two, chapter forty-eight
of this code, notwithstanding the fact that such support
order does not in fact provide for such an order of
withholding.
(b) In any case in which immediate income
withholding is not required, the children's advocate
shall cause the mailing of a notice to the obligor
pursuant to this section when the support payments
required by the order are in arrears in an amount equal
to:
(1) One month's support, if the order requires
support to be paid in monthly installments;
(2) Four weeks' support, if the order requires
support to be paid in weekly or biweekly installments; or
(3) Two biweekly installments, if biweekly payments
are provided.
(c) If notice required by subsection (b) of this
section is appropriate, the children's advocate shall
determine the time for a meeting between the obligor and
the children's advocate and the time for a hearing before
the family law master, and shall then set forth in such
notice the times and places at which the meeting and
hearing will be held if withholding is contested. The
meeting and hearing may be scheduled on the same date,
but in no case shall the meeting with the advocate be
scheduled less than fifteen days after the date the
notice is mailed nor shall the hearing before the master
be scheduled more than twenty-one days after the date the
notice is mailed. The children's advocate shall send
such notice by first class mail to the delinquent
obligor. The notice shall inform the delinquent obligor of the following:
(1) The amount owed;
(2) That it is proposed that there be withholding
from the obligor's income of amounts payable as support,
and that if withholding is uncontested, or is contested
but determined appropriate, the amount withheld will be
equal to the amount required under the terms of the
current support order, plus amounts for any outstanding
arrearages;
(3) The definition of "income" as defined in section
three, article one of this chapter;
(4) That the withholding will apply to the obligor's
present source of income and to any future source of
income;
(5) That any action by the obligor to purposefully
minimize his or her income will result in the enforcement
of support being based upon potential and not just actual
earnings;
(6) That payment of the arrearage after the date of
the notice is not a bar to such withholding;
(7) That if the obligor fails to appear at the meeting, withholding will automatically occur as
described in the notice;
(8) That a mistake of fact exists only when there is
an error in the amount of current or overdue support
claimed in the notice, or there is a mistake as to the
identity of the obligor;
(9) That matters such as lack of visitation,
inappropriateness of the support award, or changed
financial circumstances of the obligee or the obligor
will not be considered at any hearing held pursuant to
the notice, but may be raised by the filing of a separate
petition;
(10) That if the obligor contests the withholding,
in writing, a meeting with the children's advocate will
be held at a time and place set forth in the notice, for
the purpose of attempting to settle any issues which are
contested, and that a hearing before the family law
master cannot be held until after the meeting with the
children's advocate occurs;
(11) That if the meeting with the children's
advocate fails to resolve the issues being contested, a hearing before the family law master will be held at a
time and place set forth in the notice, and that
following such hearing, the master will make a
recommended order to the circuit court;
(12) That a master's recommended order as to
withholding will become effective when it is confirmed
and entered by the circuit court, and that if the obligor
disagrees with the master's recommended order, he or she
will be given the opportunity to make objections known to
the circuit court; and
(13) That if, while the withholding is being
contested, it is determined that the obligor is in
arrears in an amount equal to or greater than one month's
support obligation, but the amount of the arrearage is
disputed, then income withholding for the current payment
of support will be instituted, and may not be stayed
pending a final determination as to the amount of
arrearages due.
(d) Withholding should occur when the support order
provides for immediate income withholding, or if
immediate income withholding is not so provided, and the withholding is contested, then after entry of the
master's recommended order by the circuit court. In any
case where withholding should occur, the source of income
shall proceed to withhold so much of the obligor's income
as is necessary to comply with the order authorizing such
withholding, up to the maximum amount permitted under
applicable law. Such withholding, unless otherwise
terminated under the provisions of this section, shall
apply to any subsequent source of income or any
subsequent period of time during which income is received
by the obligor.
(e) Notwithstanding any other provision of this code
to the contrary which provides for a limitation upon the
amount which may be withheld from earnings through legal
process, the amount of an obligor's aggregate disposable
earnings for any given workweek which can be withheld as
support payments is to be determined in accordance with
the provisions of this subsection, as follows:
(1) After ascertaining the status of the payment
record of the obligor under the terms of the support
order, the payment record shall be examined to determine whether any arrearages are due for amounts which should
have been paid prior to a twelve-week period which ends
with the workweek for which withholding is sought to be
enforced.
(2) If none of the withholding is for amounts which
came due prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or
dependent child other than the spouse or child for whom
the proposed withholding is being sought, the amount
withheld may not exceed fifty percent of the obligor's
disposable earnings for that week; and
(B) When the obligor is not supporting another
spouse or dependent child as described in paragraph (A)
of this subdivision, the amount withheld may not exceed
sixty percent of the obligor's disposable earnings for
that week.
(3) If a part of the withholding is for amounts
which came due prior to such twelve-week period, then:
(A) Where the obligor is supporting another spouse
or dependent child other than the spouse or child for
whom the proposed withholding is being sought, the amount withheld may not exceed fifty-five percent of the
obligor's disposable earnings for that week; and
(B) Where the obligor is not supporting another
spouse or dependent child as described in paragraph (A)
of this subdivision, the amount withheld may not exceed
sixty-five percent of the obligor's disposable earnings
for that week.
(4) In addition to the percentage limitations set
forth in subdivisions (2) and (3) of this subsection, it
shall be a further limitation that when current payments
plus arrearages are being withheld from salaries or wages
in no case shall the total amounts withheld for current
payments plus arrearages exceed the amounts withheld for
current payments by an amount greater than ten percent of
the obligor's disposable income.
(5) The provisions of this subsection shall apply
directly to the withholding of disposable earnings of an
obligor regardless of whether the obligor is paid on a
weekly, biweekly, monthly or other basis.
(6) If an obligor acts so as to purposefully
minimize his or her income and to thereby circumvent the provisions of this section which provide for withholding
from income of amounts payable as support, the amount to
be withheld as support payments may be based upon the
obligor's potential earnings rather than his or her
actual earnings, and such obligor may not rely upon the
percentage limitations set forth in this subsection which
limit the amount to be withheld from disposable earnings.
(f) 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 child advocate office for distribution in accordance
with the provisions of section four, article three of
this chapter. 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. 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 must send the amount
to be withheld from the obligor's income along with such
identifying information as may be required by the child
advocate office to the child advocate office within ten
days of the date 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 child advocate office;
(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 if 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;
(7) That the withholding under the provisions of
this section 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 the source of income may combine withheld
amounts from obligors' income in a single payment to the
child advocate office and separately identify the portion
of the single payment which is attributable to each
obligor;
(9) That the source of income must 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 must notify the child advocate office promptly when the obligor terminates his
or her employment or otherwise ceases receiving income
from the source of income, and must provide the obligor's
last known address and the name and address of the
obligor's new source of income, if known.
(g) The director shall, by administrative rule,
establish procedures for promptly refunding to obligors
amounts which have been improperly withheld under the
provisions of this section.
(h) After implementation in accordance with the
provisions of subsection (k), a source of income must
send the amount to be withheld from the obligor's income
to the child advocate office and must notify the child
advocate office of the date of withholding, within ten
days of the date the same date that the obligor is paid.
(i) In addition to any amounts payable as support
withheld from the obligor's income, 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.
(j) Withholding of amounts payable as support under the provisions of this section is binding on the source
of income until further notice by the child advocate
office.
(k) Every source of income who receives a notice of
withholding under the provisions of this section shall
implement withholding no later than the first pay period
or first date for the payment of income which occurs
after fourteen days following the date the notice to the
source of income was mailed.
(l) A source of income who employs or otherwise pays
income to an obligor who is subject to withholding under
the provisions of this section must notify the child
advocate office promptly when the obligor terminates
employment or otherwise ceases receiving income from the
source of income, and must provide the office with the
obligor's last known address and the name and address of
the obligor's new source of income, if known.
(m) A source of income who has more than a single
obligor who is subject to withholding from income under
the provisions of this article may combine all withheld
amounts into a single payment to the child advocate office, with the portion thereof which is attributable to
each obligor being separately designated.
(n) 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 withhold from
income due an obligor following receipt by such source of
income of proper notice under subsection (f) of this
section: Provided, That a source of income shall not be
required to vary the normal pay and disbursement cycles
in order to comply with the provisions of this section.
(o) A source of income who knowingly and willfully
conceals the fact that the source of income is paying
income to an obligor, with the intent to avoid
withholding from the obligor's income of amounts payable
as support, is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than one
hundred dollars.
(p) If the children's advocate makes a written
request to a source of income to provide information as
to whether the source of income has paid income to a specific obligor, within the preceding sixty-day period,
the source of income shall, within fourteen days
thereafter, respond to such request, itemizing all such
income, if any, paid to the obligor during such sixty-day
period. A source of income shall not be liable, civilly
or criminally, for providing such information in good
faith.
(q) Support collection under the provisions of this
section 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.
(r) Any source of income who discharges from
employment, refuses to employ, or takes disciplinary
action against any obligor subject to income withholding
required by this section because of the existence of such
withholding and the obligations or additional obligations
which it imposes on the source of income, shall be guilty
of a misdemeanor, and, upon conviction thereof, shall be
fined not less than five hundred dollars nor more than
one thousand dollars.
(s) In any case where immediate income withholding
is not required then, at any time following a period of
eighteen months during which the obligor has owed no
arrearages to the obligee or to the state of West
Virginia or any other state, if the obligee and obligor
agree to the termination of withholding and demonstrate
to the children's advocate that there is a reliable
alternative method by which to make the support payments,
they may request the children's advocate to terminate
withholding and such withholding from income may cease
until such time as further withholding is required by
law. The director of the child advocate office shall, by
legislative rule, establish state termination standards
which will ensure, at a minimum, that withholding will
not be terminated where there are indications that it is
unlikely that support will continue without such
withholding. The mere fact that all arrearages have been
paid shall not be a sufficient ground for the termination
of withholding.
NOTE: The purpose of this bill is to require the
source of income, after the proper implementation period,
to send the withheld amount to the Child Advocate's Office on the same day the obligor is paid.
Strike-throughs indicate language that would be
stricken from the present law, and underscoring indicates
new language that would be added.