Senate Bill No. 492
(By Senator Bowman)
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[Introduced March 24, 1997; referred to the Committee on
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 to the
withholding of income from an obligor of amounts payable as
support; and requiring that a source of income withhold and
pay the amount specified for payment as support before
making any other deduction from the obligor's income.
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
child support enforcement division in accordance with the
provisions of section fifteen-a or fifteen-b, article two,
chapter forty-eight of this code. 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 said sections, notwithstanding the fact that such support
order does not in fact provide for such an order of withholding.
(b) When immediate income withholding is not required due to
the findings required by subsection (c), section fifteen-b,
article two, chapter forty-eight of this code, the child support
enforcement division shall mail 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) When notice required by subsection (b) of this section is appropriate, the child support enforcement division shall
determine the time for a meeting between the obligor and the
child support enforcement division 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 child support enforcement division 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 child support
enforcement division 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 arrearage;
(3) The definition of "income" as defined in section three,
article one one-a 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 child support enforcement division
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 child support enforcement
division occurs;
(11) That if the meeting with the child support enforcement division fails to resolve the issues being contested, a hearing
before the family law master shall 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
arrearage due.
(d) Withholding shall 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. When withholding is ordered or otherwise required, the
source of income shall 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, and the amount necessary to comply with the order shall be
withheld before any other deduction is made, including deductions
made in order to reimburse the source of income for payments made
in advance to the obligor, regardless of the reason therefor.
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 may 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 arrearage is
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) When 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) When 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 arrearage 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; and
(6) When 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 support enforcement
division for distribution. The amount specified in the notice
shall be withheld and paid from the obligor's income before any
other deduction is made. 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 shall send the amount to be
withheld from the obligor's income along with such identifying
information as may be required by the child support enforcement
division to the child support enforcement division 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 support enforcement division or
until the source of income notifies the child support enforcement
division of a termination of the obligor's employment in
accordance with the provisions of subsection (l) of this section;
(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;
(7) That the withholding under the provisions of this
section shall have priority over any other legal process under
the laws of this state or any financial obligation arising under
any agreement between the source of income and the obligor,
including the withholding of income from the obligor in order to
reimburse the source of income for payments advanced to the
obligor for any reason whatsoever, 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 payment to the child support enforcement division when
the employer properly identifies each payment with the
information listed in this section. 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 section 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 child
support enforcement division 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.
(g) The commission 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) of this section, a source of income shall send
the amount to be withheld from the obligor's income to the child
support enforcement division and shall notify the child support
enforcement division of the date of withholding, 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 support enforcement division or
until the source of income notifies the child support enforcement
division of a termination of the obligor's employment in
accordance with the provisions of subsection (l) of this section.
(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 shall notify the child support enforcement
division promptly when the obligor terminates employment or
otherwise ceases receiving income from the source of income, and
shall provide the child support enforcement division with the
obligor's last known address and the name and address of the
obligor's new source of income, if known.
(m) When an employer has more than one employee who is an
obligor who is subject to wage withholding from income for
amounts payable as support, the employer may combine all withheld payments to the child support enforcement division when the
employer properly identifies each payment with the information
listed in this section. 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 in accordance with
this section and is therefore not received by the obligee.
(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) Any 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) When the child support enforcement division 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.
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(NOTE: The purpose of this bill is to require that a source of income withhold and pay amounts payable as support before
making any other deduction from an obligor's income.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)