Senate Bill No. 665
(By Senators Wooton, Dawson, Dittmar, Hunter, Kessler, Minard,
Redd, Ross, Snyder, Deem and McKenzie)
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[Originating in the Committee on the Judiciary;
reported March 3, 2000.]
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A BILL to amend and reenact section eleven, article one-b, chapter
forty-eight-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to domestic relations
proceedings; providing for the service of petitions for
expedited modifications of child support orders; and
establishing income withholding from obligee for overpayment
of child support.
Be it enacted by the Legislature of West Virginia:
That section eleven, article one-b, 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:
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1B. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48A-1B-11. Modification.
(a) The provisions of a child support order may be modified if
there is a substantial change of circumstances. For purposes of
this section, if application of the guideline would result in a new
order that is more than fifteen percent different, then the
circumstances are considered to be a substantial change.
(b) An expedited process for modification of a child support
order may be utilized if either parent experiences a substantial
change of circumstances resulting in a decrease in income due to
loss of employment or other involuntary cause or an increase in
income due to promotion, change in employment, reemployment or
other such change in employment status. 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. The secretary-clerk shall cause serve a notice of the filing, a copy of the standardized form, and
the support calculations to be served 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
and upon mail a copy, by first-class mail, to the local office of
the child support enforcement division for the county in which the
circuit court is located in the same manner as original process
under rule 4(d) of the rules of civil procedure. 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
family law master shall prepare a recommended default order for
entry by the circuit judge. Either party may move to set aside a
default entered by the circuit clerk or a judgment by default
entered by the clerk or the court, pursuant to the provisions of
rule 55 or rule 60(b) of the rules of civil procedure. 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.
(c) The supreme court of appeals shall develop the
standardized form required by subsection (b) of this section.
(d) In any proceeding where a petition to modify child support
is granted which results in a reduction of child support owed so
that the obligor has overpaid child support, the court shall grant
a decretal judgment to the obligor for the amount of the
overpayment. The court shall inquire as to whether a support
arrearage was owed by the obligor for support due prior to the
filing of the petition for modification. If an arrearage exists,
the court shall order an offset of the overpayment against the
child support arrearages. If no prior arrearage exists or if the
arrearage is not sufficient to offset the overpayment, then the
court may direct the child support enforcement division to collect
the overpayment through income withholding, if the person has, in
the court's opinion, sufficient income other than the child support received. The income withholding shall be in all respects as
provided for in section three, article five of this chapter, except
that in no circumstances may the amount withheld exceed thirty-five
percent of the disposable earnings for the period, regardless of
the length of time that the overpayment has been owed.
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(NOTE: The purpose of this bill is to clarify the method of
service of petitions for expedited modification of child support
and to provide for income withholding from an obligee when child
support has been overpaid.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)