COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 504
(By Senators Bowman and Unger)
____________
[Originating in the Committee on Health and Human Resources;
reported February 21, 2008.]
____________
A BILL
to repeal §48-18-201, §48-18-202, §48-18-203, §48-18-204,
§48-18-205 and §48-18-206 of the Code of West Virginia, 1931,
as amended; to amend and reenact §38-3-18 of said code; to
amend and reenact §48-1-205, §48-1-225, §48-1-230 and §48-1-
302 of said code; to amend and reenact §48-11-103 and §48-11-
105 of said code; to amend said code by adding thereto a new
section, designated §48-13-804; to amend and reenact §48-14-
102, §48-14-106, §48-14-108, §48-14-203, §48-14-302, §48-14-
404, §48-14-407, §48-14-408, §48-14-414, §48-14-502, §48-14-
503, §48-14-701 and §48-14-801 of said code; to amend and
reenact §48-15-201 of said code; to amend and reenact §48-17-
101, §48-17-102, §48-17-103, §48-17-105, §48-17-106, §48-17-
107 and §48-17-109 of said code; to amend and reenact §48-18-
102, §48-18-118, §48-18-120 and §48-18-126 of said code; and
to amend said code by adding thereto four new sections,
designated §48-18-118a, §48-18-126a, §48-18-126b and §48-18-
126c, all relating generally to child support enforcement; clarifying findings of fact in court orders when income is
attributed for purposes of setting child support; clarifying
that prescription drugs are included in medical support;
providing that inmate concession accounts are income for
withholding purposes; reducing the interest rate on unpaid
child support from ten percent per annum to five percent per
annum; providing for support to continue past age eighteen by
operation of law; establishing a procedure for refunding of
properly withheld amounts when a support order is modified;
requiring family court judges enter default orders setting
child support; allowing the Bureau for Child Support
Enforcement to bring an action for medical support; providing
refund procedures when a party to a support order is deceased;
clarifying that an affidavit of accrued support may be filed
in the court where the original order was entered; clarifying
that certain enforcement remedies for child support arrearages
will toll the running of the statute of limitations; allowing
the collection through income withholding of court-ordered
fees; clarifying that withholding limitations do not apply to
bonuses; providing for remedies against employers who
improperly withhold child support; creating consistency among
civil contempt penalties; authorizing the Bureau for Child
Support Enforcement to collect an additional one hundred
dollars when arrearage triggers are met; eliminating the
requirement that the Bureau for Child Support Enforcement
attorney meet with the parties prior to the posting of a bond; authorizing the Tax Commissioner to deny issuance or
reissuance of a business license; reconstituting the Child
Support Enforcement Commission to allow for review of the
child support formula by the commission; clarifying the duties
of the Bureau for Child Support Enforcement Commissioner with
respect to the child support formula; allowing the Tax
Commissioner to supply names and addresses to the Bureau for
Child Support Enforcement for enforcement of support
obligations; allowing collection of overpayments to support
obligees from state tax refunds; clarifying the requirement
that parties receive annual statements; requiring the Bureau
for Child Support Enforcement to review all public assistance
cases every three years; clarifying that attorneys for the
Bureau for Child Support Enforcement may enter an
administrative order to modify a child support obligation;
providing for consistency of service of process; and making
technical corrections.
Be it enacted by the Legislature of West Virginia:
That
§48-18-201, §48-18-202, §48-18-203, §48-18-204, §48-18-
205 and §48-18-206 of the Code of West Virginia, 1931, as amended,
be repealed; that §38-3-18 of said code be amended and reenacted;
that §48-1-205, §48-1-225, §48-1-230 and §48-1-302 of said code be
amended and reenacted; that §48-11-103 and §48-11-105 of said code
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §48-13-804; that §48-14-102, §48-
14-106, §48-14-108, §48-14-203, §48-14-302, §48-14-404, §48-14-407, §48-14-408, §48-14-414, §48-14-502, §48-14-503, §48-14-701 and §48-
14-801 of said code be amended and reenacted; that §48-15-201 of
said code be amended and reenacted; that §48-17-101, §48-17-102,
§48-17-103, §48-17-105, §48-17-106, §48-17-107 and §48-17-109 of
said code be amended and reenacted; that §48-18-102, §48-18-118,
§48-18-120 and §48-18-126 of said code be amended and reenacted;
and that said code be amended by adding thereto four new sections,
designated §48-18-118a, §48-18-126a, §48-18-126b and §48-18-126c,
all to read as follows:
CHAPTER 38. LIENS.
ARTICLE 3. JUDGMENT LIENS.
§38-3-18. Limitations on enforcement of judgments.
(a) On a judgment, execution
or an income withholding as
provided in article fourteen, chapter forty-eight of this code may
be issued within ten years after the date thereof. Where execution
or an income withholding issues within ten years as aforesaid,
other executions
or income withholdings may be issued on such
judgment within ten years from the return day of the last execution
or date of last income withholding issued thereon, on which there
is no return by an officer,
or which has been returned unsatisfied
or on which no payment has been withheld.
(b) An execution may be issued upon a judgment for child or
spousal support, as those terms are defined in chapter forty-eight
of this code, within ten years after the emancipation of the child:
Provided, That in cases where the support order is for more than one child, the limitations set for in subsection (a) of this
section commence when the youngest child that is the subject of the
order on which the execution is based reaches the age of eighteen
or is otherwise legally emancipated.
(c)An action, suit or scire facias may be brought upon a
judgment where there has been a change of parties by death or
otherwise at any time within ten years next after the date of the
judgment; or within ten years from the return day of the last
execution
or income withholding issued thereon on which there is no
return by an officer or which has been returned unsatisfied. But
if such action, suit or scire facias be against the personal
representative of a decedent, it shall be brought within five years
from the qualification of such representative.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-205. Attributed income defined.
(a) "Attributed income" means income not actually earned by a
parent but which may be attributed to the parent because he or she
is unemployed, is not working full time, or is working below
full-earning capacity or has nonperforming or underperforming
assets. Income may be attributed to a parent if the court
evaluates the parent's earning capacity in the local economy
(giving consideration to relevant evidence that pertains to the
parent's work history, qualifications, education and physical or
mental condition) and determines that the parent is unemployed, is not working full time, or is working below full-earning capacity.
Income may also be attributed to a parent if the court finds that
the obligor has nonperforming or underperforming assets.
(b) If an obligor: (1) Voluntarily leaves employment or
voluntarily alters his or her pattern of employment so as to be
unemployed, underemployed or employed below full-earning capacity;
(2) is able to work and is available for full-time work for which
he or she is fitted by prior training or experience; and (3) is not
seeking employment in the manner that a reasonably prudent person
in his or her circumstances would do, then an alternative method
for the court to determine gross income is to attribute to the
person an earning capacity based on his or her previous income. If
the obligor's work history, qualifications, education or physical
or mental condition cannot be determined, or if there is an
inadequate record of the obligor's previous income, the court may,
as a minimum, base attributed income on full-time employment (at
forty hours per week) at the federal minimum wage in effect at the
time the support obligation is established.
In order for the court
to consider attribution of income, it is not necessary for the
court to find that the obligor's termination or alteration of
employment was for the purpose of evading a support obligation.
(c) Income shall not be attributed to an obligor who is
unemployed or underemployed or is otherwise working below
full-earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to
whom
both of the parties owe a
joint legal responsibility for support and such children are of preschool age or are handicapped
or otherwise in a situation requiring particular care by the
parent;
(2) The parent is pursing a plan of economic self-improvement
which will result, within a reasonable time, in an economic benefit
to the children to whom the support obligation is owed, including,
but not limited to, self-employment or education:
Provided, That
if the parent is involved in an educational program, the court
shall ascertain that the person is making substantial progress
toward completion of the program;
(3) The parent is, for valid medical reasons, earning an
income in an amount less than previously earned; or
(4) The court makes a written finding that other circumstances
exist which would make the attribution of income inequitable:
Provided, That in such case, the court may decrease the amount of
attributed income to an extent required to remove such inequity.
(d) The court may attribute income to a parent's nonperforming
or underperforming assets, other than the parent's primary
residence. Assets may be considered to be nonperforming or
underperforming to the extent that they do not produce income at a
rate equivalent to the current six-month certificate of deposit
rate or such other rate that the court determines is reasonable.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-225. Extraordinary medical expenses defined.
"Extraordinary medical expenses" means uninsured medical
expenses in excess of two hundred fifty dollars per year per child
which are recurring and can reasonably be predicted by the court at
the time of establishment or modification of a child support order.
Such expenses shall include, but not be limited to, insurance
copayments and deductibles, reasonable costs for necessary
orthodontia, dental treatment, asthma treatments, physical therapy,
prescription pharmaceuticals, vision therapy and eye care and any
uninsured chronic health problem.
§48-1-230. Income defined.
"Income" includes, but is not limited to, the following:
(1) Commissions, earnings, salaries, wages, and other income
due or to be due in the future to an individual from his or her
employer and successor employers;
(2) Any payment due or to be due in the future to an
individual from a profit-sharing plan, a pension plan, an insurance
contract, an annuity, social security, unemployment compensation,
supplemental employment benefits, workers' compensation benefits,
state lottery winnings and prizes, and overtime pay;
(3) Any amount of money which is owing to an individual as a
debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency, this
state or any political subdivision of this state, any other state
or a political subdivision of another state or any other legal
entity which is indebted to the obligor;
(4) Any amount of money which is held by the Regional Jail Authority for an inmate in an inmate's concession account.
§48-1-302. Calculation of interest.
(a) Notwithstanding any other provisions of the code, if an
obligation to pay interest arises under this chapter, the rate of
interest is
ten five percent per annum and proportionate thereto
for a greater or lesser sum, or for a longer or shorter time.
Interest awarded shall only be simple interest and nothing in this
section may be construed to permit awarding of compound interest.
Interest accrues only upon the outstanding principal of such
obligation.
(b) Notwithstanding any other provision of law, no court may
award or approve prejudgment interest in a domestic relations
action against a party unless the court finds, in writing, that the
party engaged in conduct that would violate subsection (b), Rule 11
of the West Virginia Rules of Civil Procedure. If prejudgment
interest is awarded, the court shall calculate prejudgment interest
from the date the offending representation was presented to the
court pursuant to subsection (a) of this section.
(c) Upon written agreement by both parties, an obligor may
petition the court to enter an order conditionally suspending the
collection of all or part of the interest that has accrued on
past-due child support prior to the date of the agreement:
Provided, That said agreement shall also establish a reasonable
payment plan which is calculated to fully discharge all arrearages
within twenty-four months. Upon successful completion of the
payment plan, the court shall enter an order which permanently relieves the obligor of the obligation to pay the accrued interest.
If the obligor fails to comply with the terms of the written
agreement, then the court shall enter an order which reinstates the
accrued interest.
(d) Amendments to this section enacted by the Legislature
during the two thousand six regular session shall become effective
the first day of January, two thousand seven.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-103. Child support beyond age eighteen.
(a)
Upon a specific finding of good cause shown and upon
findings of fact and conclusions of law in support thereof, a An
order for child support
may shall provide that payments of such
support continue beyond the date when the child reaches the age of
eighteen, so long as the child is unmarried and residing with a
parent, guardian or custodian and is enrolled as a full-time
student in a secondary educational or vocational program and making
substantial progress towards a diploma
: Provided, That such
payments may not extend past the date that the child reaches the
age of twenty.
(b) Nothing herein shall be construed to abrogate or modify
existing case law regarding the eligibility of handicapped or
disabled children to receive child support beyond the age of
eighteen.
(c) The reenactment of this section during the regular session
of the Legislature in the year one thousand nine hundred ninety-four shall not, by operation of law, have any effect upon or
vacate any order or portion thereof entered under the prior
enactment of this section which awarded educational and related
expenses for an adult child accepted or enrolled and making
satisfactory progress in an educational program at a certified or
accredited college. Any such order or portion thereof shall
continue in full force and effect until the court, upon motion of
a party, modifies or vacates the order upon a finding that:
(1) The facts and circumstances which supported the entry of
the original order have changed, in which case the order may be
modified;
(2) The facts and circumstances which supported the entry of
the original order no longer exist because the child has not been
accepted or is not enrolled in and making satisfactory progress in
an educational program at a certified or accredited college, or the
parent ordered to pay such educational and related expenses is no
longer able to make such payments, in which case the order shall be
vacated;
(3) The child, at the time the order was entered, was under
the age of sixteen years, in which case the order shall be vacated;
(4) The amount ordered to be paid was determined by an
application of child support guidelines in accordance with the
provisions of article 13-101, et seq., of this chapter, or
legislative rules promulgated thereunder, in which case the order
may be modified or vacated; or (5) The order was entered after the
fourteenth day of March, one thousand nine hundred ninety-four, in which case the order shall be vacated.
§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.
(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 article
13-101, et seq., of this chapter unless the court disregards the
guidelines or adjusts the award as provided
for in section 13-702.
(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 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.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48-13-804. Default orders.
(a) In any proceeding in which the amount of support is to be
established, if the party has been served with proper pleadings and
has been notified of the date, time and place of a hearing before
a family court judge and does not enter an appearance or file a
response, the family court judge shall prepare a default order for
entry, which order fixes support in an amount in accordance with
the child support guidelines contained in article thirteen of this
chapter.
(1) When applying the child support guidelines, the court may
accept financial information from the other party as accurate, pursuant to rule 13(b) of the rules of practice and procedure for
family court; or
(2) If financial information is not available, the court may
attribute income to the party based upon either:
(i) The party's work history;
(ii) Minimum wage, if appropriate; or
(iii) At a minimum, enter a child support order in a nominal
amount unless, in the court's discretion, a zero support order
should be entered.
(b) All orders shall provide for automatic withholding from
income of the obligor pursuant to part four of article fourteen of
this chapter.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-102. Who may bring action for child support order.
An action may be brought under the provisions of section
14-101 by:
(1)A custodial parent of a child, when the divorce order or
other order which granted custody did not make provision for the
support of the child by the obligor;
(2)A primary caretaker of a child;
(3)A guardian of the property of a child or the committee
for a child;
or
(4)The Bureau for Child Support Enforcement, on behalf of
the state, when the Department of Health and Human Resources is
providing assistance on behalf of the child
or the person to whom a duty of support is owed, in the form of temporary assistance to
needy families
or medical assistance, and any right to support has
been assigned to the department or in any other case wherein a
party has applied for child support enforcement services from the
Bureau for Child Support enforcement;
or
§48-14-106.Modification of support order.
(a)At any time after the entry of an order for support, the
court may, upon the verified petition of an obligee or the obligor,
revise or alter such order and make a new order as the altered
circumstances or needs of a child, an obligee or the obligor may
render necessary to meet the ends of justice.
(b) The Supreme Court of Appeals shall make available to the
family 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 paid 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 such forms
available to persons desiring to petition the court pro se for a
modification of the support award.
(c) 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 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.
§48-14-108. Deceased parties in support cases.
In the event of the death of any party to a domestic relations
support action, support payments or a refund of support payments
due to the party by the obligee, obligor, or the Bureau for Child
Support Enforcement, not in excess of one thousand dollars, may,
upon proper demand, be paid, in the absence of actual notice of the
pendency of probate proceedings, without requiring letters
testamentary or of administration in the following order of
preference to decedent's: (1) Surviving spouse; (2) children
eighteen years of age and over in equal shares; (3) father and
mother, or survivor; and (4) sisters and brothers. Payments under
this section shall release and discharge the obligee, obligor or
the Bureau for Child Support Enforcement to the amount of such
payment.
§
48-14-203. Affidavit of accrued support.
(a) The affidavit of accrued support may be filed with the
clerk of the circuit court in the county in which the obligee or
the obligor resides,
in the county where the order originated, or
where the obligor's source of income is located.
The affidavit may be filed when a payment required by such
order has been delinquent, in whole or in part, for a period of fourteen days.
(c) The affidavit shall:
(1) Identify the obligee and obligor by name and address, and
shall list the
last four digits of the obligor's social security
number or numbers, if known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) State the total amount of accrued support which has not
been paid by the obligor;
and
(4) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent
payment; and
(5) (4) State the name and address of the obligor's source of
income, if known.
§48-14-302. Affidavit of accrued support.
The affidavit and abstract
as provided in section four,
article three, chapter thrity-eight of this code shall be filed
with the clerk of the county commission in which the real property
is located
or in the county where the order originated. The
affidavit shall:
(1) Identify the obligee and obligor by name and address, and
shall list the
last four digits of the obligor's social security
number or numbers, if known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) Allege that the support obligor is at least thirty days in arrears in the payment of child support;
(4) State the total amount of accrued support which has not
been paid by the obligor.
and
(5) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent
payment.
§48-14-404. Enforcement of withholding by Bureau for Child
Support Enforcement.
The withholding from an obligor's income of amounts payable as
spousal or child support
or fees awarded by a court of competent
jurisdiction to the state in connection with the establishment of
paternity and support or the enforcement of a support order shall
be enforced by the Bureau for Child Support Enforcement in
accordance with the provisions of this part 4.
If an overpayment
of spousal or child support occurs and an arrearage exists, the
Bureau for Child Support shall first offset the overpayment of
spousal or child support against the arrearage. If no arrearage
exists with which to offset the overpayment or the arrearage is not
sufficient to offset the overpayment and the obligee does not enter
into a repayment agreement with the Bureau for Child Support
Enforcement, the Bureau for Child Support Enforcement may issue an
income withholding to the obligee's employer to recoup the amount
of the overpayment. The income withholding shall be in the same
manner as provided in article fourteen of this chapter: Provided,
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.
§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;
(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 wit 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) When the court reduces an order of support,
The commission
shall, by administrative rule, establish procedures for promptly
refunding to obligors amounts which have been improperly withheld
under the provisions of this part. the Bureau for Child Support
Enforcement is not liable for refunding amounts which have been
withheld pursuant to a court order which was valid 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.
§48-14-408. Determination of amounts to be withheld.
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) Prior to the first day of January, two thousand one, 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) Prior to the first day of January, two thousand one, 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) Beginning the first day of January, two thousand one, 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
forty 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 fifty percent of the obligor's
disposable earnings for that week.
(5) Beginning the first day of January, two thousand one, when
a part 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
forty-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 fifty-five percent of the
obligor's disposable earnings for that week.
(6) In addition to the percentage limitations set forth in
subdivisions (2) and (3) of this subsection, it shall be a further
limitation that when the current month's obligation plus arrearages
are being withheld from salaries or wages in no case shall the
total amounts withheld for the current month's obligation plus
arrearage exceed the amounts withheld for the current obligation by
an amount greater than twenty-five percent of the current monthly
support obligation.
(7) 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.
(8) The Bureau for Child Support Enforcement has the authority
to prorate the current support obligation in accordance with the
pay cycle of the source of income. This prorated current support
obligation shall be known as the "adjusted support obligation." The
current support obligation or the adjusted support obligation is
the amount, if unpaid, on which interest will be charged.
(9) When an obligor acts so as to purposefully minimize his or
her income and to thereby circumvent the provisions of this part 4
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.
(10) For the purpose of securing overdue support, this section
does not apply to earnings denominated as bonuses. When an
employer pays a bonus to an employee and that employee is subject
to a support order, the Bureau for Child Support Enforcement may
withhold one hundred percent of the bonus to satisfy a support
arrearage.
§48-14-414. Sending amounts withheld to
the Bureau for Child
Support Enforcement; notice.
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 section
14-407:
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.
The Bureau for Child Support
Enforcement may assess a civil penalty of no more than five hundred dollars per occurrence for the failure of any person, corporation,
financial institution, labor organization or state agency to comply
with requirements of this section. The Bureau for Child Support
Enforcement may file an action with the circuit court to enforce
the assessed penalty. The court has the authority to award the
bureau a judgment for the amount of the civil penalty or such other
reasonable amount as the court shall deem appropriate.
§48-14-502. Willful failure or refusal to comply with order to
pay support.
If the court finds that the obligor willfully failed or
refused to comply with an order requiring the payment of support,
the court shall find the obligor in contempt and may do one or more
of the following:
(1) Require additional terms and conditions consistent with
the court's support order.
(2) After notice to both parties and a hearing, if requested
by a party, on any proposed modification of the order, modify the
order in the same manner and under the same requirements as an
order requiring the payment of support may be modified under the
provisions of part 5-701, et seq. A modification sought by an
obligor, if otherwise justified, shall not be denied solely because
the obligor is found to be in contempt.
(3) Order that all accrued support and interest thereon be
paid under such terms and conditions as the court, in its
discretion, may deem proper.
(4) Order the contemnor to pay support in accordance with a
plan approved by the Bureau for Child Support Enforcement or to
participate in such work activities as the court deems appropriate.
(5) If appropriate under the provisions of section 1-304
.
(A) Commit the contemnor to the
county or regional jail; or
(B) Commit the contemnor to the
county or regional jail with
the privilege of leaving the jail, during such hours as the court
determines and under such supervision as the court considers
necessary, for the purpose of allowing the contemnor to go to and
return from his or her place of employment.
§48-14-503. Limitation on length of commitment.
(a) A commitment under subdivision (5) of section 14-502 shall
not exceed forty-five days for the first adjudication of contempt
or ninety days for any subsequent adjudication of contempt confine
the contemnor to jail for a period not to exceed six months or
until such time as the contemnor has purged himself or herself,
whichever shall occur first.
(b) An obligor committed under subdivision (5) of
section
14-502 shall be released
by court order if the court has reasonable
cause to believe that the obligor will comply with the court's
order.
§48-14-701. Posting of bonds or giving security to guarantee
payment of overdue support.
(a) An obligor with a pattern of overdue support may be
required by order of the court to post bond, give security or some other guarantee to secure payment of overdue support. The
guarantee may include an order requiring that stocks, bonds or
other assets of the obligor be held in escrow by the court until
the obligor pays the support.
(b) No less than fifteen days before such an order may be
entered, the Bureau for Child Support enforcement attorney shall
cause the mailing of a notice by first class mail to the obligor
informing the obligor of the impending action, his or her right to
contest it, and setting forth a date, time and place for a meeting
with the Bureau for Child Support enforcement attorney and the
date, time and place of a hearing before the family court if the
impending action is contested.
§48-14-801. When monthly payments may be increased to satisfy
overdue support.
(a) For the purpose of securing overdue support, the Bureau
for Child Support Enforcement has the authority to increase the
monthly support payments of an obligor by as much as one hundred
dollars per month to satisfy the arrearage when:
(1) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for six months if the order requires support to be paid in monthly
installments; or
(2) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for twenty-seven weeks if the order requires support to be paid in weekly or biweekly installments.
(b) For the purpose of securing overdue support, the Bureau
for Child Support Enforcement has the authority to increase the
monthly support payments of an obligor by as much as two hundred
dollars per month to satisfy the arrearage when:
(1) An obligor's gross income equals or exceeds sixty-five
thousand dollars; and,
(2) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for twelve months if the order requires support to be paid in
monthly installments; or
(3) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for fifty-four weeks if the order requires support to be paid in
weekly or biweekly installments.
(b) (c) An increase in monthly support under this section will
be in addition to any amounts withheld from income pursuant to of
this article.
(c) (d) This increase in monthly support may be enforced
through the withholding process.
ARTICLE 15. Enforcement of support order through action against
license.
PART 2. ACTION AGAINST LICENSE.
§
48-15-201. Licenses subject to action.
The following licenses are subject to an action against a license as provided for in this article:
(1) A business registration certificate issued under chapter
eleven, article twelve of this code, authorizing a person to
transact business in the State of West Virginia.
(1) (2) A permit or license issued under chapter seventeen-b
of this code, authorizing a person to drive a motor vehicle;
(2) (3) A commercial driver's license, issued under chapter
seventeen-e of this code, authorizing a person to drive a class of
commercial vehicle;
(3) (4) A permit, license or stamp issued under article two or
two-b, chapter twenty of this code, regulating a person's
activities for wildlife management purposes, authorizing a person
to serve as an outfitter or guide, or authorizing a person to hunt
or fish;
(4) (5) A license or registration issued under chapter thirty
of this code, authorizing a person to practice or engage in a
profession or occupation;
(5) (6) A license issued under article twelve, chapter
forty-seven of this code, authorizing a person to transact business
as a real estate broker or real estate salesperson;
(6) (7) A license or certification issued under article
fourteen, chapter thirty-seven of this code, authorizing a person
to transact business as a real estate appraiser;
(7) (8) A license issued under article twelve, chapter
thirty-three of this code, authorizing a person to transact
insurance business as an agent, broker or solicitor;
(8) (9) A registration made under article two, chapter
thirty-two of this code, authorizing a person to transact
securities business as a broker-dealer, agent or investment
advisor;
(9) (10) A license issued under article twenty-two, chapter
twenty-nine of this code, authorizing a person to transact business
as a lottery sales agent;
(10) (11) A license issued under articles thirty-two or
thirty-our, chapter sixteen of this code, authorizing persons to
pursue a trade or vocation in asbestos abatement or radon
mitigation;
(11) (12) A license issued under article eleven, chapter
twenty-one of this code, authorizing a person to act as a
contractor;
(12) (13) A license issued under article two-c, chapter
nineteen of this code, authorizing a person to act as an
auctioneer; and
(13) (14) A license, permit or certificate issued under
chapter nineteen of this code, authorizing a person to sell, market
or distribute agricultural products or livestock.
ARTICLE 17. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION.
§48-17-101. Creation of Support Enforcement Commission; number of
members.
The West Virginia Support Enforcement Commission, consisting
of
eight nine members, is hereby created in the Department of Health and Human Resources and may use the administrative support
and services of that department.
The Commission is not subject to
control, supervision or direction by the Department of Health and
Human Resources, but is an independent, self-sustaining commission
that shall have the powers and duties specified in this chapter.
The Commission is a part-time commission whose members perform
such duties as specified in this chapter. The ministerial duties
of the Commission shall be administered and carried out by the
Commissioner of the Bureau for Child Support Enforcement, with the
assistance of such staff of the Department of Health and Human
Resources as the Secretary may assign.
Each member of the Commission shall devote the time necessary
to carry out the duties and obligations of the office and the seven
members appointed by the Governor may pursue and engage in another
business, occupation or gainful employment that is not in conflict
with the duties of the Commission.
While the Commission is self-sustaining and independent, it,
its members, its employees and the Commissioner are subject to
article nine-a of chapter six, chapter six-b, chapter twenty-nine-a
and chapter twenty-nine-b of this code.
§48-17-102. Appointment of members of support enforcement
Commission; qualifications and eligibility.
(a) Of the
eight nine members of the commission, seven members
are to be appointed by the governor:
Provided, That no more than
five members of the commission may belong to the same political party.
(1) One member is to be a lawyer licensed by, and in good
standing with, the West Virginia state bar, with at least five
years of professional experience in domestic relations law and the
establishment and enforcement of support obligations;
(2) One member is to be a person experienced as a public
administrator in the supervision and regulation of a governmental
agency;
(3) One member is to be an employer experienced in withholding
support payments from the earnings of obligors;
(4) One member is to be a practicing family court judge, as an
ex-officio member, who will serve in an advisory capacity, without
compensation or voting rights; and
(5) Three members are to be representatives of the public at
large, with at least one being an obligor and one being an obligee.
(b) One member is to be the commissioner of the bureau for
children and families, department of health and human resources, or
his or her designee.
(c) The Commissioner of the Bureau for Child Support
Enforcement, or his or her designee, is an ex-officio non-voting
member of the commission.
(c) (d) Each member of the commission is to be a citizen of
the United States, a resident of the state of West Virginia and at
least twenty-one years of age.
§48-17-103. Terms of commission members; conditions of membership.
(a) Beginning June 1, 2008, and every four years thereafter, the Governor shall convene the Commission to review the child
support guidelines, in accordance with the Code of Federal
Regulations, Part 45, Section 302.56(C)(3)(e).
(b) The Governor shall make appointments by June 1, 2008 and
on the first day of June every four years thereafter.
(c) The Commissioner shall report is findings and
recommendations to the Legislative Oversight Commission on Health
and Human Resources Accountability by the first day of July, 2009,
and by the first day of July every four years thereafter.
(d) The Commissioners terms shall expire on the first day of
July in the year in which they submit the required report
Legislature as set forth in subsection (c) of this section.
§48-17-105. Commission chairman.
The Commissioner of the Bureau for Child Support Enforcement
shall serve as the chair of the commission.
§48-17-106. Compensation of members; reimbursement for expenses.
(a) Each
voting member of the commission shall receive one
hundred dollars for each day or portion thereof spent in the
discharge of his or her official duties.
(b) Each member of the commission shall be reimbursed for all
actual and necessary expenses and disbursements involved in the
execution of official duties.
§48-17-107. Meeting requirements.
(a) The commission shall meet
within the state at least twice
per calendar year and at such other times as the chairman may decide. The commission shall also meet upon a call of four or more
members upon seventy-two hours written notice to each member. at
least twice during the one year term for the sole purpose of
reviewing the child support guidelines set forth in article
thirteen of this chapter. The commission may determine if it needs
to convene more frequently to effectively study the guidelines, but
shall not meet more than eight times during the one year term.
(b) Four members of the commission are a quorum for the
transaction of any business and for the performance of any duty.
(c) A majority vote of the members present is required for any
final determination by the commission.
(d) The commission may elect to meet in executive session
after an affirmative vote of a majority of its members present
according to section four, article nine-a, chapter six of this
code;
(e) The commission shall keep a complete and accurate record
of all its meetings according to section five, article nine-a,
chapter six of this code.
§48-17-109. General duties of support enforcement commission.
(a) Federal law requires that each state periodically review
the formula used to set child support obligations to determine
appropriate awards for the support of children. States are
required to consider current research and stat on the costs of and
expenditures necessary for rearing children. A process for review
of th guidelines should be established to ensure the integrity of
the formula and reviews undertaken to comply with federal law.
(b) The commission shall review and analyze:
(1) The current child support guidelines;
(2) Relevant research and data regarding the cots of child
rearing;
(3) Research and data on the application of, and deviations
from, the child support guidelines;
(4) Current law, administrative rules, and practices regarding
child support; and
(5) Any other data the commission deems relevant to the review
of the current child support guidelines.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-102. Appointment of commissioner; duties; compensation.
(a) There is hereby created the position of commissioner.
whose duties include the ministerial management and administration
of the office of the support enforcement commission. The
commissioner shall:
(1) Be appointed by the secretary;
(2) Serve at the will and pleasure of the secretary;
(3) Serve on a full-time basis and shall not engage in any
other profession or occupation, including the holding of a
political office in the state either by election or appointment,
while serving as commissioner;
(4) Be a lawyer licensed by, and in good standing with, the
West Virginia State Bar; and
(5) Have responsible administrative experience, possess management skills, and have knowledge of the law as it relates to
domestic relations and the establishment and enforcement of support
obligations.
Before entering upon the discharge of the duties as
commissioner, the commissioner shall take and subscribe to the oath
of office prescribed in section five, Article IV of the
Constitution of West Virginia.
(b) The duties of the commissioner shall include the
following:
(1) To direct and administer the daily operations of the
commission;
(2) (1) To administer the Child Support Enforcement Fund
created pursuant to section 18-107 of this article;
(2) To chair the commission set forth in article seventeen of
this chapter for the purpose of conducting the federally required
review of the child support formula every four years and make a
report to the Legislative Oversight Commission on Health and Human
Resources Accountability of the commission's findings.
(3) To keep the records and papers of the commission,
including a record of each proceeding;
and
(4) To prepare, issue and submit reports of the commission.
and
(5) To perform any other duty that the commission directs.
(c) All payments to the commissioner as compensation shall be
made from the Child Support Enforcement Fund. The commissioner is
entitled to:
(1) A reasonable and competitive compensation package to be
established by the secretary; and
(2) Reimbursement for expenses under the standard state travel
regulations.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary
for the Bureau for Child Support Enforcement to obtain payment of
past due support from state income tax refunds from overpayment
made to the Tax Commissioner pursuant to the provisions of article
twenty-one, chapter eleven, of this code.
(b) The
Bureau for Child Support Enforcement Commissioner
shall establish procedures necessary
for the Bureau for Child
Support Enforcement to enforce a support order through a notice to
the Tax Commissioner which will cause any refund of state income
tax which would otherwise by payable to an obligor to be reduced by
the amount of overdue support owed by such obligor.
(1)
Such legislative rule The procedures shall, at a minimum,
prescribe:
(A) The time or times at which the Bureau for Child Support
Enforcement shall serve on the obligor or submit to the Tax
Commissioner notices of past due support;
(B) The manner in which such notices shall be served on the
obligor or submitted to the Tax Commissioner;
(C) The necessary information which shall be contained in or
accompany the notices;
(D) The amount of the fee to be paid to the Tax commissioner for the full cost of applying the procedure whereby past due
support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support
Enforcement may deduct a twenty-five dollar fee from the obligor's
state income tax refund. This procedure may not require a
deduction from the state income tax refund of an applicant who is
a recipient of assistance from the Bureau for Children and Families
in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be
pursued unless the Bureau for Child Support Enforcement has
examined the obligor's pattern of payment of support and the
obligee's likelihood of successfully pursuing other enforcement
actions, and has determined that the amount of past due support
which will be owed, at the time the withholding is to be made, will
be one hundred dollars or more. In determining whether the amount
of past due support will be one hundred dollars or more, the Bureau
for Child Support Enforcement shall consider the amount of all
unpaid past due support, including that which may have accrued
prior to the time that the Bureau for Child Support Enforcement
first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support
Enforcement shall enter into agreements with the Secretary of the
Treasury and the Tax Commissioner, and other appropriate
governmental agencies, to secure information relating to the social
security number or numbers and the address or addresses of any
obligor,
and the name or names and address or addresses of any employer or employers, in order to provide notice between such
agencies to aid the Bureau for Child Support Enforcement in
requesting state income tax deductions and to aid the Tax
Commissioner in enforcing such deductions. In each such case, the
Tax Commissioner, in processing the state income tax deduction,
shall notify the Bureau for Child Support Enforcement of the
obligor's home address and social security number or numbers. The
Bureau for Child Support Enforcement shall provide this information
to any other state involved in processing the support order;
(d) For the purposes of this section, "past due support" means
the amount of unpaid past due support owed under the terms of a
support order to or on behalf of a child, or to or on behalf of a
minor child and the parent with whom the child is living;
regardless of whether the amount has been reduced to a judgment or
not.
(e) The Bureau for Child Support Enforcement may, under the
provisions of this section, enforce the collection of past due
support on behalf of a child who has reached the age of majority.
(f) The procedure shall, at a minimum, provide that prior to
notifying the Tax Commissioner of past due support, a notice to the
obligor as prescribed under subsection (a) of this section shall:
(1) Notify the obligor that a withholding will be made from
any refund otherwise payable to such obligor;
(2) Instruct the obligor of the steps which may be taken to
contest the determination of the Bureau for Child Support
Enforcement that past due support is owed or the amount of the past due support; and
(3) Provide information with respect to the procedures to be
followed, in the case of a joint return, to protect the share of
the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by
the Tax Commissioner that the refund from which withholding is
proposed to be made is based upon a joint return, and if the past
due support which is involved has not been assigned to the
Department of Health and Human Resources, the Bureau for Child
Support Enforcement may delay distribution of the amount withheld
until such time as the Tax Commissioner notifies the Bureau for
Child Support Enforcement that the other person filing the joint
return has received his or her proper share of the refund, but such
delay shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax
Commissioner under the provisions of this section and paid to the
Bureau for Child Support Enforcement, if the Bureau for Child
Support Enforcement subsequently determines that the amount
certified as past due was in excess of the amount actually owed at
the time the amount withheld is to be distributed, the agency shall
pay the excess amount withheld to the obligor thought to have owed
the past due support or, in the case of amounts withheld on the
basis of a joint return, jointly to the parties filing the return.
(i) The amounts received by the Bureau for Child Support
Enforcement shall be distributed in accordance with the provisions
for distribution set forth in 42 U.S.C. § 657.
§48-18-118a. Obtaining refunds of overpaid support from state
income tax refunds.
(a) Definitions.
(1) "Obligee" means the same as that term is defined in
section two-hundred thirty-four, article one of this chapter.
(2) "Obligor" means the same as that term is defined in
section two hundred thirty-five, article one of this chapter.
(3) "Overpaid support" means the same as that term is defined
in section two hundred thirty-five, article one of this chapter.
(b) The Tax Commissioner shall cooperate with the Commissioner
of the Bureau for Child Support Enforcement in establishing and
implementing procedures for the collection of overpaid child
support from state income tax refunds that are payable to obligees.
The Tax Commissioner shall collect the refunds and send the amounts
to the Bureau for Child Support Enforcement for distribution to
obligors who made the overpayment.
§48-18-120. Statements of account.
The Bureau for Child Support enforcement shall provide annual
statements of their account to each obligor and obligee without
charge. Additional statements of account shall be provided at a
fee of five dollars, unless such fee is waived pursuant to a rule
promulgated by the commission. Statements provided under this
subsection are in addition to statements provided for judicial
hearings. The commissioner shall establish procedures whereby an
obligor or obligee can contest or correct a statement of account.
§48-18-126. Review and adjustment of child support orders.
(a) A party seeking a modification of a child support order
pursuant to section one hundred five, article eleven of this
chapter and section one hundred six, article fourteen of this
chapter shall file a petition for modification with the circuit
clerk's office in the county where the original order was issued.
Any petition for modification filed with the circuit clerk shall
constitute an application for services with the Bureau for Child
Support Enforcement and the circuit clerk shall forward the
petition for modification to the Bureau for Child Support
Enforcement within seven days of receipt.
(b) A party seeking the recalculation of support and
modification of the support order shall state the reason for the
requested decrease or increase in their petition for modification
on the standard form to be provided by the clerk of the circuit
court. The standard form shall be verified and signed by the filing
party and filed with clerk of the circuit court. Any available
documentary evidence as to the circumstances which have given rise
to the need for a modification shall be filed with the standard
form.
(c) The Bureau for Child Support Enforcement shall serve a
notice of the filing and a copy of the standard form upon both
parties within ten days of receipt from the clerk of the circuit
court. The Bureau for Child Support Enforcement shall also issue a
subpoena duces tecum for financial documentation to the opposing
party by certified mail, return receipt requested, pursuant to section one hundred twenty-three, article eighteen of this chapter
with delivery restricted to the addressee, in accordance with Rule
4(d)(1)(D) of the West Virginia Rules of Civil Procedure.
(d) The notice and subpoena shall inform the party that unless
financial information is received within twenty days of receipt of
the notice and subpoena as evidenced by the return receipt, the
Bureau for Child Support Enforcement will recalculate the child
support amount pursuant to the guidelines set forth in article
thirteen of this chapter and based upon the information provided by
the requesting party or readily available to the Bureau for Child
Support Enforcement. If necessary, the Bureau for Child Support
Enforcement shall attribute income to the opposing party as
provided for in article thirteen of this chapter.
(e) The Bureau for Child Support Enforcement shall recalculate
the support obligation within forty-five days of the initial filing
of the petition for modification. The recalculation and a proposed
order of modification, if modification is deemed to be appropriate,
shall be served upon both parties 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.
In determining whether to administratively modify a support
obligation the Bureau shall use the standards for modification of
a support obligation found in subsection b of article 11, section
105 of this chapter.
(f) If the administrative order is not contested by either
party in writing within ten working days of the receipt of the proposed administrative order, the Bureau for Child Support
Enforcement Attorney will execute the administrative order and
forward the original administrative order to the clerk of the
circuit court for entry and direct the clerk of the circuit court
to forward certified copies of the final administrative order to
all parties.
(g) The final administrative child support order shall set
forth the justification for the modification. A copy of the
calculation work sheet as provided in article thirteen of this
chapter shall be attached to the order. Final administrative child
support orders shall make such relief retroactive to the date of
service of the petition for modification on the opposing party.
(h) A final administrative order may be appealed to the family
court judge within twenty days from the date of entry by the clerk
of the circuit court.
(i) Final administrative orders entered by the Bureau for
Child Support Enforcement shall be accorded the same force and
effect as an order entered by a family court judge or a circuit
court judge.
(j) The authority of the Bureau for Child Support Enforcement
to conduct an administrative child support review is limited solely
to modification of child support amounts. Any other issues,
including, but not limited to, modification of spousal support,
visitation and property distribution, shall be addressed by the
family court.
(k) The Supreme Court of Appeals shall develop the all standard forms required by this section.
§48-18-126a. Family court review of final administrative orders of
the Bureau for Child Support Enforcement.
A person who alleges that he or she will be adversely affected
or aggrieved by a final Child Support Enforcement is entitled to a
de novo review of the administrative order by the family court.
§48-18-126b. Petition for review.
(a) Within twenty days following the entry of an
administrative order by the Bureau for Child Support Enforcement,
either party may file a petition for review with the family court.
(b) A petition for review of a administrative order of the
Bureau for Child Support Enforcement shall be filed in the office
of the clerk of the circuit court. At the time of filing the
petition, a copy of the petition for review must be served on all
parties to the proceeding in the same manner as pleadings
subsequent to an original complaint are served under Rule 5 of the
West Virginia Rules of Civil Procedure.
(c) The family court judge may require, or a party may choose
to submit with the petition for review, a brief in support of the
petition.
(d) A respondent shall have fifteen days after the filing of
a petition to file a reply to the petition for review. The reply
must be served on all parties to the proceeding in the same manner
required for service of the petition. The family court judge may
require, or a party may choose to submit with the reply, a brief in opposition to the petition.
(e) In addition to the reply, the respondent may file a
cross-petition to the petition for review within fifteen days after
the filing of the petition. The respondent to the cross-petition
shall have fifteen days after the filing of the cross-petition to
file a reply. The cross-petition and any reply must be served in
the same manner required for service of the original petition. The
family court judge may require or either party may choose to submit
a brief on the cross-petition.
(f) The Bureau for Child Support Enforcement shall not be
responsible for any fees, including, but not limited to, filing
fees, service fees and attorney fees, associated with a review of
an administrative child support order.
(g) The Supreme Court of Appeals shall develop and provide
forms for petitions for review filed pursuant to this section. The
forms shall be made available for distribution in the offices of
the clerks of the circuit courts and in the offices of the family
court judges.
§48-18-126c. Review by circuit court; record; standard of review;
temporary order upon remand.
(a) The family court judge may enter an order refusing to
consider the petition for review or a cross-petition for review if
the court finds:
(1) The party presenting the petition has not complied with
required procedures, including service on the other party;
(2) The petition for review fails to state an error of law or
a misapplication of law to the facts or other grounds for reversal
or remand; or
(3) Construing the financial evidence presented to the Bureau
for Child Support Enforcement in the light most favorable to the
party filing the petition for review, the petition fails to state
a genuine issue as to any fact material to the decision of the
attorney for the Bureau for Child Support Enforcement.
(b) If the family court does not enter an order refusing to
consider the petition for review, the court shall consider the
review and may affirm or reverse the administrative order or may
affirm or reverse the order in part. An administrative order may
not be remanded to the Bureau for Child Support Enforcement.
(c) If the family court judge agrees to consider a petition
for review, the court shall provide the parties an opportunity to
appear for oral argument, present evidence, upon the request of
either party or in the discretion of the court.
(d) The family court judge must enter an order ruling on a
petition for review within sixty days from the last day a reply to
the petition for review could have been filed.
NOTE: The purpose of this bill is to: (1)clarify the
definition of attributed income; (2) clarify that prescription
pharmaceuticals are included in medical support; (3) clarify that
an inmate's concession account is considered income for child
support purposes; (4) reducing the rate of interest charged on
child support orders;(5)clarify that support automatically extends
past age 18, not to exceed age 20, when a child is still in high
school by operation of law; (6) to provide for administrative
modification of child support orders; (7) clarify when funds are to
be refunded; (8) reinsert a statute that was deleted during recodification relating to default and temporary orders; (9)
clarify that the Bureau may bring an action for support in medical
only cases; (10) clarify refund procedures when a party is
deceased; (11) clarify where to file an affidavit of accrued
support and to remove restrictive reporting requirements; (12)
establish a definitive statute of limitations for child support
orders;(13) clarify that fees and overpayments may be collected
through income withholding; (14) clarify that the Bureau for Child
Support Enforcement is not responsible for refunding support
collected in good faith; (15)clarify that withholding limitations
do not apply to bonuses; (16) provide strengthened remedies against
employers who fail to comply; (17) correct code sites; (18) have
the penalty for civil contempt be the same whether the action is
initiated by a private individual or by the bureau; (19)authorize
the Bureau for Child Support Enforcement to add an additional one
hundred dollars to a withholding when the obligor is in
arrears;(20) remove the provision requiring the BCSE attorney meet
with an individual and to allow a staff member to fulfill this
duty; (21) clarify that the Tax Commissioner has the authority to
deny issuance or re-issuance of a business license;(22)to
rconstitute the Support Enforcement Commission;(23)authorize the
Commissioner to study the child support formula as required by 45
C.F.R. 302.56(C)(3)(e);(24) authorize the Tax Commissioner to
release the names and address of employers to the Bureau for Child
Support Enforcement;(25) establish procedures to collect
overpayments from obligees; to (26) repeal the provision
concerning the issuance of payment coupons; and to (27) clarify
that the Bureau for Child Support Enforcement shall review all TANF
cases every three years; and to (28)make the requirement provisions
of process of service consistent.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Section §48-13-804, §48-18-118a, §48-18-126a, §48-17-126b and
§48-17-126c are new therefore strike-throughs and underscoring have
been omitted.
Sections §48-17-103, §48-17-105 and §48-17-109 have been
substantially rewritten therefore strike-throughs and underscoring
have been omitted.