ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 504
(Senators Bowman and Unger, original sponsors)
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[Passed March 8, 2008; in effect ninety days from passage.]
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AN ACT
to amend and reenact §38-3-18 of the Code of West Virginia,
1931, as amended; 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, §48-14-203, §48-14-302,
§48-14-404, §48-14-407, §48-14-502, §48-14-503, §48-14-701 and
§48-14-801 of said code; to amend said code by adding thereto
a new section, designated §48-14-108; 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, §48-18-202, §48-18-205 and §48-18-206 of
said code; and to amend said code by adding thereto a new section, designated §48-18-118a, all relating generally to
child support enforcement; providing for extension of statute
of limitations for child support in certain instances;
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 under certain circumstances; establishing a
procedure for refunding of properly withheld amounts when a
support order is modified; requiring copy of modification
order be sent to Bureau for Child Support Enforcement within
five days; 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; allowing
the collection through income withholding of court-ordered
fees; clarifying that withholding limitations do not apply to
bonuses; creating consistency among civil contempt penalties;
authorizing the Bureau for Child Support Enforcement to
collect an additional two 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 review of the
child support formula; requiring report to the Legislative
Oversight Commission on Health and Human Resources
Accountability; allowing the Tax Commissioner to supply names
and addresses of an obligor's employer to the Bureau for Child
Support Enforcement for enforcement of support obligations;
allowing collection of overpayments to support obligees from
state tax refunds; requiring that parties receive monthly
statements of child support accounts; requiring Bureau for
Child Support Enforcement determine when person owing child
support will be incarcerated more than six months and modify
child support; requiring Bureau for Child Support Enforcement
send notice to obligors in arrears one thousand dollars or
more of modification options; requiring petition for contempt
in certain cases; requiring motion for modification in certain
cases; providing Bureau for Child Support Enforcement one year
to send notification of modification options to obligors
currently in arrears one thousand dollars or more; clarifying
that when attorneys for the Bureau for Child Support
Enforcement enter a proposed order to modify a child support obligation without objection, a modification order will be
entered; and making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §38-3-18 of the Code of West Virginia, 1931, as amended,
be amended andw 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, §48-14-203, §48-14-302, §48-14-
404, §48-14-407, §48-14-408, §48-14-502, §48-14-503, §48-14-701 and
§48-14-801 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §48-14-108;
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, §48-18-202, §48-18-205 and §48-18-206 of
said code be amended and reenacted; and that said code be amended
by adding thereto a new section, designated §48-18-118a, 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 may be issued within ten years
after the date thereof. Where execution issues within ten years as
aforesaid, other executions may be issued on such judgment within ten years from the return day of the last execution issued thereon,
on which there is no return by an officer, or which has been
returned unsatisfied.
(b) For any order for child support in an action filed on and
after the amendment and reenactment of this section during the
legislative session of two thousand eight, an execution may be
issued upon a judgment for child 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 forth
in subsection (a) of this section commence when the youngest child
who 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 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 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.
§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 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) An order for child support 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 section one hundred one, article thirteen,
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 section
one hundred one, article thirteen,
et seq., of this chapter unless
the court disregards the guidelines or adjusts the award as
provided in section seven hundred two of said article.
(d) The Supreme Court of Appeals shall make available to the courts a standard form for a petition for modification of an order
for support, which form will allege that the existing order should
be altered or revised because of a loss or change of employment or
other substantial change affecting income or that the amount of
support required to be aid is not within fifteen percent of the
child support guidelines. The clerk of the circuit court and the
secretary-clerk of the family court shall make the forms available
to persons desiring to represent themselves in filing a motion for
modification of the support award.
(e) Upon entry of an order modifying a child support amount
the court shall, no later than five days from entry of the order,
provide a copy of the modified order to the Bureau for Child
Support Enforcement. If an overpayment to one of the parties
occurs as a result of the modified terms of the order, funds
properly withheld by the Bureau for Child Support Enforcement
pursuant 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 support is to be established,
if a party has been served with proper pleadings and 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 establishing the defaulting party's child support obligation consistent with the
child support guidelines contained in this article.
(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 4, 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 one
hundred one of this article 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.
§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.
(a) 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.
(b) 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.
(b) 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) 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 thirty-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; and
(4) State the total amount of accrued support which has not
been paid by the obligor.
§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 part 4 of this article. If an
overpayment of spousal or child support occurs and an arrearage
exists, the Bureau for Child Support Enforcement 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 this
article:
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 with 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) The Bureau for Child Support Enforcement shall, by
administrative rule, establish procedures for promptly refunding to
obligors amounts which have been improperly withheld under the
provisions of this part. When a court reduces an order of support,
the Bureau for Child Support Enforcement is not liable for
refunding amounts which have been withheld pursuant to a court
order enforceable 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 section, 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 section 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 part 4 of
this article 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) Notwithstanding any other provision of this section, the
Bureau for Child Support Enforcement may withhold not more than
fifty percent of any earnings denominated as an employment-related
bonus to satisfy an outstanding child support arrearage.
§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 regional jail; or
(B) Commit the contemnor to the 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) In a commitment under subdivision (5), section five
hundred two of this article, the court shall confine the contemnor
for an indeterminate period not to exceed six months or until such
time as the contemnor has purged himself or herself, whichever
shall first occur.
(b) An obligor committed under subdivision (5), section five
hundred two of this article 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.
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.
§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.
(c) An increase in monthly support under this section will be
in addition to any amounts withheld from income pursuant to this
article.
(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 article
twelve, chapter eleven of this code authorizing a person to transact business in the State of West Virginia;
(2) A permit or license issued under chapter seventeen-b of
this code authorizing a person to drive a motor vehicle;
(3) A commercial driver's license issued under chapter
seventeen-e of this code authorizing a person to drive a class of
commercial vehicle;
(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;
(5) A license or registration issued under chapter thirty of
this code authorizing a person to practice or engage in a
profession or occupation;
(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;
(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;
(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;
(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;
(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;
(11) A license issued under article thirty-two or thirty-four,
chapter sixteen of this code authorizing persons to pursue a trade
or vocation in asbestos abatement or radon mitigation;
(12) A license issued under article eleven, chapter twenty-one
of this code authorizing a person to act as a contractor;
(13) A license issued under article two-c, chapter nineteen of
this code authorizing a person to act as an auctioneer; and
(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 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, chapter six of this code, chapter six-b of this
code, chapter twenty-nine-a of this code and chapter twenty-nine-b
of this code.
§48-17-102. Appointment of members of Support Enforcement
Commission; qualifications and eligibility.
(a) Of the 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 nonvoting
member of the commission.
(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 the first day of June, two thousand eight, 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 the first day of
June, two thousand eight, and on the first day of June every four
years thereafter.
(c) The commissioner shall report the commission's findings and recommendations to the Legislative Oversight Commission on
Health and Human Resources Accountability by the first day of July,
two thousand nine, 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 to the
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 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 voting 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 voting 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 data on the costs of and
expenditures necessary for rearing children. A process for review
of the 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 cost 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. 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 Bureau for Child Support Enforcement;
(2) To administer the Child Support Enforcement Fund created
pursuant to section one hundred seven of this article;
(3) 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;
(4) To keep the records and papers of the commission,
including a record of each proceeding; and
(5) To prepare, issue and submit reports of the commission.
(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 Commissioner for the Bureau for Child Support
Enforcement shall establish procedures necessary to enforce a support order through a notice to the Tax Commissioner which will
cause any refund of state income tax which would otherwise be
payable to an obligor to be reduced by the amount of overdue
support owed by such obligor.
(1) 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 monthly
statements of their account to each obligor and obligee without
charge. The commissioner shall establish procedures whereby an
obligor or obligee can contest or correct a statement of account.
§48-18-202. Request for assistance by party.
(a) To make a request for assistance under this article, a
party shall submit the request in writing to the Bureau for Child
Support Enforcement on a form provided by the bureau. The written
request form shall include all of the requesting party's
information known to the party that is relevant to determine the
child support amount. The request shall be accompanied by:
(1) A copy of the order being modified or, in the discretion
of the bureau, information sufficient to permit the bureau to
retrieve or identify the order;
(2) A form containing a statement of all of the requesting
party's information known to the party that is relevant to
determining the amount of child support, including a general
statement or argument advancing the reason the request is being
made;
(3) Copies of documentation reasonably available to the requesting party setting forth all of the requesting party's
information that is relevant to determine the amount of child
support;
(4) A statement setting forth the relevant information
pertaining to the responding party's earnings and child support
that is known or believed to be true by the requesting party;
(5) Copies of any relevant documentation which the requesting
party may have in its possession which would be relevant to
determining the responding party's child support obligations; and
(6) A statement of all other known proceedings, pending court
proceedings or other pending requests for assistance involving the
parties or related to the child or children whose support is being
reevaluated.
(b) Upon receipt of notification that an obligor is
incarcerated in a regional jail or a state or federal correctional
facility, the Bureau for Child Support Enforcement shall determine
whether the expected incarceration will exceed six months. If the
incarceration will exceed six months, the bureau shall file a
petition to modify child support.
§48-18-205. Bureau action on request of recalculation and
presentation of proposed order.
(a) If the bureau determines that no credible information
exists to establish finding of a substantial change in
circumstances as required by section one hundred five, article
eleven of this chapter or section one hundred six, article fourteen of this chapter, the Bureau for Child Support Enforcement shall
notify the parties of that fact and notify the parties that the
Bureau for Child Support Enforcement will not be preparing a
petition of proposed order seeking modification of the parties'
child support obligation. Under those circumstances, if the
parties disagree with the Bureau for Child Support Enforcement's
assessment and wish to independently file a petition for
modification, the parties may still seek modification of child
support by filing a petition for modification of an order for
support with the family court under the provisions of section one
hundred five or one hundred six, article eleven of this chapter or
under the provisions of section one hundred six, article fourteen
of this chapter.
(b) If the Bureau for Child Support Enforcement determines
that there has been a substantial change of circumstances as
required by section one hundred five, article eleven of this
chapter or by section one hundred six, article fourteen of this
chapter, then the Bureau for Child Support Enforcement shall
prepare a petition and proposed order modifying the child support
order to be filed with the clerk of the family court.
(c) Any such petition filed by the Bureau for Child Support
Enforcement filed pursuant to this article shall include the
following:
(1) A copy of the proposed order;
(2) A print-out of the child support guidelines calculations;
(3) A notice of the bureau's action;
(4) The documents and statements relied upon;
(5) Any statement of findings or justification the bureau is
required or determines to include; and
(6) A form and instructions for filing an objection to the
proposed order, should a party wish to do so, which form shall
require a statement of the ground or grounds for filing the
objection.
(d) The Bureau for Child Support Enforcement's proposed order
shall be based on the child support guidelines: Provided, That the
bureau may disregard the child support guidelines or adjust the
amount as allowed by section seven hundred two, article thirteen of
this chapter in the following instances:
(1) When the previous child support order disregarded the
child support guidelines, the grounds for the disregarding or
adjusting the guidelines are stated in the worksheet or previous
order or are agreed upon by the parties, or are otherwise clear,
and those grounds continue to exist and can be applied to the
current circumstances; or
(2) If new grounds for the disregard or adjustment are fully
explained in the proposed order.
(e) Within six months of the time that a child support
obligation becomes one thousand dollars in arrears the Bureau for
Child Support Enforcement shall notify the obligor that he or she
may be in violation of section twenty-nine, article five, chapter
sixty-one of this code, felony nonsupport, should the arrearage
increase to eight thousand dollars. The notice shall also advise the obligor of the availability of child support modification, the
amnesty program established in section three hundred two, article
one of this chapter and the possibility of establishing a payment
plan with the bureau: Provided, That where the monthly child
support obligation is greater than one thousand dollars, the notice
shall be sent when the arrearage equals to or greater than three
months child support obligation.
(1) If the obligor fails to respond within thirty days, the
Bureau for Child Support Enforcement shall file a petition for
contempt pursuant to section five hundred three, article fourteen
of this chapter.
(2) If the obligor responds within thirty days, the Bureau for
Child Support Enforcement shall review the response and file
appropriate pleadings which may include a motion for modification
of child support.
(3) The Bureau for Child Support Enforcement will have one
year from the amendment and reenactment of this section during the
two thousand eight legislative session to notify obligors who
currently owe one thousand dollars or more in child support
arrearages or, where the monthly child support obligation is
greater than one thousand dollars, the arrearage is equal to or
greater than three months child support obligation,
of the child
support modification options available to them.
§48-18-206. Family court action on petition and proposed order
prepared by Bureau for Child Support Enforcement.
(a) Upon receipt of petition for modification and proposed order prepared by the Bureau for Child Support Enforcement in
accordance with the provisions of this article, the circuit clerk
shall serve a copy of the petition and the proposed order upon all
parties to the proceeding by personal service or by United States
certified mail, return receipt requested, and direct the parties to
file any objections to the proposed modified child support order
within twenty days of the date of receiving such notice.
(b) Within five days of the filing of a petition for
modification and proposed order, the circuit clerk shall notify the
family court.
(c) If no party files timely objection to the proposed order
or timely requests a hearing on the petition after receiving such
notice, then the family court shall proceed to review the petition
and proposed order sua sponte, and shall issue the proposed order.
If the family court receives no objection, but the family court
concludes that the proposed order should not be entered or should
be changed, it shall set the matter for hearing.
(d) If the family court receives an objection to the petition
or proposed order, the family court shall set a date and time for
hearing.
(e) At any hearing on the proposed order, the family court
shall treat the proposed order as a motion for modification made by
the party requesting the bureau to initiate the modification. The
actions of the family court at a hearing shall be de novo and shall
not be an appeal from the bureau's recommended order. The family
court shall notify the parties of the hearing and of the parties' rights and the procedures to be followed.
(f) The fees to be assessed for filing and service of the
petition and the disbursement of the fee for petitions filed
pursuant to this section shall be the same as the fee charged by
the clerk for petitioning for an expedited modification of a child
support order, as set forth in section eleven, article one, chapter
fifty-nine of this code.