ENGROSSED
Senate Bill No. 584
(By Senators Kessler, Dempsey, Foster, Hunter, Jenkins, Minard,
Oliverio, White, Barnes, Caruth, Deem, Harrison, Lanham, McKenzie
and Weeks)
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[Originating in the Committee on the Judiciary;
reported March 17, 2005.]
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A BILL to amend and reenact §48-11-106 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto four new sections, designated §48-11-106a, §48-11-
106b, §48-11-106c and §48-11-106d, all relating to allowing
the Bureau for Child Support Enforcement to enter
administrative orders for modification of child support
amounts; and providing for review of the administrative order
by the family court.
Be it enacted by the Legislature of West Virginia:
That §48-11-106 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended by
adding thereto four new sections, designated §48-11-106a, §48-11-
106b, §48-11-106c and §48-11-106d, all to read as follows:
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-106. Administrative process for modification.
(a)An expedited process for modification of a child support
order may be utilized if:
(1)Either parent experiences a substantial change of
circumstances resulting in a decrease in income due to loss of
employment or other involuntary cause;
(2)An increase in income due to promotion, change in
employment or reemployment; or
(3)Other such change in employment status.
(b)The party seeking the recalculation of support and
modification of the support order shall file a description of the
decrease or increase in income and an explanation of the cause of
the decrease or increase on a standardized form to be provided by
the secretary-clerk or other employee of the family court. The
standardized form shall be verified by the filing party. Any
available documentary evidence shall be filed with the standardized
form. Based upon the filing and information available in the case
record, the amount of support shall be tentatively recalculated.
(c)The secretary-clerk shall serve a notice of the filing,
a copy of the standardized form and the support calculations upon
the other party by certified mail, return receipt requested, with
delivery restricted to the addressee, in accordance with rule
4(d)(1)(D) of the West Virginia rules of civil procedure. The
secretary-clerk shall also mail a copy by first-class mail, to the local office of the bureau for child support enforcement for the
county in which the family court is located in the same manner as
original process under rule 4(d) of the West Virginia rules of
civil procedure.
(d)The notice shall fix a date fourteen days from the date
of mailing and inform the party that unless the recalculation is
contested and a hearing request is made on or before the date
fixed, the proposed modification will be made effective. If the
filing is contested, the proposed modification shall be set for
hearing; otherwise, court shall enter an order for a judgment by
default. Either party may move to set aside a judgment by default,
pursuant to the provisions of rule 55 or rule 60(b) of the rules of
civil procedure.
(e)If an obligor uses the provisions of this section to
expeditiously reduce his or her child support obligation, the order
that effected the reduction shall also require the obligor to
notify the obligee of reemployment, new employment or other such
change in employment status that results in an increase in income.
If an obligee uses the provisions of this section to expeditiously
increase his or her child support obligation, the order that
effected the increase shall also require the obligee to notify the
obligor or reemployment, new employment or other such change in
employment status that results in an increase in income of the
obligee.
(f)The supreme court of appeals shall develop the
standardized form required by this section.
(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 file a description of the
decrease or increase in income and an explanation of the cause of
the decrease or increase on a standard form to be provided by the
clerk of the circuit court simultaneously with the filing of the
petition for modification. The standard form shall be verified and
signed by the filing party and filed with clerk of the circuit
court. Any available documentary evidence 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 prepare an
administrative order for the recalculation of support within sixty
days of the initial filing of the petition for modification. The
recalculation 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.
(f) If the administrative order is not contested, the Bureau for Child Support Enforcement will forward the original 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.
§48-11-106a. Final administrative orders.
(a)An attorney for the Bureau for Child Support Enforcement
shall conduct an administrative child support review and
determination based upon all available documentation pursuant to
section one hundred six of this article. The attorney shall enter
an order with the clerk of the circuit court within twenty days of
the deadline for receipt of supporting financial documentation. The
clerk of the circuit court shall send a certified copy of the final
administrative order to the attorney for each party, or if a party
is unrepresented, to the party, in the same manner as pleadings
subsequent to an original complaint are served in accordance with
Rule 5 of the West Virginia Rules of Civil Procedure.
(b)All final orders of the Bureau for Child Support
Enforcement shall:
(1) Include findings of fact and conclusions of law on all
issues presented at the time of the administrative child support
review;
(2) Contain other pertinent documentation relied upon by the
Bureau for Child Support Enforcement; and
(3) Set forth appropriate sanctions, relief or denial of
relief.
(c) All final orders of the Bureau for Child Support
Enforcement shall include a notice of the right to petition for review of the final administrative order to the family court judge.
§48-11-106b. Family court review of final administrative order of
the Bureau for Child Support Enforcement.
A person who alleges that he or she will be adversely affected
or aggrieved by a final administrative order of the Bureau for
Child Support Enforcement is entitled to a review of the
proceedings by the family court. The final administrative order of
the Bureau for Child Support Enforcement is subject to de novo
review by the family court.
§48-11-106c. 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.
§48-11-106d. 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. If the family court
judge does not enter the order within the sixty-day period or does
not, within the sixty-day period, enter an order stating just cause
why the order has not been timely entered, the circuit clerk shall
send a written notice to the parties that unless the parties both
file an objection within fourteen days of the date of the notice,
the appeal will be transferred to the circuit court due to the
failure of the family court to timely enter an order. The review
shall be transferred without the necessity of the filing of any
petition or further document by the petitioner.
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