ENROLLED
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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[Passed April 16, 2005; in effect ninety days from passage.]
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AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §48-11-106a; to amend
said code by adding thereto a new section, designated §48-14-
107; and to amend said code by adding thereto six new
sections, designated §48-18-201, §48-18-202, §48-18-203, §48-
18-204, §48-18-205 and §48-18-206, all relating to
modification of child support orders; allowing the Bureau for
Child Support Enforcement to assist a party seeking the
recalculation of support and modification of a child support
order due to a substantial change in circumstances; providing
request for assistance; notice and filing procedures; granting
subpoena powers; providing circumstances under which
application may be refused; requiring certain information be
provided; opportunity to meet with parties prior to filing of
petition for a proposed order; providing for the submission
and consideration of proposed modified child support orders to
the family court; establishing filing, related notice and
review procedures for petitions for modification; and providing that a party may file a request for modification if
Bureau of Child Support Enforcement rejects request for
assistance.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §48-11-106a; that said
code be amended by adding thereto a new section, designated §48-14-
107; and that said code be amended by adding thereto six new
sections, designated §48-18-201, §48-18-202, §48-18-203, §48-18-
204, §48-18-205 and §48-18-206, all to read as follows:
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-106a. Modification of support order with the assistance of
Bureau for Child Support Enforcement.
In addition to any other procedure which may exist by law, any
party seeking the recalculation of support and modification under
a child support order due to a substantial change in circumstances
pursuant to the provisions of section one hundred six of this
article may seek and obtain the assistance of the Bureau of Child
Support Enforcement, pursuant to the procedures established under
the provisions of sections two hundred one through two hundred six,
inclusive, article eighteen of this chapter, in the preparation,
assessment and presentation of an appropriate petition for
modification of a support order, including the identification and
narrowing of issues associated with a requested recalculation of
support prior to filing the petition and the preparation and
presentation of an appropriate petition and proposed order for modification for consideration by the family court.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-107. Modification of support order with the assistance of
Bureau for Child Support Enforcement.
In addition to any other procedure which may exist by law, any
party seeking the recalculation of support and modification under
a child support order due to a substantial change in circumstances
pursuant to the provisions of section one hundred six of this
article may seek and obtain the assistance of the Bureau of Child
Support Enforcement, pursuant to the procedures established under
the provisions of sections two hundred one through two hundred six,
inclusive, article eighteen of this chapter, in the preparation,
assessment and presentation of an appropriate petition for
modification of a support order, including the identification and
narrowing of issues associated with a requested recalculation of
support prior to filing the petition and the preparation and
presentation of an appropriate petition and proposed order for
modification for consideration by the family court.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-201. General provisions related to requests for assistance,
recalculation of support amounts, preparation of petition and
proposed orders.
(a) An obligor or an obligee under a child support order may
seek and obtain the assistance of the Bureau for Child Support
Enforcement to perform a recalculation of the support amount and
prepare and present a petition seeking modification of a child support order and the presentation of a proposed order modifying
support to the family court.
(b) A request for services authorized by this section shall
constitute an application for services from the Bureau for Child
Support Enforcement.
(c) The duties and actions directed or authorized when a
request is made pursuant to this section shall be exercised by the
employees and agents of the Bureau for Child Support Enforcement
under the supervision and direction of Bureau for Child Support
Enforcement attorneys as part of, and in addition to, their duties
as set out in section one hundred three, article nineteen of this
chapter.
(d) In performing its duties under this section, the Bureau
for Child Support Enforcement is authorized to issue subpoenas and
subpoenas duces tecum, pursuant to the provisions of section one
hundred twenty-three of this article, to require an obligor or
obligee to produce and permit inspection and copying of designated
books, papers, documents or tangible things pursuant to Rule 45 of
the Rules of Civil Procedure or section one hundred twenty-three of
this article.
(e) When the Bureau for Child Support Enforcement is
authorized or required by this section to notify or give notice to
a party, the notice shall be given in the same manner as required
for service of a petition for modification of support filed with
the family court.
(f) The procedures and forms used shall provide that one party may request that their residential address and the address and
identity of the employer not be revealed to another party.
(g) The Bureau for Child Support Enforcement may refuse to
accept a request or take action on a request for assistance if it
determines there are existing ongoing proceedings which would
create a conflict, or if it determines that the request was not in
good faith based on the allegations made, a history of multiple
such requests or other information. If the Bureau for Child
Support Enforcement makes a determination to refuse the request for
assistance, it shall notify the party making the request for
assistance and, if the responding party has already been notified
of the request, the responding party.
(h) The Bureau for Child Support Enforcement shall prepare an
explanation of the process and procedures it will use to process
the request for assistance under this section. The explanation
shall be made available generally to the public, given to every
person who makes a request and included with the notice to the
responding party.
§48-18-202. Request for assistance by party.
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.
§48-18-203. Bureau processing of request for assistance or
recalculation.
(a) Upon receipt of a request from a party pursuant to section
two hundred two of this article, the Bureau for Child Support
Enforcement shall notify the responding party that a request for assistance in the recalculation of the support amount and the
related preparation and presentation of a petition or proposed
order to modify an existing child support order has been submitted
to the Bureau for Child Support Enforcement.
(b) As a part of the notification provided under subsection
(a) of this section, notification provided by the Bureau for Child
Support Enforcement to the responding party shall include the
following:
(1) A blank information statement form and an explanation of
the form;
(2) A statement advising the responding party that if the
responding party does not fill out and return the information
statement with accompanying documentation, that the information
contained on the requesting party's information statement and any
attached documentation may be used to prepare a petition and
proposed order to modify the parties' existing child support
obligations and filed with the family court, if the submitted
information shows a substantial change in the parties'
circumstances;
(3) A copy of the information statement supplied by the
requesting party in support of its request;
(4) A request that the responding party submit a statement and
supply a copy of any information or documentation which the
responding party may have which would challenge, contradict or
supplement the information which has been previously submitted by
the requesting party to allow the Bureau for Child Support Enforcement to more accurately recalculate any modified child
support obligations of the parties;
(5) An explanation that the Bureau for Child Support
Enforcement may refuse to accept a request or take action on a
request if it determines there are existing ongoing proceedings
which would create a conflict;
(6) A request that the responding party provide a list of all
other known proceedings, pending court proceedings or other
requests for recalculation or modification of the parties'
respective child support obligations; and
(7) An explanation of the process to be followed by the Bureau
for Child Support Enforcement in providing the requested
assistance, recalculation of the parties' modified child support
obligations, including the preparation of a petition, and proposed
order to modify the parties' existing child support obligations,
when appropriate.
(c) The Bureau for Child Support Enforcement may issue a
subpoena or subpoena duces tecum, pursuant to the provisions of
section one hundred twenty-three of this article, to require the
responding party to produce and permit inspection and copying of
designated books, papers, documents or tangible things which are
relevant to determine child support.
(d) The Bureau for Child Support Enforcement may issue a
subpoena, pursuant to the provisions of section one hundred twenty-
three of this article, to produce and permit inspection and copying
of designated books, papers, documents or tangible things relevant to the determination of child support to persons other than the
parties to the support order.
(e) The Bureau for Child Support Enforcement may use other
information and other communications or procedures available to the
Bureau for Child Support Enforcement to gather information relevant
to the determination of child support.
§48-18-204. Request for meeting with the Bureau.
(a) Either party may ask for an in-person meeting with the
Bureau prior to the preparation or presentation of any petition to
seek a modification of a child support order or any proposed
modification order to the family court. As a part of the initial
contact and notice to the parties after its receipt of an
assistance request under this article, the Bureau for Child Support
Enforcement shall inform the parties of their right to meet with
the Bureau for Child Support Enforcement to discuss the
circumstances and any relevant factors pertaining to the parties'
child support obligations. If either party asks for a meeting, the
responding party shall be notified that a meeting has been
requested. The parties shall not meet with the Bureau at the same
time except as allowed in the discretion of the Bureau. No party
may be required to meet with the Bureau.
(b) A party may modify an information statement or provide
additional documents at the meeting or at any time before the
Bureau sends its proposed order to the family court.
§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 or 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.
§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 may proceed to review the petition
and proposed order sua sponte and may 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.
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