HB 4442 Text

H. B. 4442

(By Delegates Brown, Sorah and Pino)
[Introduced February 11, 1994; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact section three, article five, chapter forty-eight-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating generally to the enforcement of spousal and child support; requiring the source of income to submit the amount withheld from the obligor's income to the child advocate office on the same day the obligor is paid.

Be it enacted by the Legislature of West Virginia:

That section three, article five, chapter forty-eight-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

ARTICLE 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS AND VISITATION.

§ 48A - 5 - 3. Withholding from income of amounts payable as support.

(a) The withholding from an obligor's income of amounts payable as spousal or child support shall be enforced by the children's advocate in accordance with the provisions of this section. Every support order heretofore or hereafter entered by a circuit court or a magistrate of this state and every support order entered by a court of competent jurisdiction of another state shall be considered to provide for an order of income withholding in accordance with the provisions of section fifteen-a or fifteen-b, article two, chapter forty-eight of this code, notwithstanding the fact that such support order does not in fact provide for such an order of withholding.

(b) In any case in which immediate income withholding is not required, the children's advocate shall cause the mailing of a notice to the obligor pursuant to this section when the support payments required by the order are in arrears in an amount equal to:
(1) One month's support, if the order requires support to be paid in monthly installments;
(2) Four weeks' support, if the order requires support to be paid in weekly or biweekly installments; or
(3) Two biweekly installments, if biweekly payments are provided.
(c) If notice required by subsection (b) of this section is appropriate, the children's advocate shall determine the time for a meeting between the obligor and the children's advocate and the time for a hearing before the family law master, and shall then set forth in such notice the times and places at which the meeting and hearing will be held if withholding is contested. The meeting and hearing may be scheduled on the same date, but in no case shall the meeting with the advocate be scheduled less than fifteen days after the date the notice is mailed nor shall the hearing before the master be scheduled more than twenty-one days after the date the notice is mailed. The children's advocate shall send such notice by first class mail to the delinquent obligor. The notice shall inform the delinquent obligor of the following:
(1) The amount owed;
(2) That it is proposed that there be withholding from the obligor's income of amounts payable as support, and that if withholding is uncontested, or is contested but determined appropriate, the amount withheld will be equal to the amount required under the terms of the current support order, plus amounts for any outstanding arrearages;
(3) The definition of "income" as defined in section three, article one of this chapter;
(4) That the withholding will apply to the obligor's present source of income and to any future source of income;
(5) That any action by the obligor to purposefully minimize his or her income will result in the enforcement of support being based upon potential and not just actual earnings;
(6) That payment of the arrearage after the date of the notice is not a bar to such withholding;
(7) That if the obligor fails to appear at the meeting, withholding will automatically occur as described in the notice;
(8) That a mistake of fact exists only when there is an error in the amount of current or overdue support claimed in the notice, or there is a mistake as to the identity of the obligor;
(9) That matters such as lack of visitation, inappropriateness of the support award, or changed financial circumstances of the obligee or the obligor will not be considered at any hearing held pursuant to the notice, but may be raised by the filing of a separate petition;
(10) That if the obligor contests the withholding, in writing, a meeting with the children's advocate will be held at a time and place set forth in the notice, for the purpose of attempting to settle any issues which are contested, and that a hearing before the family law master cannot be held until after the meeting with the children's advocate occurs;
(11) That if the meeting with the children's advocate fails to resolve the issues being contested, a hearing before the family law master will be held at a time and place set forth in the notice, and that following such hearing, the master will make a recommended order to the circuit court;
(12) That a master's recommended order as to withholding will become effective when it is confirmed and entered by the circuit court, and that if the obligor disagrees with the master's recommended order, he or she will be given the opportunity to make objections known to the circuit court; and
(13) That if, while the withholding is being contested, it is determined that the obligor is in arrears in an amount equal to or greater than one month's support obligation, but the amount of the arrearage is disputed, then income withholding for the current payment of support will be instituted, and may not be stayed pending a final determination as to the amount of arrearages due.
(d) Withholding should occur when the support order provides for immediate income withholding, or if immediate income withholding is not so provided, and the withholding is contested, then after entry of the master's recommended order by the circuit court. In any case where withholding should occur, the source of income shall proceed to withhold so much of the obligor's income as is necessary to comply with the order authorizing such withholding, up to the maximum amount permitted under applicable law. Such withholding, unless otherwise terminated under the provisions of this section, shall apply to any subsequent source of income or any subsequent period of time during which income is received by the obligor.
(e) 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 can 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 arrearages are 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) If 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) If 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) In addition to the percentage limitations set forth in subdivisions (2) and (3) of this subsection, it shall be a further limitation that when current payments plus arrearages are being withheld from salaries or wages in no case shall the total amounts withheld for current payments plus arrearages exceed the amounts withheld for current payments by an amount greater than ten percent of the obligor's disposable income.
(5) The provisions of this subsection shall apply directly to the withholding of disposable earnings of an obligor regardless of whether the obligor is paid on a weekly, biweekly, monthly or other basis.
(6) If an obligor acts so as to purposefully minimize his or her income and to thereby circumvent the provisions of this section 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.
(f) 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 child advocate office for distribution in accordance with the provisions of section four, article three of this chapter. 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. 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 must send the amount to be withheld from the obligor's income along with such identifying information as may be required by the child advocate office to the child advocate office ~~within ten days of the date~~ 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 child advocate office;
(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 if 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 section 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 the source of income may combine withheld amounts from obligors' income in a single payment to the child advocate office and separately identify the portion of the single payment which is attributable to each obligor;
(9) That the source of income must 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 must notify the child advocate office promptly when the obligor terminates his or her employment or otherwise ceases receiving income from the source of income, and must provide the obligor's last known address and the name and address of the obligor's new source of income, if known.
(g) The director shall, by administrative rule, establish procedures for promptly refunding to obligors amounts which have been improperly withheld under the provisions of this section.
(h) After implementation in accordance with the provisions of subsection (k), a source of income must send the amount to be withheld from the obligor's income to the child advocate office and must notify the child advocate office of the date of withholding, ~~within ten days of the date~~ the same date that the obligor is paid.
(i) In addition to any amounts payable as support withheld from the obligor's income, 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.
(j) Withholding of amounts payable as support under the provisions of this section is binding on the source of income until further notice by the child advocate office.
(k) Every source of income who receives a notice of withholding under the provisions of this section shall implement withholding no later than the first pay period or first date for the payment of income which occurs after fourteen days following the date the notice to the source of income was mailed.
(l) A source of income who employs or otherwise pays income to an obligor who is subject to withholding under the provisions of this section must notify the child advocate office promptly when the obligor terminates employment or otherwise ceases receiving income from the source of income, and must provide the office with the obligor's last known address and the name and address of the obligor's new source of income, if known.
(m) A source of income who has more than a single obligor who is subject to withholding from income under the provisions of this article may combine all withheld amounts into a single payment to the child advocate office, with the portion thereof which is attributable to each obligor being separately designated.
(n) A source of income is liable to an obligee, including the state of West Virginia or the department of health and human resources where appropriate, for any amount which the source of income fails to withhold from income due an obligor following receipt by such source of income of proper notice under subsection (f) of this section: Provided, That a source of income shall not be required to vary the normal pay and disbursement cycles in order to comply with the provisions of this section.
(o) A source of income who knowingly and willfully conceals the fact that the source of income is paying income to an obligor, with the intent to avoid withholding from the obligor's income of amounts payable as support, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars.
(p) If the children's advocate makes a written request to a source of income to provide information as to whether the source of income has paid income to a specific obligor, within the preceding sixty-day period, the source of income shall, within fourteen days thereafter, respond to such request, itemizing all such income, if any, paid to the obligor during such sixty-day period. A source of income shall not be liable, civilly or criminally, for providing such information in good faith.
(q) Support collection under the provisions of this section 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.
(r) Any source of income who discharges from employment, refuses to employ, or takes disciplinary action against any obligor subject to income withholding required by this section because of the existence of such withholding and the obligations or additional obligations which it imposes on the source of income, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars.
(s) In any case where immediate income withholding is not required then, at any time following a period of eighteen months during which the obligor has owed no arrearages to the obligee or to the state of West Virginia or any other state, if the obligee and obligor agree to the termination of withholding and demonstrate to the children's advocate that there is a reliable alternative method by which to make the support payments, they may request the children's advocate to terminate withholding and such withholding from income may cease until such time as further withholding is required by law. The director of the child advocate office shall, by legislative rule, establish state termination standards which will ensure, at a minimum, that withholding will not be terminated where there are indications that it is unlikely that support will continue without such withholding. The mere fact that all arrearages have been paid shall not be a sufficient ground for the termination of withholding.

NOTE: The purpose of this bill is to require the source of income, after the proper implementation period, to send the withheld amount to the Child Advocate's Office on the same day the obligor is paid.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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