H. B. 2199
(By Delegate Tucker)
[Introduced January 13, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section nineteen, article one-a,
chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
domestic relations; child support; and eliminating
compensation paid for personal service as overtime pay from
the definition of gross income in the formula used to
determine the amount of child support obligations.
Be it enacted by the Legislature of West Virginia:
That section nineteen, article one-a, 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 1A. ENFORCEMENT OF FAMILY OBLIGATIONS.
§48A-1A-19. Gross income.
(a) "Gross income" means all earned and unearned income.
The word "income" means gross income unless the word is otherwise
qualified or unless a different meaning clearly appears from the
context. When determining whether an income source should be
included in the child support calculation, the court or master
should consider the income source if it would have been available
to pay child-rearing expenses had the family remained intact or,
in cases involving a nonmarital birth, if a household had been
formed.
(b) "Gross income" includes, but is not limited to, the
following:
(1) Earnings in the form of salaries, wages, commissions,
fees, bonuses, profit sharing, tips and other income;
(2) Any payment from a pension plan, an insurance contract,
an annuity, social security benefits, unemployment compensation,
supplemental employment benefits, workers' compensation benefits
and state lottery winnings and prizes;
(3) Interest, dividends or royalties;
(4) Expense reimbursements or in kind payments such as
business expense accounts, business credit accounts, and tangible
property such as automobiles and meals, to the extent that they
provide the parent with property or services he or she would
otherwise have to provide;
(5) Attributed income of the parent, calculated in accordance with the provisions of section three, article one-a of
this chapter;
(6) Compensation paid for personal services as overtime pay:
Provided, That overtime compensation may be excluded from gross
income if the parent with the overtime income demonstrates to the
court or master that the overtime work is voluntarily performed
and that he or she did not have a previous pattern of working
overtime hours prior to separation or birth of a nonmarital
child;
(7) (6) Income from self-employment or the operation of a
business, minus ordinary and necessary expenses which are not
reimbursable, and which are lawfully deductible in computing
taxable income under applicable income tax laws, and minus FICA
and medicare contributions made in excess of the amount that
would be paid on an equal amount of income if the parent was
not self-employed:
Provided, That the amount of monthly income
to be included in gross income shall be determined by averaging
the income from such employment during the previous thirty-six
month period or during a period beginning with the month in which
the parent first received such income, whichever period is
shorter;
(8) (7) Income from seasonal employment or other sporadic
sources:
Provided, That the amount of monthly income to be included in gross income shall be determined by averaging the
income from seasonal employment or other sporadic sources
received during the previous thirty-six month period or during a
period beginning with the month in which the parent first
received such compensation, whichever period is shorter; and
(9) (8) Alimony and separate maintenance receipts.
(c) Depending on the circumstances of the particular case,
the court or master may also include severance pay, capital gains
and net gambling, gifts or prizes as gross income.
(d) "Gross income" does not include:
(1) Income received by other household members such as a new
spouse;
(2) Child support received for the children of another
relationship;
(3) Means-tested assistance such as aid to families with
dependent children, supplemental security income and food stamps;
and
(4) A child's income unless the court or master determines
that the child's income substantially reduces the family's living
expenses;
and
(5) Compensation paid for personal services as overtime pay.
NOTE: The purpose of this bill is to eliminate compensation paid for personal services as overtime pay from the definition of
gross income when determining child support obligations.
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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