WEST virginia Legislature
2016 regular session
House Bill 4459
By Delegates Hicks, Rodighiero, Rohrbach, Perdue, J. Nelson, Rowe, Azinger, Deem, Reynolds, Eldridge and westfall
[Introduced February 9,
to the Committee on the Judiciary.]
A BILL to amend and reenact §48-11-105 and §48-11-106 of the Code of West Virginia, 1931, as amended; all relating to requiring in the event the amount of child support to be paid is modified by a later child support order, the amount to be paid is effective on the date the petition for the modification was filed, not the date the subsequent order was entered.
Be it enacted by the Legislature of West Virginia:
That §48-11-105 and §48-11-106 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 11. SUPPORT OF CHILDREN.
§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. In the event the amount of child support to be paid is modified by a later child support order, the amount of child support to be paid is effective on the date the petition for the modification was filed, not the date the subsequent order was entered.
(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 to 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.
§48-11-106. Expedited 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;
(3) Other such change in employment status; or
(4) If a military parent is called to military service.
(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 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, the 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) In the event the amount of child support to be paid is modified pursuant to this section, the amount of child support to be paid is effective from the date the petition for the modification was filed.
(e) (f) 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 of reemployment, new employment or other such change in employment
status that results in an increase in income of the obligee. (f) (g) The Supreme Court of Appeals shall develop
the standardized form required by this section.
NOTE: The purpose of this bill is to require in the event the amount of child support to be paid is modified by a later child support order, the amount of child support to be paid is effective from the date the petition for the modification was filed, not the date the subsequent order was entered.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.