Introduced Version
House Bill 4489 History
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Committee Substitute
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Key: Green = existing Code. Red = new code to be enacted
H. B. 4489
(By Delegates DeLong, Amores, Varner,
Caputo, Stemple, Perry and Trump)
[Introduced February 16, 2004
; referred to the
Committee on the Judiciary.]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §48-11-108, relating
to child support; lien upon proceeds of child support debtor's
proceeds from a civil judgment, arbitration or workers'
compensation case; determination of whether the prevailing
party in the judgment, arbitration or workers' compensation
case is a child support debtor; and the method of proceeds
disbursement.
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 §48-11-108, to read as
follows:
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-108. Lien on child support judgment debtor's net proceeds
a settlement, judgment or award.
(a) A judgment for child support entered and docketed with the
clerk of the pertinent court of record shall be a lien against the
net proceeds of any settlement negotiated prior or subsequent to
the filing of a lawsuit, civil judgment, civil arbitration award or
workers' compensation award and shall have priority over all other
civil judgments unless otherwise provided by law. The lien shall
stay the distribution of the net proceeds to the prevailing party
until the child support judgment is satisfied. As used in this
article "net proceeds" means any amount of money, in excess of two
thousand dollars, payable to the prevailing party after attorney
fees, witness fees, court costs, fees for health care providers and
other costs related to the lawsuit or settlement are deducted from
the award and "prevailing party" shall not include a partnership,
corporation, government entity or minor child.
(b) Before distributing any net proceeds of a settlement,
judgment or award to the prevailing party: (1) The prevailing
party shall provide the attorney or insurance company responsible
for the final distribution of the funds with a certification that
includes the prevailing party's full name, mailing address, date of
birth and social security number; and (2) the attorney representing
the prevailing party shall initiate a search of child support
judgments, through bureau for child support or a private judgment
search company that maintains information on child support
judgments, to determine if the prevailing party is a child support judgment debtor. If the prevailing party is not represented by an
attorney, the judgment search shall be initiated by the opposing
attorney or an insurance company before the proceeds are
distributed to the prevailing party. In a workers' compensation
action, the workers' compensation commission or insurance company
shall initiate the judgment search. The bureau for child support
or judgment search company shall provide a certification to the
attorney, insurance company or party initiating the lawsuit
identifying whether or not the prevailing party is a child support
judgment debtor.
If there are no attorneys representing either party in a civil
lawsuit, the party bringing the lawsuit shall initiate the judgment
search and shall be required to file the certification with the
court at least ten working days prior to the trial or with the
stipulation that the certification shall be filed at the time of
the settlement or dismissal of the lawsuit.
For moneys deposited with the court, no distribution of funds
shall be made until the attorney or prevailing party provides the
clerk of the pertinent court with a copy of the certification
showing that the prevailing party is not a child support judgment
debtor.
The fee for a judgment search is chargeable against the net
proceeds as a cost of the settlement, judgment or award.
(c) If the certification shows that the prevailing party is not a child support judgment debtor, the net proceeds may be paid
to the prevailing party immediately. If the certification shows
that the prevailing party is a child support judgment debtor, the
attorney or insurance company that initiated the search shall
contact the bureau for child support to arrange for the
satisfaction of the child support judgment. The attorney or
insurance company shall notify the prevailing party of the intent
to satisfy the child support judgment prior to the disbursement of
any funds to the prevailing party. Upon receipt of a warrant of
satisfaction for the child support judgment, the attorney or
insurance company shall pay the balance of the settlement, judgment
or award to the prevailing party. If the net proceeds are less
than the amount of the child support judgment, the entire amount of
the net proceeds shall be paid to the bureau for child support as
partial satisfaction of the judgment.
If there are no attorneys representing either party in a civil
lawsuit and the certification filed with the court shows that the
prevailing party is a child support judgment debtor, the court
shall order that the opposing party pay the amount of the child
support judgment to the probation division before any funds are
paid to the prevailing party. The opposing party shall also insure
that any judgment related to the lawsuit docketed with the clerk of
the pertinent court reflects the bureau for child support's
superior claim to the funds.
(d) An attorney or insurance company shall not be liable for
distributing net proceeds to the prevailing party based on the
results of a judgment certification showing the prevailing party is
not the debtor of a child support judgment, if it is later shown
that the prevailing party provided inaccurate personal information
on the initial certification to the attorney or the insurer.
(e) An attorney who, in accordance with this article,
satisfies a child support judgment from the net proceeds of a
settlement, judgment or award, shall not be liable for payments
which otherwise would have been made pursuant to subsection (a) of
this section which were not so identified to the attorney at the
time of satisfaction.
(f) An attorney who, or insurance company that, in accordance
with this article, satisfies a child support judgment from the net
proceeds of a settlement, judgment or award, shall not be liable to
the prevailing party or to the prevailing party's creditors.
(g) An attorney shall not be required to challenge a child
support judgment unless retained by the prevailing party to do so.
(h) A private judgment search company is prohibited from using
any information provided by an attorney or insurance company in
accordance with this article for any purpose other than: (1)
Determining if the prevailing party is the debtor of a child
support judgment; and (2) preparing a certification as required
pursuant to section (b) of this section.