COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 652
(By Senator Wooton)
____________
[Originating in the Committee on Judiciary;
reported April 4, 2001.]
____________

A BILL to amend and reenact section one hundred four, article eight, chapter forty-eight of the code of West Virginia, nineteen hundred thirty-one, as amended; to amend article nine of said chapter, by adding thereto a new section, designated section six hundred five; to amend and reenact section one hundred five, article twelve, of said chapter, and to further amend said article by adding thereto a new section, designated section fifteen; to amend and reenact section four hundred eight, article fourteen of said chapter; to amend and reenact section one hundred one, article twenty-four of said chapter; to amend and reenact section seventeen, article one, chapter fifty-two of said code; and to amend and reenact sections eleven and twenty-eight-a, article one, chapter fifty-nine of said code; all relating to domestic relations proceedings and child support.

Be it enacted by the Legislature of West Virginia:
That section one hundred four, article eight, chapter forty- eight of the code of West Virginia, nineteen hundred thirty-one, as amended, be amended and reenacted; that article nine of said chapter be amended by adding thereto a new section, designated six hundred five; that section one hundred five, article twelve, of said chapter be amended and reenacted; and that said article be further amended and reenacted by adding thereto a new section, designated section fifteen; that section four hundred eight, article fourteen of said chapter be amended and reenacted; that section one hundred one, article twenty-four of said chapter be amended and reenacted; that section seventeen, article one, chapter fifty-two of said code be amended and reenacted; and that sections eleven and twenty-eight-a of said article be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 8. SPOUSAL SUPPORT.
§48-8-104. Effect of fault or misconduct on award of spousal support.
(a)In determining whether spousal support is to be awarded, or in determining the amount of spousal support, if any, to be awarded, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the deterioration of the marital relationship. However, spousal support shall not be awarded when both parties prove grounds for divorce and are denied a divorce, nor shall an award of spousal support under the provisions of this section be ordered which directs the payment of spousal support to a party determined to be at fault, when, as a grounds granting the divorce, such party is determined by the court:
(1) To have committed adultery; or
(2) to have been convicted for the commission of a crime which is a felony, subsequent to the marriage if such conviction has become final; or
(3) To have actually abandoned or deserted his or her spouse for six months.
(b) At any time after the entry of an order pursuant to the provisions of this section, the court may, upon motion of either party, revise or alter the order concerning the maintenance of the parties, or either of them, and make a new order concerning the same, issuing it forthwith, as the altered circumstances or needs of the parties may render necessary to meet the ends of justice.
ARTI CLE 9. CUSTODY OF CHILDREN.
§48-9-605. Parent education and mediation fund.
There is hereby created in the state treasury a special revenue account, designated the "parent education and mediation fund". The moneys of the fund shall be expended by the administrator of the supreme court of appeals for parent education and mediation programs.
ARTICLE 12. MEDICAL SUPPORT.
§48-12-15. Enforcement of medical support.
(a) "National Medical Support Notice: means that written notice which is described in 29 U.S.C. §1169(a)(5)(C) and 42 U.S.C. §666(a)(19).
(b) All child support orders which include a provision for health care coverage of a child shall be enforced through the use of the National Medical Support Notice, as set forth in 43 U.S.C. §666(a)(19) and 29 U.S.C. §1169(a)(5)(Cd) et seq.
(c) Unless alternative coverage is allowed for in any order of the court in any case in which a parent is required under a child support order to provide such health care coverage and the employer of the parent is known to the IV-D agency, the IV-D agency shall use the National Medical Support Notice to transfer notice of the provision for the health care coverage of the child to the employer.
(d) Within twenty business days after the date of the National Medical Support Notice, the employer shall transfer the Notice, excluding the severable employer withholding notice described in section 401(b)(2)(C) of the Child Support Performance and Incentive Act of 1998, to the appropriate plan providing any such health care coverage for which the child is eligible.
(e) In a case in which the parent is a newly hired employee entered in the State Directory of New Hires pursuant to chapter forty-eight-a, article two, section thirty-four of this code, and the case is open with the child support enforcement division, the agency shall provide, where appropriate, the National Medical Support Notice, together with an income withholding notice issued pursuant to chapter forty-eight-a, article five, section three of this code, within two days after the date of the entry of the employee in the directory.
(f) In any case in which the employment of the parent with any employer who has received a National Medical Support Notice is terminated, the employer is required to notify the IV-D agency of the termination.
§48-12-105. Notice to insurer or employer.
The custodian for the child or the IV-D agency in appropriate cases shall send the insurer or the obligated parent's employer the children's address and notice that the custodian will be submitting claims on behalf of the children National Medical Support Notice. Upon receipt of such notice, or an order for insurance coverage under this section, the obligated parent's employer, multiemployer trust or union shall, upon the request of the custodian for the child, release information on the coverage for the children, including the name of the insurer.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-408. Determination of amounts to be withheld.
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 may 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 arrearage is 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) Prior to the first day of January, two thousand one, when 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) Prior to the first day of January, two thousand one, when 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) Beginning the first day of January, two thousand one, when 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 forty 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 fifty percent of the obligor's disposable earnings for that week.
(5) Beginning the first day of January, two thousand one, when a part 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 forty-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 fifty-five percent of the obligor's disposable earnings for that week.
(6) Where the obligor is having amounts withheld for the current month's obligation for any child, then in addition to the percentage limitations set forth in subdivisions (2) and (3) of this subsection, it shall be a further limitation that when the current month's obligation plus arrearages are being withheld from salaries or wages in no case shall the total amounts withheld for the current month's obligation plus arrearage exceed the amounts withheld for the current obligation by an amount greater than twenty-five percent of the current monthly support obligation.
(7) Where the obligor is not having amounts withheld for the current month's obligation for any child, then in addition to the percentage limitations set forth in subdivisions (2) and (3) of this subsection, it shall be a further limitation that the arrearages being withheld from salaries or wages in no case shall exceed the total amount that the obligor would be required to pay as a current monthly obligation pursuant to the child support guidelines and other provisions article thirteen of this chapter for the total number of children for whom the obligor is in arrears.
(7) (8) 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.
(8) (9) The bureau for child support enforcement has the authority to prorate the current support obligation in accordance with the pay cycle of the source of income. This prorated current support obligation shall be known as the "adjusted support obligation." The current support obligation or the adjusted support obligation is the amount, if unpaid, on which interest will be charged.
(9) (10) When an obligor acts so as to purposefully minimize his or her income and to thereby circumvent the provisions of this part 4 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.
ARTICLE 24. ESTABLISHMENT OF PATERNITY.

§48-24-101. Paternity proceedings.

(a) A civil action to establish the paternity of a child and to obtain an order of support for the child may be instituted, by verified complaint, in the circuit court of the county where the child resides: Provided, That if such venue creates a hardship for the parties, or either of them, or if judicial economy requires, the court may transfer the action to the county where either of the parties resides.
(b) A "paternity proceeding" is a summary proceeding, equitable in nature and within the domestic relations jurisdiction of the courts, wherein a circuit court upon the petition of the state or another proper party may intervene to determine and protect the respective personal rights of a child for whom paternity has not been lawfully established, of the mother of the child and of the putative father of the child. The parties to a paternity proceeding are not entitled to a trial by jury.
(c) The sufficiency of the statement of the material allegations in the complaint set forth as grounds for relief and the grant or denial of the relief prayed for in a particular case shall rest in the sound discretion of the court, to be exercised by the court according to the circumstances and exigencies of the case, having due regard for precedent and the provisions of the statutory law of this state.
(d) A decree or order made and entered by a court in a paternity proceeding shall include a determination of the filial relationship, if any, which exists between a child and his or her putative father, and, if such relationship is established, shall resolve dependent claims arising from family rights and obligations attendant to such filial relationship.
(e) A paternity proceeding may be brought by any of the following persons:
(1) An unmarried woman with physical or legal custody of a child to whom she gave birth;
(2) A married woman with physical or legal custody of a child to whom she gave birth, if the complaint alleges that:
(A) The married woman lived separate and apart from her husband preceding the birth of the child;
(B) The married woman did not cohabit with her husband at any time during such separation and that such separation has continued without interruption; and
(C) The respondent, rather than her husband, is the father of the child;
(3) The state of West Virginia, including the bureau for child support enforcement;
(4) Any person who is not the mother of the child, but who has physical or legal custody of the child;
(5) The guardian or committee of the child;
(6) The next friend of the child when the child is a minor;
(7) By the child in his or her own right at any time after the child's eighteenth birthday but prior to the child's twenty-first birthday; or
(8) A man who believes he is the father of a child born out of wedlock, when there has been no prior judicial determination of paternity.
(F) A married woman who brings a paternity proceeding pursuant to subdivision (2), subsection (e) of this section shall cause a copy of the verified complaint to be served on her husband in accordance with rule 4 of the rules of civil procedure.
(f) (g) Blood or tissue samples taken pursuant to the provisions of this article may be ordered to be taken in such locations as may be convenient for the parties so long as the integrity of the chain of custody of the samples can be preserved.
(g) (h) A person who has sexual intercourse in this state submits to the jurisdiction of the courts of this state for a proceeding brought under this article with respect to a child who may have been conceived by that act of intercourse. Service of process may be perfected according to the rules of civil procedure.
(h) (i) When the person against whom the proceeding is brought has failed to plead or otherwise defend the action after proper service has been obtained, judgment by default shall be issued by the court as provided by the rules of civil procedure.
CHAPTER 52. JURIES.

ARTICLE 1. PETIT JURIES.

§52-1-17. Reimbursement of jurors.

(a) A juror shall be paid mileage, at the rate set by the commissioner of finance and administration for state employees, for travel expenses from the juror's residence to the place of holding court and return and shall be reimbursed for other expenses incurred as a result of required attendance at sessions of the court at a rate of between fifteen and forty dollars, set at the discretion of the circuit court or the chief judge thereof, for each day of required attendance. Such reimbursement shall be based on vouchers submitted to the sheriff. Such mileage and reimbursement shall be paid out of the state treasury.
(b) When a jury in any case is placed in the custody of the sheriff, he or she shall provide for and furnish the jury necessary meals and lodging while they are in the sheriff's custody at a reasonable cost to be determined by an order of the court; and the meals and lodging shall be paid for out of the state treasury.
(c) Anytime a panel of prospective jurors has been required to report to court for the selection of a petit jury in any scheduled matter, the court shall, by specific provision in a court order, assess a jury cost. In circuit court cases the jury cost shall be the actual cost of the jurors' service, and in magistrate court cases, the jury cost assessed shall be two hundred dollars. Such costs shall be assessed against the parties as follows:
(1) In every criminal case, against the defendant upon conviction, whether by plea, by bench trial or by jury verdict;
(2) In every civil case, against either party or prorated against both parties, at the court's discretion, if the parties settle the case or trial is to the bench; and
(3) In the discretion of the court, and only when fairness and justice so require, a circuit court or magistrate court may forego assessment of the jury fee, but shall set out the reasons therefor in a written order: Provided, That a waiver of the assessment of a jury fee in a case tried before a jury in magistrate court may only be permitted after the circuit court, or the chief judge thereof, has reviewed the reasons set forth in the order by the magistrate and has approved such waiver.
(d)(1) The circuit or magistrate court clerk shall by the tenth day of the month following the month of collection remit to the sheriff state treasurer for deposit as described in subdivision (2) of this subsection all jury costs collected, and the clerk and the clerk's surety are liable therefor on the clerk's official bond as for other money coming into the clerk's hands by virtue of the clerk's office.
(2) The jury costs described in subdivision (1) of this subsection shall upon receipt by the state treasurer be deposited as follows: (A) One-half shall be deposited into the parent education and mediation fund created in section six hundred five, article eleven, chapter forty-eight of this code; and (B) one-half shall be deposited into the domestic violence legal services fund created in section four-c, article two-c, chapter forty-eight of this code.
(e) The sheriff shall pay into the state treasury all jury costs received from the court clerks, and the sheriff shall be held to account in the sheriff's annual settlement for all such moneys.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for services rendered as such clerk the following fees, and such fees shall be paid in advance by the parties for whom such services are to be rendered:
(1) For instituting any civil action under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals, or any other action, cause, suit or proceeding, seventy-five dollars: Provided, That the fee for instituting an action for divorce shall be one hundred five dollars;
(2) Beginning on and after the first day of July, one thousand nine hundred ninety-nine, for instituting an action for divorce, separate maintenance or annulment, one hundred twenty-five dollars; and
(3) For petitioning for the modification of an order involving child custody, child visitation, child support or spousal support, seventy-five dollars; and
(4) For petitioning for an expedited modification of a child support order, eighty-five dollars.
(b) In addition to the foregoing fees, the following fees shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for use in any other court or otherwise to go out of the office, for each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggestee execution, including copies, postage, registered or certified mail fees and the fee provided by section four, article five-a, chapter thirty-eight of this code, three dollars;
(6) For vacation or modification of a suggestee execution, one dollar;
(7) For docketing and issuing an execution on a transcript of judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of error, appeal or removal to any other court, five dollars;
(9) For postage and express and for sending or receiving decrees, orders or records, by mail or express, three times the amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or defendant, to be paid by the party requesting the same, fifty cents; and
(11) For additional service (plaintiff or appellant) where any case remains on the docket longer than three years, for each additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in any criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five dollars; and
(2) In the case of any felony, sixty-five dollars.
(d) No such clerk shall be required to handle or accept for disbursement any fees, cost or amounts, of any other officer or party not payable into the county treasury, except it be on order of the court or in compliance with the provisions of law governing such fees, costs or accounts.

§59-1-28a. Disposition of filing fees in divorce and other civil actions and fees for services in criminal cases.

(a) Except for those payments to be made from amounts equaling filing fees received for the institution of divorce actions as prescribed in subsection (b) of this section, and except for those payments to be made from amounts equaling filing fees received for the institution of actions for divorce, separate maintenance and annulment as prescribed in subsection (c) of this section, for each civil action instituted under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals, or any other action, cause, suit or proceeding in the circuit court, the clerk of the court shall, at the end of each month, pay into the funds or accounts described in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting such action as follows:
(1) Into the regional jail and correctional facility development fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of sixty dollars; and
(2) Into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
(b) For each divorce action instituted in the circuit court, the clerk of the court shall, at the end of each month, report to the supreme court of appeals, the number of actions filed by persons unable to pay, and pay into the funds or accounts in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting such divorce action as follows:
(1) Into the regional jail and correctional facility development fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of ten dollars;
(2) Into the special revenue account of the state treasury, established pursuant to section twenty-four, article one, chapter forty-eight of this code, an amount of thirty dollars;
(3) Into the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code, an amount of fifty dollars; and
(4) Into the court security fund in the state treasury, established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
(c) This subsection applies to filing fees paid after the thirtieth day of June, one thousand nine hundred ninety-nine. For each action for divorce, separate maintenance or annulment instituted in the circuit court, the clerk of the court shall, at the end of each month, pay into the funds or accounts in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting such divorce action as follows:
(1) Into the regional jail and correctional facility development fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of ten dollars;
(2) Into the special revenue account of the state treasury, established pursuant to section twenty-four, article one, chapter forty-eight of this code, an amount of thirty dollars;
(3) Into the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code, an amount of seventy dollars; and
(4) Into the court security fund in the state treasury, established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
(d) Notwithstanding any provision of subsection (a) or (b) of this section to the contrary, the clerk of the court shall, at the end of each month, pay into the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code an amount equal to the amount of every fee received for petitioning for the modification of an order involving child custody, child visitation, child support or spousal support as determined by subdivision (3), subsection (a), section eleven of this article and for petitioning for an expedited modification of a child support order as determined by subdivision (3), subsection (a), section eleven of this article.
(e) The clerk of the court from which a protective order is issued shall, at the end of each month, pay into the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code an amount equal to every fee received pursuant to the provisions of subsection (k), section six, article two-a, chapter forty-eight of this code.
(f) The clerk of each circuit court shall, at the end of each month, pay into the regional jail and prison development fund in the state treasury an amount equal to forty dollars of every fee for service received in any criminal case against any defendant convicted in such court and shall pay an amount equal to five dollars of every such fee into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code.




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

§48-9-605 and §48-12-115 are new; therefore, strike-throughs and underscoring have been omitted.