Senate Bill No. 504
(By Senators Bowman and Unger)
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[Introduced January 30, 2008; referred to the Committee on Health
and Human Resources; and then to the Committee on the Judiciary.]
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A BILL to
repeal §48-17-101, §48-17-102, §48-17-103, §48-17-104,
§48-17-105, §48-17-106, §48-17-107, §48-17-108 and §48-17-109
of the Code of West Virginia, 1931, as amended; to amend and
reenact §16-5-10 of said code; to amend and reenact §38-3-18
of said code; to amend and reenact §48-1-205, §48-1-225 and
§48-1-230 of said code; to amend and reenact §48-11-103 and
§48-11-105 of said code; to amend said code by adding thereto
a new section, designated §48-13-804; to amend and reenact
§48-14-102, §48-14-106, §48-14-203, §48-14-404, §48-14-407,
§48-14-408, §48-14-414, §48-14-502, §48-14-503, §48-14-701 and
§48-14-801 of said code; to amend said code by adding thereto
a new section, designated §48-14-108; to amend and reenact
§48-15-201 of said code; to amend and reenact §48-18-102,
§48-18-118, §48-18-120, §48-18-126 and §48-18-206 of said
code; to amend said code by adding thereto a new section, designated §48-18-118a; and to amend and reenact §51-2A-15b of
said code, all relating generally to child support
enforcement; clarifying requirements for paternity affidavits;
clarifying the statute of limitations for child support
orders; clarifying findings of fact in court orders when
income is attributed for purposes of setting child support;
clarifying that prescription drugs are included in medical
support; providing that inmate concession accounts are income
for withholding purposes; providing for support to continue
past age eighteen by operation of law; establishing a
procedure for refunding of properly withheld amounts when a
support order is modified; requiring family court judges enter
default orders setting child support; allowing the Bureau for
Child Support Enforcement to bring an action for medical
support; providing refund procedures when a party to a support
order is deceased; clarifying that an affidavit of accrued
support may be filed in the court where the original order was
entered; allowing the collection through income withholding of
court-ordered fees; clarifying that withholding limitations do
not apply to bonuses; providing for remedies against employers
who improperly withhold child support; creating consistency
among civil contempt penalties; authorizing the Bureau for
Child Support Enforcement to collect an additional one hundred
dollars when arrearage triggers are met; eliminating the requirement that the Bureau for Child Support Enforcement
attorney meet with the parties prior to the posting of a bond;
authorizing the Tax Commissioner to deny issuance or
reissuance of a business license; repealing the dormant Child
Support Enforcement Commission; clarifying the duties of the
Bureau for Child Support Enforcement Commissioner with respect
to the child support formula; allowing the Tax Commissioner to
supply names and addresses to the Bureau for Child Support
Enforcement for enforcement of support obligations; allowing
collection of overpayments to support obligees from state tax
refunds; eliminating the requirement that parties receive
annual statements; requiring the Bureau for Child Support
Enforcement to review all public assistance cases every three
years; providing for consistency of service of process; and
making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §48-17-101, §48-17-102, §48-17-103, §48-17-104,
§48-17-105, §48-17-106, §48-17-107, §48-17-108 and §48-17-109 of
the Code of West Virginia, 1931, as amended, be repealed; that
§16-5-10 of said code be amended and reenacted; that §38-3-18 of
said code be amended and reenacted; that §48-1-205, §48-1-225 and
§48-1-230 of said code be amended and reenacted; that §48-11-103
and §48-11-105 of said code be amended and reenacted; that said
code be amended by adding thereto a new section, designated §48-13-804; that §48-14-102, §48-14-106, §48-14-203, §48-14-404,
§48-14-407, §48-14-408, §48-14-414, §48-14-502, §48-14-503,
§48-14-701 and §48-14-801 of said code be amended and reenacted;
that said code be amended by adding thereto a new section,
designated §48-14-108; that §48-15-201 of said code be amended and
reenacted; that §48-18-102, §48-18-118, §48-18-120, §48-18-126 and
§48-18-206 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §48-18-118a;
and that §51-2A-15b of said code be amended and reenacted, all to
read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5. VITAL STATISTICS.
§16-5-10. Birth registration acknowledgment and rescission of
paternity.
(a) A certificate of birth for each live birth which occurs in
this state shall be filed with the section of vital statistics, or
as otherwise directed by the State Registrar, within seven days
after the birth and shall be registered if it has been completed
and filed in accordance with this section.
(b) When a birth occurs in transit to or in an institution,
the person in charge of the institution or his or her authorized
designee shall obtain all data required by the certificate, prepare
the certificate, certify either by signature or by an approved
electronic process that the child was born alive at the place and time and on the date stated, and file the certificate as directed
in subsection (a) of this section. The physician or other person
in attendance, or any person providing prenatal care shall provide
the medical information required by the certificate within
seventy-two hours after the birth.
(c) When a birth occurs other than in transit to or in an
institution, the certificate shall be prepared and filed by one of
the following persons in the indicated order of priority in
accordance with legislative rule:
(1) The physician in attendance at or immediately after the
birth;
(2) Any other person in attendance at or immediately after the
birth;
(3) The father or the mother, or, in the absence of the father
and the inability of the mother, the person in charge of the
premises where the birth occurred; or
(4) Any other person qualified by the department by rule to
establish the facts of birth.
(d) When a birth occurs on a moving conveyance within the
United States and the child is first removed from the conveyance in
this state, the birth shall be registered in this state, and the
place where it is first removed shall be considered the place of
birth. When a birth occurs on a moving conveyance while in
international waters or air space or in a foreign country or its air space and the child is first removed from the conveyance in
this state, the birth shall be registered in this state, but the
certificate shall show the actual place of birth insofar as can be
determined.
(e) For the purposes of birth registration, the woman who
gives birth to the child is presumed to be the mother, unless
otherwise specifically provided by state law or determined by a
court of competent jurisdiction prior to the filing of the
certificate of birth.
(f) If the mother was married at the time of either conception
or birth, or between conception and birth, the name of the most
recent husband shall be entered on the certificate as the father of
the child, unless:
(1) Paternity has been determined otherwise by a court of
competent jurisdiction pursuant to the provisions of article
twenty-four, chapter forty-eight of this code or other applicable
law, in which case the name of the father as determined by the
court shall be entered on the certificate; or
(2) Genetic testing shows that the alleged father is the
biological father of the child pursuant to the following
guidelines:
(A) The tests show that the inherited characteristics
including, but not limited to, blood types, have been determined by
appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under
the laws of this state, or any other state, and an expert qualified
as an examiner of genetic markers has analyzed, interpreted and
reported on the results; and
(B) The blood or tissue or other genetic test results show a
statistical probability of paternity of more than ninety-eight
percent; or
(3) The mother, her husband, and an alleged father acknowledge
that the husband is not the biological father and that the alleged
father is the true biological father:
Provided, That the
conditions set forth in paragraphs (A) through (D) are met:
(A) The mother executes an affidavit of nonpaternity attesting
that her husband is not the biological father of the child and that
another man is the biological father; and
(B) The man named as the alleged biological father executes an
affidavit of paternity attesting that he is the biological father
and genetic tests, as required by section one-hundred three,
article twenty four, chapter forty-eight of this code, showing the
alleged biological father is the actual biological father are
attached to the affidavit; and
(C) The husband executes an affidavit of nonpaternity
attesting that he is not the biological father; and
(D) Affidavits executed pursuant to the provisions of this
subdivision may be joint or individual or a combination thereof, and each signature shall be individually notarized. If one of the
parties is an unemancipated minor, his or her parent or legal
guardian must also sign the respective affidavit.
(4) If the affidavits are executed as specified in subdivision
(3) of this section, or genetic tests as specified in subdivision
(2) of this section verify that the alleged father is the
biological father, the alleged father shall be shown as the father
on the certificate of live birth. Paternity established pursuant to
subdivision (2) or (3) of this section establishes the father for
all legal purposes including, but not limited to, the establishment
and enforcement of child support orders, and may be rescinded only
by court order upon a showing of fraud, duress or material mistake
of fact.
(5) Paternity may be established pursuant to subdivision (2)
or (3) of this section only when the husband's name does not appear
as the father of a child on a registered and filed certificate of
live birth and the affidavits or genetic tests are completed and
submitted to the section of vital statistics within one year of the
date of birth of the child.
(g) If the mother was not married at the time of either
conception or birth, or between conception and birth, the name of
the father shall not be entered on the certificate of birth without
an affidavit of paternity signed by the mother and the person to be
named as the father. The affidavit may be joint or individual and each signature shall be individually notarized.
(h) A notarized affidavit of paternity, signed by the mother
and the man to be named as the father, acknowledging that the man
is the father of the child, legally establishes the man as the
father of the child for all purposes, and child support may be
established pursuant to the provisions of chapter forty-eight of
this code.
(1) The notarized affidavit of paternity shall include filing
instructions, the parties' social security number and addresses and
a statement that parties were given notice of the alternatives to,
the legal consequences of, and the rights and obligations of
acknowledging paternity, including, but not limited to, the duty to
support a child. If either of the parents is a minor, the
statement shall include an explanation of any rights that may be
afforded due to the minority status.
(2) The failure or refusal to include all information required
by subdivision (1) of this subsection shall not affect the validity
of the affidavit of paternity, in the absence of a finding by a
court of competent jurisdiction that it was obtained by fraud,
duress or material mistake of fact, as provided in subdivision (4)
of this subsection.
(3) The original notarized affidavit of paternity shall be
filed with the State Registrar. If a certificate of birth for the
child has been previously issued which is incorrect or incomplete, a new certificate of birth will be created and placed on file. The
new certificate of birth will not be marked "Amended".
(4) Upon receipt of any notarized affidavit of paternity
executed pursuant to this section, the State Registrar shall
forward a copy to the Bureau for Child Support Enforcement.
(5) An acknowledgment executed under the provisions of this
subsection may be rescinded as follows:
(A) The parent wishing to rescind the acknowledgment shall
file with the clerk of the circuit court of the county in which the
child resides a verified complaint stating the name of the child,
the name of the other parent, the date of the birth of the child,
the date of the signing of the affidavit of paternity, and a
statement that he or she wishes to rescind the acknowledgment of
the paternity. If the complaint is filed more than sixty days from
the date of execution of the affidavit of paternity or the date of
an administrative or judicial proceeding relating to the child in
which the signatory of the affidavit of paternity is a party, the
complaint shall include specific allegations concerning the
elements of fraud, duress or material mistake of fact.
(B) The complaint shall be served upon the other parent as
provided in Rule 4 of the West Virginia Rules of Civil Procedure.
(C) The family court judge shall hold a hearing within sixty
days of the service of process upon the other parent.
(D) If the complaint was filed within sixty days of the date the affidavit of paternity was executed, the court shall order the
acknowledgment to be rescinded without any requirement of a showing
of fraud, duress, or material mistake of fact.
(E) If the complaint was filed more than sixty days from the
date of execution of the affidavit of paternity or the date of an
administrative or judicial proceeding relating to the child in
which the signatory of the affidavit of paternity is a party, the
court may set aside the acknowledgment only upon a finding, by
clear and convincing evidence, that the affidavit of paternity was
executed under circumstances of fraud, duress or material mistake
of fact.
(F) The circuit clerk shall forward a copy of any order
entered pursuant to this proceeding to the State Registrar by
certified mail. The order shall state all changes to be made, if
any, to the certificate of birth. The certificate of birth may not
be marked "Amended."
(i) In any case in which paternity of a child is determined by
a court of competent jurisdiction pursuant to the provisions of
article twenty-four, chapter forty-eight of this code or other
applicable law, the name of the father and surname of the child
shall be entered on the certificate of birth in accordance with the
finding and order of the court.
(j) If the father is not named on the certificate of birth, no
other information about the father may be entered on the certificate.
(k) In order to permit the filing of the certificate of birth
within the seven days prescribed in subsection (a) of this section,
one of the parents of the child must verify the accuracy of the
personal data to be entered on the certificate. Certificates of
birth filed after seven days, but within one year from the date of
birth, will be registered on the standard form of the certificate
of birth and will not be marked "Delayed." The State Registrar may
require additional evidence in support of the facts of birth for
certificates filed after seven days from the date of birth.
(l) In addition to the personal data furnished for the
certificate of birth issued for a live birth in accordance with the
provisions of this section, a person whose name is to appear on the
certificate of birth as a parent shall contemporaneously furnish to
the person preparing and filing the certificate of birth the social
security number or numbers issued to the parent. A record of the
social security number or numbers shall be filed with the local
registrar of the district in which the birth occurs within seven
days after the birth, and the local registrar shall transmit the
number or numbers to the State Registrar in the same manner as
other personal data is transmitted to the State Registrar.
(m) The local registrar shall transmit by mail or an approved
electronic process each month to the county clerk of each county
the copies of the certificates of all births occurring in the county or the data extracted therefrom, from which copies the clerk
shall compile records of the births and shall create an index to
the birth records that shall be a matter of public record. The
State Registrar shall prescribe the form of the index of births.
CHAPTER 38. LIENS.
ARTICLE 38. JUDGMENT LIENS.
§38-3-18. Limitations on enforcement of judgments.
(a) On a judgment, execution
or an income withholding as
provided in article fourteen, chapter forty-eight of this code may
be issued within ten years after the date thereof. Where execution
or an income withholding issues within ten years as aforesaid,
other executions
or income withholdings may be issued on such
judgment within ten years from the return day of the last execution
or date of last income withholding issued thereon, on which there
is no return by an officer,
or which has been returned unsatisfied
or on which no payment has been withheld.
(b) An action, suit or scire facias may be brought upon a
judgment where there has been a change of parties by death or
otherwise at any time within ten years next after the date of the
judgment; or within ten years from the return day of the last
execution
or income withholding issued thereon on which there is no
return by an officer or which has been returned unsatisfied. But
if such action, suit or scire facias be against the personal
representative of a decedent, it shall be brought within five years from the qualification of such representative.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-205. Attributed income defined.
(a) "Attributed income" means income not actually earned by a
parent but which may be attributed to the parent because he or she
is unemployed, is not working full time, or is working below
full-earning capacity or has nonperforming or underperforming
assets. Income may be attributed to a parent if the court
evaluates the parent's earning capacity in the local economy
(giving consideration to relevant evidence that pertains to the
parent's work history, qualifications, education and physical or
mental condition) and determines that the parent is unemployed, is
not working full time, or is working below full-earning capacity.
Income may also be attributed to a parent if the court finds that
the obligor has nonperforming or underperforming assets.
(b) If an obligor: (1) Voluntarily leaves employment or
voluntarily alters his or her pattern of employment so as to be
unemployed, underemployed or employed below full-earning capacity;
(2) is able to work and is available for full-time work for which
he or she is fitted by prior training or experience; and (3) is not
seeking employment in the manner that a reasonably prudent person
in his or her circumstances would do, then an alternative method
for the court to determine gross income is to attribute to the person an earning capacity based on his or her previous income. If
the obligor's work history, qualifications, education or physical
or mental condition cannot be determined, or if there is an
inadequate record of the obligor's previous income, the court may,
as a minimum, base attributed income on full-time employment (at
forty hours per week) at the federal minimum wage in effect at the
time the support obligation is established.
In order for the court
to consider attribution of income, it is not necessary for the
court to find that the obligor's termination or alteration of
employment was for the purpose of evading a support obligation.
(c) Income shall not be attributed to an obligor who is
unemployed or underemployed or is otherwise working below
full-earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to
whom
both of the parties owe a
joint legal responsibility for
support and such children are of preschool age or are handicapped
or otherwise in a situation requiring particular care by the
parent;
(2) The parent is pursing a plan of economic self-improvement
which will result, within a reasonable time, in an economic benefit
to the children to whom the support obligation is owed, including,
but not limited to, self-employment or education:
Provided, That
if the parent is involved in an educational program, the court
shall ascertain that the person is making substantial progress toward completion of the program;
(3) The parent is, for valid medical reasons, earning an
income in an amount less than previously earned; or
(4) The court makes a written finding that other circumstances
exist which would make the attribution of income inequitable:
Provided, That in such case, the court may decrease the amount of
attributed income to an extent required to remove such inequity.
(d) The court may attribute income to a parent's nonperforming
or underperforming assets, other than the parent's primary
residence. Assets may be considered to be nonperforming or
underperforming to the extent that they do not produce income at a
rate equivalent to the current six-month certificate of deposit
rate or such other rate that the court determines is reasonable.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-225. Extraordinary medical expenses defined.
"Extraordinary medical expenses" means uninsured medical
expenses in excess of two hundred fifty dollars per year per child
which are recurring and can reasonably be predicted by the court at
the time of establishment or modification of a child support order.
Such expenses shall include, but not be limited to, insurance
copayments and deductibles, reasonable costs for necessary
orthodontia, dental treatment, asthma treatments, physical therapy,
prescription pharmaceuticals, vision therapy and eye care and any uninsured chronic health problem.
§48-1-230. Income defined.
"Income" includes, but is not limited to, the following:
(1) Commissions, earnings, salaries, wages, and other income
due or to be due in the future to an individual from his or her
employer and successor employers;
(2) Any payment due or to be due in the future to an
individual from a profit-sharing plan, a pension plan, an insurance
contract, an annuity, social security, unemployment compensation,
supplemental employment benefits, workers' compensation benefits,
state lottery winnings and prizes, and overtime pay;
(3) Any amount of money which is owing to an individual as a
debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency, this
state or any political subdivision of this state, any other state
or a political subdivision of another state or any other legal
entity which is indebted to the obligor;
(4) Any amount of money which is held by the Regional Jail
Authority for an inmate in an inmate's concession account.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-103. Child support beyond age eighteen.
(a)
Upon a specific finding of good cause shown and upon
findings of fact and conclusions of law in support thereof, a An
order for child support
may shall provide that payments of such support continue beyond the date when the child reaches the age of
eighteen, so long as the child is unmarried and residing with a
parent, guardian or custodian and is enrolled as a full-time
student in a secondary educational or vocational program and making
substantial progress towards a diploma
: Provided, That such
payments may not extend past the date that the child reaches the
age of twenty.
(b) Nothing herein shall be construed to abrogate or modify
existing case law regarding the eligibility of handicapped or
disabled children to receive child support beyond the age of
eighteen.
(c) The reenactment of this section during the regular session
of the Legislature in the year one thousand nine hundred
ninety-four shall not, by operation of law, have any effect upon or
vacate any order or portion thereof entered under the prior
enactment of this section which awarded educational and related
expenses for an adult child accepted or enrolled and making
satisfactory progress in an educational program at a certified or
accredited college. Any such order or portion thereof shall
continue in full force and effect until the court, upon motion of
a party, modifies or vacates the order upon a finding that:
(1) The facts and circumstances which supported the entry of
the original order have changed, in which case the order may be
modified;
(2) The facts and circumstances which supported the entry of
the original order no longer exist because the child has not been
accepted or is not enrolled in and making satisfactory progress in
an educational program at a certified or accredited college, or the
parent ordered to pay such educational and related expenses is no
longer able to make such payments, in which case the order shall be
vacated;
(3) The child, at the time the order was entered, was under
the age of sixteen years, in which case the order shall be vacated;
(4) The amount ordered to be paid was determined by an
application of child support guidelines in accordance with the
provisions of article 13-101, et seq., of this chapter, or
legislative rules promulgated thereunder, in which case the order
may be modified or vacated; or (5) The order was entered after the
fourteenth day of March, one thousand nine hundred ninety-four, in
which case the order shall be vacated.
§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.
(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 article
13-101, et seq., of this chapter unless the court disregards the
guidelines or adjusts the award as provided
for in section 13-702.
(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 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.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48-13-804. Default orders.
(a) In any proceeding in which the amount of support is to be
established, if the party has been served with proper pleadings
and has been notified of the date, time and place of a hearing
before a family court judge and does not enter an appearance or
file a response, the family court judge shall prepare a default
order for entry, which order fixes support in an amount in
accordance with the child support guidelines contained in article
thirteen of this chapter.
(1) When applying the child support guidelines, the court may
accept financial information from the other party as accurate,
pursuant to rule 13(b) of the rules of practice and procedure for
family court; or
(2) If financial information is not available, the court may
attribute income to the party based upon either:
(i) The party's work history;
(ii) Minimum wage, if appropriate; or
(iii) At a minimum, enter a child support order in a nominal
amount unless, in the court's discretion, a zero support order
should be entered.
(b) All orders shall provide for automatic withholding from
income of the obligor pursuant to part four of article fourteen of
this chapter.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-102. Who may bring action for child support order.
An action may be brought under the provisions of section
14-101 by:
(1)A custodial parent of a child, when the divorce order or
other order which granted custody did not make provision for the
support of the child by the obligor;
(2)A primary caretaker of a child;
(3)A guardian of the property of a child or the committee
for a child;
or
(4)The Bureau for Child Support Enforcement, on behalf of
the state, when the Department of Health and Human Resources is
providing assistance on behalf of the child
or the person to whom
a duty of support is owed, in the form of temporary assistance to
needy families
or medical assistance, and any right to support has
been assigned to the department or in any other case wherein a
party has applied for child support enforcement services from the
Bureau for Child Support enforcement;
or
§48-14-106.Modification of support order.
(a)At any time after the entry of an order for support, the
court may, upon the verified petition of an obligee or the obligor,
revise or alter such order and make a new order as the altered
circumstances or needs of a child, an obligee or the obligor may
render necessary to meet the ends of justice.
(b) The Supreme Court of Appeals shall make available to the
family 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 paid 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 such forms
available to persons desiring to petition the court pro se for a
modification of the support award.
(c) 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 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.
§48-14-108. Deceased parties in support cases.
In the event of the death of any party to a domestic relations
support action, support payments or a refund of support payments
due to the party by the obligee, obligor, or the Bureau for Child
Support Enforcement, not in excess of one thousand dollars, may,
upon proper demand, be paid, in the absence of actual notice of the
pendency of probate proceedings, without requiring letters
testamentary or of administration in the following order of
preference to decedent's: (1) Surviving spouse; (2) children
eighteen years of age and over in equal shares; (3) father and
mother, or survivor;
and (4) sisters and brothers. Payments under
this section shall release and discharge the obligee, obligor or
the Bureau for Child Support Enforcement to the amount of such
payment.
§
48-14-203. Affidavit of accrued support.
(a) The affidavit of accrued support
may as provided in
section four, article three, chapter thirty-eight of this code may
be filed with the clerk of the circuit court in the county in which
the obligee or the obligor resides,
in the county where the order
originated, or where the obligor's source of income is located.
The affidavit may be filed when a payment required by such
order has been delinquent, in whole or in part, for a period of
fourteen days.
(c) The affidavit shall:
(1) Identify the obligee and obligor by name and address, and
shall list the
last four digits of the obligor's social security
number or numbers, if known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) State the total amount of accrued support which has not
been paid by the obligor;
and
(4) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent
payment; and
(5) (4) State the name and address of the obligor's source of
income, if known.
§48-14-404. Enforcement of withholding by Bureau for Child
Support Enforcement.
The withholding from an obligor's income of amounts payable as
spousal or child support
or fees awarded by a court of competent
jurisdiction to the state in connection with the establishment of
paternity and support or the enforcement of a support order shall
be enforced by the Bureau for Child Support Enforcement in
accordance with the provisions of this part 4.
If an overpayment
of spousal or child support occurs and an arrearage exists, the
Bureau for Child Support shall first offset the overpayment of
spousal or child support against the arrearage. If no arrearage exists with which to offset the overpayment or the arrearage is not
sufficient to offset the overpayment and the obligee does not enter
into a repayment agreement with the Bureau for Child Support
Enforcement, the Bureau for Child Support Enforcement may issue an
income withholding to the obligee's employer to recoup the amount
of the overpayment. The income withholding shall be in the same
manner as provided in article fourteen of this chapter: Provided,
That in no circumstances may the amount withheld exceed thirty-five
percent of the disposable earnings for the period, regardless of
the length of time that the overpayment has been owed.
§48-14-407. Contents of notice to source of income.
(a) 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 Bureau for Child Support Enforcement for
distribution. 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 and no source of income
may require additional information or documentation. 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 shall send the amount to be
withheld from the obligor's income to the Bureau for Child Support
Enforcement, along with such identifying information as may be
required by the bureau, 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 Bureau for Child Support Enforcement or until
the source of income notifies the Bureau for Child Support
Enforcement of a termination of the obligor's employment in
accordance with the provisions of section four hundred twelve of
this article;`
(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 when 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 part
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 when an employer has more than one employee who is an
obligor who is subject to wage withholding from income under the
provisions of this code, the employer may combine all withheld
payments to the Bureau for Child Support Enforcement when the
employer properly identifies each payment wit the information
listed in this part. 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 identify with the information required by
this part and is therefore not received by the obligee;
(9) That the source of income shall 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 shall notify the Bureau for
Child Support Enforcement promptly when the obligor terminates his
or her employment or otherwise ceases receiving income from the source of income and shall provide the obligor's last known address
and the name and address of the obligor's new source of income, if
known.
(b) When the court reduces an order of support,
The commission
shall, by administrative rule, establish procedures for promptly
refunding to obligors amounts which have been improperly withheld
under the provisions of this part. the Bureau for Child Support
Enforcement is not liable for refunding amounts which have been
withheld pursuant to a court order which was valid at the time that
the bureau received the funds unless the funds were kept by the
state. The obligee or obligor who received the benefit of the
withheld amounts shall be liable for promptly refunding any amounts
which would constitute an overpayment of the support obligation.
§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) 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) 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) 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) 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.
(10) For the purpose of securing overdue support, this section
does not apply to earnings denominated as bonuses. When an
employer pays a bonus to an employee and that employee is subject
to a support order, the Bureau for Child Support Enforcement may
withhold one hundred percent of the bonus to satisfy a support
arrearage.
§48-14-414. Sending amounts withheld to
the Bureau for Child
Support Enforcement; notice.
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 section
14-407:
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.
The Bureau for Child Support
Enforcement may assess a civil penalty of no more than five hundred
dollars per occurrence for the failure of any person, corporation,
financial institution, labor organization or state agency to comply
with requirements of this section. The Bureau for Child Support Enforcement may file an action with the circuit court to enforce
the assessed penalty. The court has the authority to award the
bureau a judgment for the amount of the civil penalty or such other
reasonable amount as the court shall deem appropriate.
§48-14-502. Willful failure or refusal to comply with order to
pay support.
If the court finds that the obligor willfully failed or
refused to comply with an order requiring the payment of support,
the court shall find the obligor in contempt and may do one or more
of the following:
(1) Require additional terms and conditions consistent with
the court's support order.
(2) After notice to both parties and a hearing, if requested
by a party, on any proposed modification of the order, modify the
order in the same manner and under the same requirements as an
order requiring the payment of support may be modified under the
provisions of part 5-701, et seq. A modification sought by an
obligor, if otherwise justified, shall not be denied solely because
the obligor is found to be in contempt.
(3) Order that all accrued support and interest thereon be
paid under such terms and conditions as the court, in its
discretion, may deem proper.
(4) Order the contemnor to pay support in accordance with a
plan approved by the Bureau for Child Support Enforcement or to participate in such work activities as the court deems appropriate.
(5) If appropriate under the provisions of section 1-304
.
(A) Commit the contemnor to the
county or regional jail; or
(B) Commit the contemnor to the
county or regional jail with
the privilege of leaving the jail, during such hours as the court
determines and under such supervision as the court considers
necessary, for the purpose of allowing the contemnor to go to and
return from his or her place of employment.
§48-14-503. Limitation on length of commitment.
(a) A commitment under subdivision (5) of section 14-502 shall
not exceed forty-five days for the first adjudication of contempt
or ninety days for any subsequent adjudication of contempt confine
the contemnor to jail for a period not to exceed six months or
until such time as the contemnor has purged himself or herself,
whichever shall occur first.
(b) An obligor committed under subdivision (5) of
section
14-502 shall be released
by court order if the court has reasonable
cause to believe that the obligor will comply with the court's
order.
§48-14-701. Posting of bonds or giving security to guarantee
payment of overdue support.
(a) An obligor with a pattern of overdue support may be
required by order of the court to post bond, give security or some
other guarantee to secure payment of overdue support. The guarantee may include an order requiring that stocks, bonds or
other assets of the obligor be held in escrow by the court until
the obligor pays the support.
(b) No less than fifteen days before such an order may be
entered, the Bureau for Child Support enforcement attorney shall
cause the mailing of a notice by first class mail to the obligor
informing the obligor of the impending action, his or her right to
contest it, and setting forth a date, time and place for a meeting
with the Bureau for Child Support enforcement attorney and the
date, time and place of a hearing before the family court if the
impending action is contested.
§48-14-801. When monthly payments may be increased to satisfy
overdue support.
(a) For the purpose of securing overdue support, the Bureau
for Child Support Enforcement has the authority to increase the
monthly support payments of an obligor by as much as one hundred
dollars per month to satisfy the arrearage when:
(1) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for six months if the order requires support to be paid in monthly
installments; or
(2) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for twenty-seven weeks if the order requires support to be paid in weekly or biweekly installments.
(b) For the purpose of securing overdue support, the Bureau
for Child Support Enforcement has the authority to increase the
monthly support payments of an obligor by as much as two hundred
dollars per month to satisfy the arrearage when:
(1) An obligor's gross income equals or exceeds sixty-five
thousand dollars; and,
(2) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for twelve months if the order requires support to be paid in
monthly installments; or
(3) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for fifty-four weeks if the order requires support to be paid in
weekly or biweekly installments.
(b) (c) An increase in monthly support under this section will
be in addition to any amounts withheld from income pursuant to of
this article.
(c) (d) This increase in monthly support may be enforced
through the withholding process.
ARTICLE 15. Enforcement of support order through action against
license.
PART 2. ACTION AGAINST LICENSE.
§
48-15-201. Licenses subject to action.
The following licenses are subject to an action against a
license as provided for in this article:
(1) A business registration certificate issued under chapter
eleven, article twelve of this code, authorizing a person to
transact business in the State of West Virginia.
(1) (2) A permit or license issued under chapter seventeen-b
of this code, authorizing a person to drive a motor vehicle;
(2) (3) A commercial driver's license, issued under chapter
seventeen-e of this code, authorizing a person to drive a class of
commercial vehicle;
(3) (4) A permit, license or stamp issued under article two or
two-b, chapter twenty of this code, regulating a person's
activities for wildlife management purposes, authorizing a person
to serve as an outfitter or guide, or authorizing a person to hunt
or fish;
(4) (5) A license or registration issued under chapter thirty
of this code, authorizing a person to practice or engage in a
profession or occupation;
(5) (6) A license issued under article twelve, chapter
forty-seven of this code, authorizing a person to transact business
as a real estate broker or real estate salesperson;
(6) (7) A license or certification issued under article
fourteen, chapter thirty-seven of this code, authorizing a person
to transact business as a real estate appraiser;
(7) (8) A license issued under article twelve, chapter
thirty-three of this code, authorizing a person to transact
insurance business as an agent, broker or solicitor;
(8) (9) A registration made under article two, chapter
thirty-two of this code, authorizing a person to transact
securities business as a broker-dealer, agent or investment
advisor;
(9) (10) A license issued under article twenty-two, chapter
twenty-nine of this code, authorizing a person to transact business
as a lottery sales agent;
(10) (11) A license issued under articles thirty-two or
thirty-our, chapter sixteen of this code, authorizing persons to
pursue a trade or vocation in asbestos abatement or radon
mitigation;
(11) (12) A license issued under article eleven, chapter
twenty-one of this code, authorizing a person to act as a
contractor;
(12) (13) A license issued under article two-c, chapter
nineteen of this code, authorizing a person to act as an
auctioneer; and
(13) (14) A license, permit or certificate issued under
chapter nineteen of this code, authorizing a person to sell, market
or distribute agricultural products or livestock.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-102. Appointment of commissioner; duties; compensation.
(a) There is hereby created the position of commissioner.
whose duties include the ministerial management and administration
of the office of the support enforcement commission. The
commissioner shall:
(1) Be appointed by the secretary;
(2) Serve at the will and pleasure of the secretary;
(3) Serve on a full-time basis and shall not engage in any
other profession or occupation, including the holding of a
political office in the state either by election or appointment,
while serving as commissioner;
(4) Be a lawyer licensed by, and in good standing with, the
West Virginia State Bar; and
(5) Have responsible administrative experience, possess
management skills, and have knowledge of the law as it relates to
domestic relations and the establishment and enforcement of support
obligations.
Before entering upon the discharge of the duties as
commissioner, the commissioner shall take and subscribe to the oath
of office prescribed in section five, Article IV of the
Constitution of West Virginia.
(b) The duties of the commissioner shall include the
following:
(1) To direct and administer the daily operations of the commission;
(2) (1) To administer the Child Support Enforcement Fund
created pursuant to section 18-107 of this article;
(3) To keep the records and papers of the commission,
including a record of each proceeding;
(4) To prepare, issue and submit reports of the commission;
and
(5) To perform any other duty that the commission directs.
(2) To conduct the federally required review required by 45
C.F.R. 302.56(C)(3) of the child support formula every four years
and make a report to the Joint Committee on Government and Finance
of the findings.
(c) All payments to the commissioner as compensation shall be
made from the Child Support Enforcement Fund. The commissioner is
entitled to:
(1) A reasonable and competitive compensation package to be
established by the secretary; and
(2) Reimbursement for expenses under the standard state travel
regulations.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary
for the Bureau for Child Support Enforcement to obtain payment of
past due support from state income tax refunds from overpayment
made to the Tax Commissioner pursuant to the provisions of article twenty-one, chapter eleven, of this code.
(b) The
Bureau for Child Support Enforcement Commissioner
shall establish procedures necessary
for the Bureau for Child
Support Enforcement to enforce a support order through a notice to
the Tax Commissioner which will cause any refund of state income
tax which would otherwise by payable to an obligor to be reduced by
the amount of overdue support owed by such obligor.
(1)
Such legislative rule The procedures shall, at a minimum,
prescribe:
(A) The time or times at which the Bureau for Child Support
Enforcement shall serve on the obligor or submit to the Tax
Commissioner notices of past due support;
(B) The manner in which such notices shall be served on the
obligor or submitted to the Tax Commissioner;
(C) The necessary information which shall be contained in or
accompany the notices;
(D) The amount of the fee to be paid to the Tax commissioner
for the full cost of applying the procedure whereby past due
support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support
Enforcement may deduct a twenty-five dollar fee from the obligor's
state income tax refund. This procedure may not require a
deduction from the state income tax refund of an applicant who is
a recipient of assistance from the Bureau for Children and Families in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be
pursued unless the Bureau for Child Support Enforcement has
examined the obligor's pattern of payment of support and the
obligee's likelihood of successfully pursuing other enforcement
actions, and has determined that the amount of past due support
which will be owed, at the time the withholding is to be made, will
be one hundred dollars or more. In determining whether the amount
of past due support will be one hundred dollars or more, the Bureau
for Child Support Enforcement shall consider the amount of all
unpaid past due support, including that which may have accrued
prior to the time that the Bureau for Child Support Enforcement
first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support
Enforcement shall enter into agreements with the Secretary of the
Treasury and the Tax Commissioner, and other appropriate
governmental agencies, to secure information relating to the social
security number or numbers and the address or addresses of any
obligor,
and the name or names and address or addresses of any
employer or employers, in order to provide notice between such
agencies to aid the Bureau for Child Support Enforcement in
requesting state income tax deductions and to aid the Tax
Commissioner in enforcing such deductions. In each such case, the
Tax Commissioner, in processing the state income tax deduction, shall notify the Bureau for Child Support Enforcement of the
obligor's home address and social security number or numbers. The
Bureau for Child Support Enforcement shall provide this information
to any other state involved in processing the support order;
(d) For the purposes of this section, "past due support" means
the amount of unpaid past due support owed under the terms of a
support order to or on behalf of a child, or to or on behalf of a
minor child and the parent with whom the child is living;
regardless of whether the amount has been reduced to a judgment or
not.
(e) The Bureau for Child Support Enforcement may, under the
provisions of this section, enforce the collection of past due
support on behalf of a child who has reached the age of majority.
(f) The procedure shall, at a minimum, provide that prior to
notifying the Tax Commissioner of past due support, a notice to the
obligor as prescribed under subsection (a) of this section shall:
(1) Notify the obligor that a withholding will be made from
any refund otherwise payable to such obligor;
(2) Instruct the obligor of the steps which may be taken to
contest the determination of the Bureau for Child Support
Enforcement that past due support is owed or the amount of the past
due support; and
(3) Provide information with respect to the procedures to be
followed, in the case of a joint return, to protect the share of the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by
the Tax Commissioner that the refund from which withholding is
proposed to be made is based upon a joint return, and if the past
due support which is involved has not been assigned to the
Department of Health and Human Resources, the Bureau for Child
Support Enforcement may delay distribution of the amount withheld
until such time as the Tax Commissioner notifies the Bureau for
Child Support Enforcement that the other person filing the joint
return has received his or her proper share of the refund, but such
delay shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax
Commissioner under the provisions of this section and paid to the
Bureau for Child Support Enforcement, if the Bureau for Child
Support Enforcement subsequently determines that the amount
certified as past due was in excess of the amount actually owed at
the time the amount withheld is to be distributed, the agency shall
pay the excess amount withheld to the obligor thought to have owed
the past due support or, in the case of amounts withheld on the
basis of a joint return, jointly to the parties filing the return.
(i) The amounts received by the Bureau for Child Support
Enforcement shall be distributed in accordance with the provisions
for distribution set forth in 42 U.S.C. § 657.
§48-18-118a. Obtaining refunds of overpaid support from state income tax refunds.
(a) Definitions.
(1) "Obligee" means the same as that term is defined in
section two-hundred thirty-four, article one of this chapter.
(2) "Obligor" means the same as that term is defined in
section two hundred thirty-five, article one of this chapter.
(3) "Overpaid support" means the same as that term is defined
in section two hundred thirty-five, article one of this chapter.
(b) The Tax Commissioner shall cooperate with the Commissioner
of the Bureau for Child Support Enforcement in establishing and
implementing procedures for the collection of overpaid child
support from state income tax refunds that are payable to obligees.
The Tax Commissioner shall collect the refunds and send the amounts
to the Bureau for Child Support Enforcement for distribution to
obligors who made the overpayment.
§48-18-120. Statements of account.
The Bureau for Child Support enforcement shall provide annual
statements of their account to each obligor and obligee without
charge. Additional statements of account shall be provided at a
fee of five dollars, unless such fee is waived pursuant to a rule
promulgated by the commission. Statements provided under this
subsection are in addition to statements provided for judicial
hearings. The commissioner shall establish procedures whereby an
obligor or obligee can contest or correct a statement of account.
§48-18-126. Review and adjustment of child support orders.
(a) Either parent
or, if there has been an assignment of
support to the Department of Health and Human Resources, Bureau for
Child Support enforcement shall have the right to request an
administrative review of the child support award in the following
circumstances:
(1) Where the request for review is received thirty-six months
or more after the date of the entry of the order or from the
completion of the previous administrative review, whichever is
later, the Bureau for Child Support Enforcement shall conduct a
review to determine whether the amount of the child support award
in such order varies from the amount of child support that would be
awarded at the time of the review pursuant to the guidelines for
child support awards contained in article 13-101,
et seq. If the
amount of the child support award under the existing order differs
by ten percent or more from the amount that would be awarded in
accordance with the child support guidelines, the Bureau for Child
Support Enforcement shall file with the family court a motion for
modification of the child support order. If the amount of the child
support award under the existing order differs by less than ten
percent from the amount that would be awarded in accordance with
the child support guidelines, the Bureau for Child Support
Enforcement may, if it determines that such action is in the best
interest of the child or otherwise appropriate, file with the family court a motion for modification of the child support order.
(2) Where the request for review of a child support award is
received less than thirty-six months after the date of the entry of
the order or from the completion of the previous administrative
review, the Bureau for Child Support Enforcement shall undertake a
review of the case only where it is alleged that there has been a
substantial change in circumstances. If the Bureau for Child
Support Enforcement determines that there has been a substantial
change in circumstances and if it is in the best interests of the
child, the bureau shall file with the family court a motion for
modification of the child support order in accordance with the
guidelines for child support awards contained in article 13-101,
et
seq., of this chapter.
(b) If there has been an assignment of support to the
Department of Health and Human Resources, the Bureau for Child
Support Enforcement shall conduct an administrative review of the
child support award every three years.
(b) (c) The Bureau for Child Support Enforcement shall notify
both parents at least once every three years of their right to
request a review of a child support order. The notice may be
included in any order granting or modifying a child support award.
The Bureau for Child Support Enforcement shall give each parent at
least thirty days' notice before commencing any review and shall
further notify each parent, upon completion of a review, of the results of the review, whether of a proposal to move for
modification or of a proposal that there should be no change.
(c) (d) When the result of the review is a proposal to move
for modification of the child support order, each parent shall be
given thirty days' notice of the hearing on the motion, the notice
to be directed to the last known address of each party by
first-class mail. When the result of the review is a proposal that
there be no change, any parent disagreeing with that proposal may,
within thirty days of the notice of the results of the review, file
with the court a motion for modification setting forth in full the
grounds therefor.
(d) (e) For the purposes of this section, a "substantial
change in circumstances" includes, but is not limited to, a changed
financial condition, a temporary or permanent change in physical
custody of the child which the court has not ordered, increased
need of the child or other financial conditions. "Changed financial
conditions" means increases or decreases in the resources available
to either party from any source. Changed financial conditions
includes, but is not limited to, the application for or receipt of
any form of public assistance payments, unemployment compensation
and workers' compensation or a fifteen percent or more variance
from the amount of the existing order and the amount of child
support that would be awarded according to the child support
guidelines.
§48-18-206. Family court action on petition and proposed order
prepared by Bureau for Child Support Enforcement.
(a) Upon receipt of petition for modification and proposed
order prepared by the Bureau for Child Support Enforcement in
accordance with the provisions of this article, the circuit clerk
shall serve a copy of the petition and the proposed order upon all
parties to the proceeding by personal service or by United States
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, and direct the parties to file
any objections to the proposed modified child support order within
twenty days of the date of receiving such notice.
(b) Within five days of the filing of a petition for
modification and proposed order, the circuit clerk shall notify the
family court.
(c) If no party files timely objection to the proposed order
or timely requests a hearing on the petition after receiving such
notice, then the family court may proceed to review the petition
and proposed order sua sponte, and may issue the proposed order.
If the family court receives no objection, but the family court
concludes that the proposed order should not be entered or should
be changed, it shall set the matter for hearing.
(d) If the family court receives an objection to the petition
or proposed order, the family court shall set a date and time for hearing.
(e)At any hearing on the proposed order, the family court
shall treat the proposed order as a motion for modification made by
the party requesting the bureau to initiate the modification. The
actions of the family court at a hearing shall be de novo and shall
not be an appeal from the bureau's recommended order. The family
court shall notify the parties of the hearing and of the parties'
rights and the procedures to be followed.
(f) The fees to be assessed for filing and service of the
petition and the disbursement of the fee for petitions filed
pursuant to this section shall be the same as the fee charged by
the clerk for petitioning for an expedited modification of a child
support order, as set forth in section eleven , article one,
chapter fifty-nine of this code.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. CIRCUIT COURTS; FAMILY COURT DIVISION.
§51-2A-15. Review by Supreme Court of Appeals; assistance for pro
se appellants.
(a) If both of the parties file, either jointly or separately,
within fourteen days following the entry of the final order of a
family court judge, a notice of intent to file an appeal from the
final order of the family court directly to the Supreme Court of
Appeals and to waive their right to file a petition for appeal with
the circuit court, the petition for appeal of the final order of the family court may be filed with the Supreme Court of Appeals in
accordance with the provisions of article five, chapter fifty-eight
of this code and the rules of appellate procedure, except that the
standard of review for any such appeal is the same as set forth in
subsection (b), section fourteen of this article.
(b) If a circuit court judge refuses to consider a petition
for appeal or if a party is adversely affected by the order entered
by the circuit court upon review of the final order of the family
court, the party may seek review of the order of the circuit court
by the Supreme Court of Appeals. If a petition for appeal to the
circuit court is transferred to the Supreme Court of Appeals
pursuant to the provisions of subsection (
d) (f), section fourteen
of this article, the petition for appeal filed in the circuit court
will be considered as a petition for appeal to the Supreme Court of
Appeals. The Supreme Court of Appeals has jurisdiction to hear and
entertain an appeal from an order of a circuit court or the
transfer of an appeal to the Supreme Court of Appeals as provided
in this article in the same manner provided for civil appeals in
article five, chapter fifty-eight of this code and in the rules of
appellate procedure, except that the standard of review for any
such appeal is the same as set forth in subsection (b), section
fourteen of this article.
(c) The Supreme Court of Appeals shall promulgate rules to
assist pro se litigants in the filing and processing of family court appeals to the circuit court and to the supreme court. Such
rules may address, but are not limited to, expedited means of
transcribing family court records, use of asynchronous data
communication network or other alternate forms of transmission for
conducting appellate hearings, alternate requirements for the
number of copies to be provided to the Supreme Court of Appeals and
other appropriate measures which will provide meaningful appellate
access to the courts pursuant to section seventeen, Article III of
the West Virginia Constitution.
NOTE: The purpose of this bill is to: (1) Clarify that
genetic tests must be attached to the 3-way paternity affidavit for
it to be valid;(2) establish a definitive statute of limitations
for child support orders; (3)clarify the definition of attributed
income; (4) clarify that prescription pharmaceuticals are included
in medical support; (5) clarify that an inmate's concession account
is considered income for child support purposes;(6)clarify that
support automatically extends past age 18, not to exceed age 20,
when a child is still in high school by operation of law;(7)
clarify when funds are to be refunded; (8) reinsert a statute that
was deleted during recodification relating to default and temporary
orders; (9) clarify that the bureau may bring an action for support
in medical only cases; (10) clarify refund procedures when a party
is deceased; (11) clarify where to file an affidavit of accrued
support and to remove restrictive reporting requirements; (12)
clarify that fees and overpayments may be collected through income
withholding; (13) clarify that the BCSE is not responsible for
refunding support collected in good faith; (14)clarify that
withholding limitations do not apply to bonuses; (15) provide
strengthened remedies against employers who fail to comply; (16)
correct code sites; (17) have the penalty for civil contempt be the
same whether the action is initiated by a private individual or by
the bureau; (18)authorize the Bureau for Child Support Enforcement
to add an additional one hundred dollars to a withholding when the
obligor is in arrears;(19) remove the provision requiring the BCSE
attorney meet with an individual and to allow a staff member to
fulfill this duty; (20) clarify that the Tax Commissioner has the
authority to deny issuance or re-issuance of a business license;(21)to repeal the Support Enforcement
Commission;(22)authorize the commissioner to study the child
support formula as required by 45 C.F.R. 302.56(C)(3)(e);(23)
authorize the Tax Commissioner to release the names and address of
employers to the Bureau for Child Support Enforcement;(24)
establish procedures to collect overpayments from obligees; to
(25) repeal the provision concerning the issuance of payment
coupons; and to (26) clarify that the Bureau for Child Support
Enforcement shall review all TANF cases every three years; and to
(27)make the requirement provisions of process of service
consistent.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Sections §48-13-804, §48-14-108 and §48-18-118a are new
therefore strike-throughs and underscoring have been omitted.
Sections §48-17-101, §48-17-102, §48-17-103, §48-17-104,
§48-17-105, §48-17-106, §48-17-107, §48-17-108 and §48-17-109 are
repealed.
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