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Enrolled Version - Final Version (2) Senate Bill 584 History

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sb584 enr2
ENROLLED

Senate Bill No. 584

(By Senators Kessler, Dempsey, Foster, Hunter, Jenkins, Minard, Oliverio, White, Barnes, Caruth, Deem, Harrison, Lanham, McKenzie and Weeks)

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[Passed April 16, 2005; in effect ninety days from passage.]

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AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §48-11-106a; to amend said code by adding thereto a new section, designated §48-14- 107; and to amend said code by adding thereto six new sections, designated §48-18-201, §48-18-202, §48-18-203, §48- 18-204, §48-18-205 and §48-18-206, all relating to modification of child support orders; allowing the Bureau for Child Support Enforcement to assist a party seeking the recalculation of support and modification of a child support order due to a substantial change in circumstances; providing request for assistance; notice and filing procedures; granting subpoena powers; providing circumstances under which application may be refused; requiring certain information be provided; opportunity to meet with parties prior to filing of petition for a proposed order; providing for the submission and consideration of proposed modified child support orders to the family court; establishing filing, related notice and review procedures for petitions for modification; and providing that a party may file a request for modification if Bureau of Child Support Enforcement rejects request for assistance.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §48-11-106a; that said code be amended by adding thereto a new section, designated §48-14- 107; and that said code be amended by adding thereto six new sections, designated §48-18-201, §48-18-202, §48-18-203, §48-18- 204, §48-18-205 and §48-18-206, all to read as follows:

ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-106a. Modification of support order with the assistance of Bureau for Child Support Enforcement.

In addition to any other procedure which may exist by law, any party seeking the recalculation of support and modification under a child support order due to a substantial change in circumstances pursuant to the provisions of section one hundred six of this article may seek and obtain the assistance of the Bureau of Child Support Enforcement, pursuant to the procedures established under the provisions of sections two hundred one through two hundred six, inclusive, article eighteen of this chapter, in the preparation, assessment and presentation of an appropriate petition for modification of a support order, including the identification and narrowing of issues associated with a requested recalculation of support prior to filing the petition and the preparation and presentation of an appropriate petition and proposed order for modification for consideration by the family court.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-107. Modification of support order with the assistance of Bureau for Child Support Enforcement.

In addition to any other procedure which may exist by law, any party seeking the recalculation of support and modification under a child support order due to a substantial change in circumstances pursuant to the provisions of section one hundred six of this article may seek and obtain the assistance of the Bureau of Child Support Enforcement, pursuant to the procedures established under the provisions of sections two hundred one through two hundred six, inclusive, article eighteen of this chapter, in the preparation, assessment and presentation of an appropriate petition for modification of a support order, including the identification and narrowing of issues associated with a requested recalculation of support prior to filing the petition and the preparation and presentation of an appropriate petition and proposed order for modification for consideration by the family court.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-201. General provisions related to requests for assistance, recalculation of support amounts, preparation of petition and proposed orders.

(a) An obligor or an obligee under a child support order may seek and obtain the assistance of the Bureau for Child Support Enforcement to perform a recalculation of the support amount and prepare and present a petition seeking modification of a child support order and the presentation of a proposed order modifying support to the family court.
(b) A request for services authorized by this section shall constitute an application for services from the Bureau for Child Support Enforcement.
(c) The duties and actions directed or authorized when a request is made pursuant to this section shall be exercised by the employees and agents of the Bureau for Child Support Enforcement under the supervision and direction of Bureau for Child Support Enforcement attorneys as part of, and in addition to, their duties as set out in section one hundred three, article nineteen of this chapter.
(d) In performing its duties under this section, the Bureau for Child Support Enforcement is authorized to issue subpoenas and subpoenas duces tecum, pursuant to the provisions of section one hundred twenty-three of this article, to require an obligor or obligee to produce and permit inspection and copying of designated books, papers, documents or tangible things pursuant to Rule 45 of the Rules of Civil Procedure or section one hundred twenty-three of this article.
(e) When the Bureau for Child Support Enforcement is authorized or required by this section to notify or give notice to a party, the notice shall be given in the same manner as required for service of a petition for modification of support filed with the family court.
(f) The procedures and forms used shall provide that one party may request that their residential address and the address and identity of the employer not be revealed to another party.
(g) The Bureau for Child Support Enforcement may refuse to accept a request or take action on a request for assistance if it determines there are existing ongoing proceedings which would create a conflict, or if it determines that the request was not in good faith based on the allegations made, a history of multiple such requests or other information. If the Bureau for Child Support Enforcement makes a determination to refuse the request for assistance, it shall notify the party making the request for assistance and, if the responding party has already been notified of the request, the responding party.
(h) The Bureau for Child Support Enforcement shall prepare an explanation of the process and procedures it will use to process the request for assistance under this section. The explanation shall be made available generally to the public, given to every person who makes a request and included with the notice to the responding party.
§48-18-202. Request for assistance by party.

To make a request for assistance under this article, a party shall submit the request in writing to the Bureau for Child Support Enforcement on a form provided by the Bureau. The written request form shall include all of the requesting party's information known to the party that is relevant to determine the child support amount. The request shall be accompanied by:
(1) A copy of the order being modified or, in the discretion of the Bureau, information sufficient to permit the Bureau to retrieve or identify the order;
(2) A form containing a statement of all of the requesting party's information known to the party that is relevant to determining the amount of child support, including a general statement or argument advancing the reason the request is being made;
(3) Copies of documentation reasonably available to the requesting party setting forth all of the requesting party's information that is relevant to determine the amount of child support;
(4) A statement setting forth the relevant information pertaining to the responding party's earnings and child support that is known or believed to be true by the requesting party;
(5) Copies of any relevant documentation which the requesting party may have in its possession which would be relevant to determining the responding party's child support obligations; and
(6) A statement of all other known proceedings, pending court proceedings or other pending requests for assistance involving the parties or related to the child or children whose support is being reevaluated.
§48-18-203. Bureau processing of request for assistance or recalculation.

(a) Upon receipt of a request from a party pursuant to section two hundred two of this article, the Bureau for Child Support Enforcement shall notify the responding party that a request for assistance in the recalculation of the support amount and the related preparation and presentation of a petition or proposed order to modify an existing child support order has been submitted to the Bureau for Child Support Enforcement.
(b) As a part of the notification provided under subsection (a) of this section, notification provided by the Bureau for Child Support Enforcement to the responding party shall include the following:
(1) A blank information statement form and an explanation of the form;
(2) A statement advising the responding party that if the responding party does not fill out and return the information statement with accompanying documentation, that the information contained on the requesting party's information statement and any attached documentation may be used to prepare a petition and proposed order to modify the parties' existing child support obligations and filed with the family court, if the submitted information shows a substantial change in the parties' circumstances;
(3) A copy of the information statement supplied by the requesting party in support of its request;
(4) A request that the responding party submit a statement and supply a copy of any information or documentation which the responding party may have which would challenge, contradict or supplement the information which has been previously submitted by the requesting party to allow the Bureau for Child Support Enforcement to more accurately recalculate any modified child support obligations of the parties;
(5) An explanation that the Bureau for Child Support Enforcement may refuse to accept a request or take action on a request if it determines there are existing ongoing proceedings which would create a conflict;
(6) A request that the responding party provide a list of all other known proceedings, pending court proceedings or other requests for recalculation or modification of the parties' respective child support obligations; and
(7) An explanation of the process to be followed by the Bureau for Child Support Enforcement in providing the requested assistance, recalculation of the parties' modified child support obligations, including the preparation of a petition, and proposed order to modify the parties' existing child support obligations, when appropriate.
(c) The Bureau for Child Support Enforcement may issue a subpoena or subpoena duces tecum, pursuant to the provisions of section one hundred twenty-three of this article, to require the responding party to produce and permit inspection and copying of designated books, papers, documents or tangible things which are relevant to determine child support.
(d) The Bureau for Child Support Enforcement may issue a subpoena, pursuant to the provisions of section one hundred twenty- three of this article, to produce and permit inspection and copying of designated books, papers, documents or tangible things relevant to the determination of child support to persons other than the parties to the support order.
(e) The Bureau for Child Support Enforcement may use other information and other communications or procedures available to the Bureau for Child Support Enforcement to gather information relevant to the determination of child support.
§48-18-204. Request for meeting with the Bureau.

(a) Either party may ask for an in-person meeting with the Bureau prior to the preparation or presentation of any petition to seek a modification of a child support order or any proposed modification order to the family court. As a part of the initial contact and notice to the parties after its receipt of an assistance request under this article, the Bureau for Child Support Enforcement shall inform the parties of their right to meet with the Bureau for Child Support Enforcement to discuss the circumstances and any relevant factors pertaining to the parties' child support obligations. If either party asks for a meeting, the responding party shall be notified that a meeting has been requested. The parties shall not meet with the Bureau at the same time except as allowed in the discretion of the Bureau. No party may be required to meet with the Bureau.
(b) A party may modify an information statement or provide additional documents at the meeting or at any time before the Bureau sends its proposed order to the family court.
§48-18-205. Bureau action on request of recalculation and presentation of proposed order.

(a) If the Bureau determines that no credible information exists to establish finding of a substantial change in circumstances as required by section one hundred five, article eleven of this chapter or section one hundred six, article fourteen of this chapter, the Bureau for Child Support Enforcement shall notify the parties of that fact and notify the parties that the Bureau for Child Support Enforcement will not be preparing a petition or proposed order seeking modification of the parties' child support obligation. Under those circumstances, if the parties disagree with the Bureau for Child Support Enforcement's assessment and wish to independently file a petition for modification, the parties may still seek modification of child support by filing a petition for modification of an order for support with the family court under the provisions of section one hundred five or one hundred six, article eleven of this chapter or under the provisions of section one hundred six, article fourteen of this chapter.
(b) If the Bureau for Child Support Enforcement determines that there has been a substantial change of circumstances as required by section one hundred five, article eleven of this chapter or by section one hundred six, article fourteen of this chapter, then the Bureau for Child Support Enforcement shall prepare a petition and proposed order modifying the child support order to be filed with the clerk of the family court.
(c) Any such petition filed by the Bureau for Child Support Enforcement, filed pursuant to this article, shall include the following:
(1) A copy of the proposed order;
(2) A print-out of the child support guidelines calculations;
(3) A notice of the Bureau's action;
(4) The documents and statements relied upon;
(5) Any statement of findings or justification the Bureau is required or determines to include; and
(6) A form and instructions for filing an objection to the proposed order, should a party wish to do so, which form shall require a statement of the ground or grounds for filing the objection.
(d) The Bureau for Child Support Enforcement's proposed order shall be based on the child support guidelines: Provided, That the Bureau may disregard the child support guidelines or adjust the amount as allowed by section seven hundred two, article thirteen
of this chapter in the following instances:
(1) When the previous child support order disregarded the child support guidelines; the grounds for the disregarding or adjusting the guidelines are stated in the worksheet or previous order or are agreed upon by the parties or are otherwise clear; and those grounds continue to exist and can be applied to the current circumstances; or
(2) If new grounds for the disregard or adjustment are fully explained in the proposed order.
§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, 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.
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