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Introduced Version - Originating in Committee Senate Bill 584 History

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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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[Originating in the Committee on the Judiciary;


reported March 17, 2005.]

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A BILL to amend and reenact §48-11-106 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto four new sections, designated §48-11-106a, §48-11- 106b, §48-11-106c and §48-11-106d, all relating to allowing the Bureau for Child Support Enforcement to enter administrative orders for modification of child support amounts; and providing for review of the administrative order by the family court.

Be it enacted by the Legislature of West Virginia:
That §48-11-106 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto four new sections, designated §48-11-106a, §48-11- 106b, §48-11-106c and §48-11-106d, all to read as follows:

ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-106. Administrative process for modification.
(a)An expedited process for modification of a child support order may be utilized if:
(1)Either parent experiences a substantial change of circumstances resulting in a decrease in income due to loss of employment or other involuntary cause;
(2)An increase in income due to promotion, change in employment or reemployment; or
(3)Other such change in employment status.
(b)The party seeking the recalculation of support and modification of the support order shall file a description of the decrease or increase in income and an explanation of the cause of the decrease or increase on a standardized form to be provided by the secretary-clerk or other employee of the family court. The standardized form shall be verified by the filing party. Any available documentary evidence shall be filed with the standardized form. Based upon the filing and information available in the case record, the amount of support shall be tentatively recalculated.
(c)The secretary-clerk shall serve a notice of the filing, a copy of the standardized form and the support calculations upon the other party by certified mail, return receipt requested, with delivery restricted to the addressee, in accordance with rule 4(d)(1)(D) of the West Virginia rules of civil procedure. The secretary-clerk shall also mail a copy by first-class mail, to the local office of the bureau for child support enforcement for the county in which the family court is located in the same manner as original process under rule 4(d) of the West Virginia rules of civil procedure.
(d)The notice shall fix a date fourteen days from the date of mailing and inform the party that unless the recalculation is contested and a hearing request is made on or before the date fixed, the proposed modification will be made effective. If the filing is contested, the proposed modification shall be set for hearing; otherwise, court shall enter an order for a judgment by default. Either party may move to set aside a judgment by default, pursuant to the provisions of rule 55 or rule 60(b) of the rules of civil procedure.
(e)If an obligor uses the provisions of this section to expeditiously reduce his or her child support obligation, the order that effected the reduction shall also require the obligor to notify the obligee of reemployment, new employment or other such change in employment status that results in an increase in income. If an obligee uses the provisions of this section to expeditiously increase his or her child support obligation, the order that effected the increase shall also require the obligee to notify the obligor or reemployment, new employment or other such change in employment status that results in an increase in income of the obligee.
(f)The supreme court of appeals shall develop the standardized form required by this section.
(a) A party seeking a modification of a child support order pursuant to section one hundred five, article eleven of this chapter and section one hundred six, article fourteen of this chapter shall
file a petition for modification with the circuit clerk's office in the county where the original order was issued. Any petition for modification filed with the circuit clerk shall constitute an application for services with the Bureau for Child Support Enforcement and the circuit clerk shall forward the petition for modification to the Bureau for Child Support Enforcement within seven days of receipt.
(b) A party seeking the recalculation of support and modification of the support order shall file a description of the decrease or increase in income and an explanation of the cause of the decrease or increase on a standard form to be provided by the clerk of the circuit court simultaneously with the filing of the petition for modification. The standard form shall be verified and signed by the filing party and filed with clerk of the circuit court. Any available documentary evidence shall be filed with the standard form.
(c) The Bureau for Child Support Enforcement shall serve a notice of the filing and a copy of the standard form upon both parties within ten days of receipt from the clerk of the circuit court. The Bureau for Child Support Enforcement shall also issue a subpoena duces tecum for financial documentation to the opposing party by certified mail, return receipt requested, pursuant to section one hundred twenty-three, article eighteen of this chapter with delivery restricted to the addressee, in accordance with Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure.
(d) The notice and subpoena shall inform the party that unless financial information is received within twenty days of receipt of the notice and subpoena as evidenced by the return receipt, the Bureau for Child Support Enforcement will recalculate the child support amount pursuant to the guidelines set forth in article thirteen of this chapter
and based upon the information provided by the requesting party or readily available to the Bureau for Child Support Enforcement. If necessary, the Bureau for Child Support Enforcement shall attribute income to the opposing party as provided for in article thirteen of this chapter.
(e) The Bureau for Child Support Enforcement shall prepare an administrative order for the recalculation of support within sixty days of the initial filing of the petition for modification. The recalculation shall be served upon both parties by certified mail, return receipt requested, with delivery restricted to the addressee, in accordance with Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure.

(f) If the administrative order is not contested, the Bureau for Child Support Enforcement will forward the original order to the clerk of the circuit court for entry and direct the clerk of the circuit court to forward certified copies of the final administrative order to all parties.

(g) The final administrative child support order shall set forth the justification for the modification. A copy of the calculation work sheet as provided in article thirteen of this chapter shall be attached to the order. Final administrative child support orders shall make such relief retroactive to the date of service of the petition for modification on the opposing party.
(h) A final administrative order may be appealed to the family court judge within twenty days from the date of entry by the clerk of the circuit court.
(i) Final administrative orders entered by the Bureau for Child Support Enforcement shall be accorded the same force and effect as an order entered by a family court judge or a circuit court judge.
(j) The authority of the Bureau for Child Support Enforcement to conduct an administrative child support review is limited solely to modification of child support amounts. Any other issues, including, but not limited to, modification of spousal support, visitation and property distribution, shall be addressed by the family court.
(k) The Supreme Court of Appeals shall develop the all standard forms required by this section.
§48-11-106a. Final administrative orders.
(a)An attorney for the Bureau for Child Support Enforcement shall conduct an administrative child support review and determination based upon all available documentation pursuant to section one hundred six of this article. The attorney shall enter an order with the clerk of the circuit court within twenty days of the deadline for receipt of supporting financial documentation. The clerk of the circuit court shall send a certified copy of the final administrative order to the attorney for each party, or if a party is unrepresented, to the party, in the same manner as pleadings subsequent to an original complaint are served in accordance with Rule 5 of the West Virginia Rules of Civil Procedure.
(b)All final orders of the Bureau for Child Support Enforcement shall:
(1) Include findings of fact and conclusions of law on all issues presented at the time of the administrative child support review;
(2) Contain other pertinent documentation relied upon by the Bureau for Child Support Enforcement; and
(3) Set forth appropriate sanctions, relief or denial of relief.
(c) All final orders of the Bureau for Child Support Enforcement shall include a notice of the right to petition for review of the final administrative order to the family court judge.
§48-11-106b. Family court review of final administrative order of the Bureau for Child Support Enforcement.

A person who alleges that he or she will be adversely affected or aggrieved by a final administrative order of the Bureau for Child Support Enforcement is entitled to a review of the proceedings by the family court. The final administrative order of the Bureau for Child Support Enforcement is subject to de novo review by the family court.
§48-11-106c. Petition for review.
(a) Within twenty days following the entry of an administrative order by the Bureau for Child Support Enforcement, either party may file a petition for review with the family court.
(b) A petition for review of a administrative order of the Bureau for Child Support Enforcement shall be filed in the office of the clerk of the circuit court. At the time of filing the petition, a copy of the petition for review must be served on all parties to the proceeding in the same manner as pleadings subsequent to an original complaint are served under Rule 5 of the West Virginia Rules of Civil Procedure.
(c) The family court judge may require, or a party may choose to submit with the petition for review, a brief in support of the petition.
(d) A respondent shall have fifteen days after the filing of a petition to file a reply to the petition for review. The reply must be served on all parties to the proceeding in the same manner required for service of the petition. The family court judge may require, or a party may choose to submit with the reply, a brief in opposition to the petition.
(e) In addition to the reply, the respondent may file a cross-petition to the petition for review within fifteen days after the filing of the petition. The respondent to the cross-petition shall have fifteen days after the filing of the cross-petition to file a reply. The cross-petition and any reply must be served in the same manner required for service of the original petition. The family court judge may require or either party may choose to submit a brief on the cross-petition.
(f) The Bureau for Child Support Enforcement shall not be responsible for any fees, including, but not limited to, filing fees, service fees and attorney fees, associated with a review of an administrative child support order.
(g) The Supreme Court of Appeals shall develop and provide forms for petitions for review filed pursuant to this section. The forms shall be made available for distribution in the offices of the clerks of the circuit courts and in the offices of the family court judges.
§48-11-106d. Review by circuit court; record; standard of review; temporary order upon remand.

(a) The family court judge may enter an order refusing to consider the petition for review or a cross-petition for review if the court finds:
(1) The party presenting the petition has not complied with required procedures, including service on the other party;
(2) The petition for review fails to state an error of law or a misapplication of law to the facts or other grounds for reversal or remand; or
(3) Construing the financial evidence presented to the Bureau for Child Support Enforcement in the light most favorable to the party filing the petition for review, the petition fails to state a genuine issue as to any fact material to the decision of the attorney for the Bureau for Child Support Enforcement.
(b) If the family court does not enter an order refusing to consider the petition for review, the court shall consider the review and may affirm or reverse the administrative order or may affirm or reverse the order in part. An administrative order may not be remanded to the Bureau for Child Support Enforcement.
(c) If the family court judge agrees to consider a petition for review, the court shall provide the parties an opportunity to appear for oral argument, present evidence, upon the request of either party or in the discretion of the court.
(d) The family court judge must enter an order ruling on a petition for review within sixty days from the last day a reply to the petition for review could have been filed. If the family court judge does not enter the order within the sixty-day period or does not, within the sixty-day period, enter an order stating just cause why the order has not been timely entered, the circuit clerk shall send a written notice to the parties that unless the parties both file an objection within fourteen days of the date of the notice, the appeal will be transferred to the circuit court due to the failure of the family court to timely enter an order. The review shall be transferred without the necessity of the filing of any petition or further document by the petitioner.

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(NOTE: The purpose of this bill is to allow the Bureau for Child Support Enforcement, in limited circumstances, to enter final administrative child support orders and provide for review of administrative orders by the family court.

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

Sections 106a, 106b, 106c and 106d are new therefore strike- throughs and underscoring have been omitted.)
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