H. B. 2057
(By Delegate Kiss)
[Introduced February 10, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend sections three and four, article five, chapter
forty-eight-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and
reenact sections eleven and twenty-eight-a, article one,
chapter fifty-nine of said code, all relating to the
children's advocate; requiring the children's advocate to
conduct a search of real property records before filing
liens; providing for a statement of assets by judgment
debtor; requiring the children's advocate to accept
statement of assets in certain cases; reducing certain
filing fees for the children's advocate; and requiring
certain fees to be paid into the regional jail fund.
Be it enacted by the Legislature of West Virginia:
That sections three and four, article five, chapter forty-
eight-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that
sections eleven and twenty-eight-a, article one, chapterfifty-nine of said code be amended and reenacted, all to read as
follows:
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS
AND VISITATION.
§48A-5-3. Withholding from income of amounts payable as support.
(a) The withholding from an obligor's income of amounts
payable as spousal or child support shall be enforced by the
children's advocate in accordance with the provisions of this
section. Every support order heretofore or hereafter entered by
a circuit court or a magistrate of this state and every support
order entered by a court of competent jurisdiction of another
state shall be considered to provide for an order of income
withholding in accordance with the provisions of section fifteen-
a or fifteen-b, article two, chapter forty-eight of this code,
notwithstanding the fact that such support order does not in fact
provide for such an order of withholding.
(b) In any case in which immediate income withholding is not
required, the children's advocate shall cause the mailing of a
notice to the obligor pursuant to this section when the support
payments required by the order are in arrears in an amount equal
to:
(1) One month's support, if the order requires support to be
paid in monthly installments;
(2) Four week's support, if the order requires support to be
paid in weekly or biweekly installments; or
(3) Two biweekly installments, if biweekly payments are
provided.
(c) If notice required by subsection (b) of this section is
appropriate, the children's advocate shall determine the time for
a meeting between the obligor and the children's advocate and the
time for a hearing before the family law master, and shall then
set forth in such notice the times and places at which the
meeting and hearing will be held if withholding is contested.
The meeting and hearing may be scheduled on the same date, but in
no case shall the meeting with the advocate be scheduled less
than fifteen days after the date the notice is mailed nor shall
the hearing before the master be scheduled more than twenty-one
days after the date the notice is mailed. The children's
advocate shall send such notice by first class mail to the
delinquent obligor. The notice shall inform the delinquent
obligor of the following:
(1) The amount owed;
(2) That it is proposed that there be withholding from the
obligor's income of amounts payable as support, and that if
withholding is uncontested, or is contested but determined
appropriate, the amount withheld will be equal to the amount
required under the terms of the current support order, plus
amounts for any outstanding arrearages;
(3) The definition of "income" as defined in section three,
article one of this chapter;
(4) That the withholding will apply to the obligor's presentsource of income and to any future source of income;
(5) That any action by the obligor to purposefully minimize
his or her income will result in the enforcement of support being
based upon potential and not just actual earnings;
(6) That payment of the arrearage after the date of the
notice is not a bar to such withholding;
(7) That if the obligor fails to appear at the meeting,
withholding will automatically occur as described in the notice;
(8) That a mistake of fact exists only when there is an
error in the amount of current or overdue support claimed in the
notice, or there is a mistake as to the identity of the obligor;
(9) That matters such as lack of visitation,
inappropriateness of the support award, or changed financial
circumstances of the obligee or the obligor will not be
considered at any hearing held pursuant to the notice, but may be
raised by the filing of a separate petition;
(10) That if the obligor contests the withholding, in
writing, a meeting with the children's advocate will be held at
a time and place set forth in the notice, for the purpose of
attempting to settle any issues which are contested, and that a
hearing before the family law master cannot be held until after
the meeting with the children's advocate occurs;
(11) That if the meeting with the children's advocate fails
to resolve the issues being contested, a hearing before the
family law master will be held at a time and place set forth in
the notice, and that following such hearing, the master will makea recommended order to the circuit court;
(12) That a master's recommended order as to withholding
will become effective when it is confirmed and entered by the
circuit court, and that if the obligor disagrees with the
master's recommended order, he or she will be given the
opportunity to make objections known to the circuit court; and
(13) That if, while the withholding is being contested, it
is determined that the obligor is in arrears in an amount equal
to or greater than one month's support obligation, but the amount
of the arrearage is disputed, then income withholding for the
current payment of support will be instituted, and may not be
stayed pending a final determination as to the amount of
arrearages due.
(d) Withholding should occur when the support order provides
for immediate income withholding, or if immediate income
withholding is not so provided, and the withholding is contested,
then after entry of the master's recommended order by the circuit
court. In any case where withholding should occur, the source of
income shall proceed to withhold so much of the obligor's income
as is necessary to comply with the order authorizing such
withholding, up to the maximum amount permitted under applicable
law. Such withholding, unless otherwise terminated under the
provisions of this section, shall apply to any subsequent source
of income or any subsequent period of time during which income is
received by the obligor.
(e) Notwithstanding any other provision of this code to thecontrary 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 can 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 arrearages are
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) If 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) If 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 ordependent 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) In addition to the percentage limitations set forth in
subdivisions (2) and (3) of this subsection, it shall be a
further limitation that when current payments plus arrearages are
being withheld from salaries or wages in no case shall the total
amounts withheld for current payments plus arrearages exceed the
amounts withheld for current payments by an amount greater than
ten percent of the obligor's disposable income.
(5) 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.
(6) If an obligor acts so as to purposefully minimize his or
her income and to thereby circumvent the provisions of this
section 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 whichlimit the amount to be withheld from disposable earnings.
(f) 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 child advocate office for
distribution in accordance with the provisions of section four,
article three of this chapter. 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.
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 must send the amount to be
withheld from the obligor's income along with such identifying
information as may be required by the child advocate office to
the child advocate office within ten days of the date 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, foradministrative 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 child advocate office;
(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 if 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
section 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 the source of income may combine withheld amounts
from obligors' income in a single payment to the child advocate
office and separately identify the portion of the single payment
which is attributable to each obligor;
(9) That the source of income must 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 must notify the childadvocate office promptly when the obligor terminates his or her
employment or otherwise ceases receiving income from the source
of income, and must provide the obligor's last known address and
the name and address of the obligor's new source of income, if
known.
(g) The director shall, by administrative rule, establish
procedures for promptly refunding to obligors amounts which have
been improperly withheld under the provisions of this section.
(h) A source of income must send the amount to be withheld
from the obligor's income to the child advocate office and must
notify the child advocate office of the date of withholding,
within ten days of the date the obligor is paid.
(i) In addition to any amounts payable as support withheld
from the obligor's income, 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.
(j) Withholding of amounts payable as support under the
provisions of this section is binding on the source of income
until further notice by the child advocate office.
(k) Every source of income who receives a notice of
withholding under the provisions of this section shall implement
withholding no later than the first pay period or first date for
the payment of income which occurs after fourteen days following
the date the notice to the source of income was mailed.
(l) A source of income who employs or otherwise pays income
to an obligor who is subject to withholding under the provisionsof this section must notify the child advocate office promptly
when the obligor terminates employment or otherwise ceases
receiving income from the source of income, and must provide the
office with the obligor's last known address and the name and
address of the obligor's new source of income, if known.
(m) A source of income who has more than a single obligor
who is subject to withholding from income under the provisions of
this article may combine all withheld amounts into a single
payment to the child advocate office, with the portion thereof
which is attributable to each obligor being separately
designated.
(n) 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
subsection (f) of this section: 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.
(o) A source of income who knowingly and willfully conceals
the fact that the source of income is paying income to an
obligor, with the intent to avoid withholding from the obligor's
income of amounts payable as support, is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not more than one
hundred dollars.
(p) If the children's advocate makes a written request to a
source of income to provide information as to whether the source
of income has paid income to a specific obligor, within the
preceding sixty-day period, the source of income shall, within
fourteen days thereafter, respond to such request, itemizing all
such income, if any, paid to the obligor during such sixty-day
period. A source of income shall not be liable, civilly or
criminally, for providing such information in good faith.
(q) Support collection under the provisions of this section
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.
(r) Any source of income who discharges from employment,
refuses to employ, or takes disciplinary action against any
obligor subject to income withholding required by this section
because of the existence of such withholding and the obligations
or additional obligations which it imposes on the source of
income, shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than five hundred dollars nor
more than one thousand dollars.
(s) In any case where immediate income withholding is not
required then, at any time following a period of eighteen months
during which the obligor has owed no arrearages to the obligee or
to the state of West Virginia or any other state, if the obligee
and obligor agree to the termination of withholding anddemonstrate to the children's advocate that there is a reliable
alternative method by which to make the support payments, they
may request the children's advocate to terminate withholding and
such withholding from income may cease until such time as further
withholding is required by law. The director of the child
advocate office shall, by legislative rule, establish state
termination standards which will ensure, at a minimum, that
withholding will not be terminated where there are indications
that it is unlikely that support will continue without such
withholding. The mere fact that all arrearages have been paid
shall not be a sufficient ground for the termination of
withholding.
(t) The children's advocate may not, prior to making a
diligent search of the records in the county clerk's office to
determine whether a judgment debtor is, in fact, an owner of real
property, file a real property or personal property lien. The
director of the child advocate office shall, by legislative rule,
develop and implement a statement of assets form to be delivered
to, completed and signed by a judgment debtor under oath. The
statement of assets form shall require the judgment debtor to
identify every source of income, every bank account, every
savings account, all cash on hand, and all real and personal
property of the judgment debtor or in which the judgment debtor
has an interest. Unless provided with clear and convincing
evidence to the contrary, the children's advocate shall accept
the information on the statement of asset form for purposes offiling writs of execution, suggestion or suggestee execution and
real and personal property liens. The children's advocate may
not file, by wholesale method, writs of execution, suggestion or
suggestee execution against banks or other commercial businesses
in the area in which a judgment debtor resides.
§48A-5-4. Liens against real and personal property for overdue
support.
An order for support entered by a court of competent
jurisdiction will give rise to a lien imposed against real and
personal property for amounts of overdue support owed by an
obligor who resides or owns property within this state when the
provisions of section seventeen, article two, chapter forty-eight
of this code have been complied with: Provided, That a foreign
order shall first be registered as a foreign support order with
the clerk in the same manner as such orders are registered in
actions under the revised uniform reciprocal enforcement of
support act, sections thirty-five, thirty-six, thirty-eight, and
thirty-nine, article seven of this chapter: Provided, That a
copy of the reciprocal enforcement of support law of the state in
which the order was made need not be filed with the clerk.
In order for a lien to be imposed under the provisions of
this section, an abstract of judgment shall be filed and an
affidavit or abstract of order of child support payment need not
be filed.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
The clerk of a circuit court shall charge and collect for
services rendered as such clerk the following fees, and such fees
shall be paid in advance by the parties for whom such services
are to be rendered:
Except for the children's advocate, for instituting any
civil action under the rules of civil procedure, any statutory
summary proceeding, any extraordinary remedy, the docketing of
civil appeals, or any other action, cause, suit or proceeding,
seventy dollars: Provided, That the fee for instituting an
action for divorce shall be twenty dollars plus the fee required
by section six, article two-c, chapter forty-eight of this code.
The children's advocate shall pay a fee of ten dollars for
instituting any civil action under the rules of civil procedure.
In addition to the foregoing fees, the following fees shall
likewise be charged and collected:
For any transcript, copy or paper made by the clerk for use
in any other court or otherwise to go out of the office, for each
page, twenty-five cents;
For action on suggestion, five dollars;
For issuing an execution, two dollars;
For issuing or renewing a suggestee execution, including
copies, postage, registered or certified mail fees and the fee
provided by section four, article five-a, chapter thirty-eight of
this code, three dollars;
For vacation or modification of a suggestee execution, one
dollar;
For docketing and issuing an execution on a transcript of
judgment from magistrate's court, three dollars;
For arranging the papers in a certified question, writ of
error, appeal or removal to any other court, five dollars;
For postage and express and for sending or receiving
decrees, orders or records, by mail or express, three times the
amount of the postage or express charges;
For each witness summons over and above five, on the part of
either plaintiff or defendant, to be paid by the party requesting
the same, twenty-five cents;
For additional services (plaintiff or appellant) where any
case remains on the docket longer than three years, for each
additional year or part year, five dollars.
The clerk shall tax the following fees for services in any
criminal case against any defendant convicted in such court:
In the case of any misdemeanor, fifty dollars;
In the case of any felony, sixty dollars;
No such clerk shall be required to handle or accept for
disbursement any fees, costs or accounts, of any other officer or
party not payable into the county treasury, except it be on order
of the court or in compliance with the provisions of law
governing such fees, costs or accounts.
§59-1-28a. Disposition of filing fees in civil actions and fees
for services in criminal cases.
(a) Except for civil actions filed by the children's
advocate, the clerk of each circuit court shall, at the end of
each month, pay into the regional jail and prison development
fund in the state treasury an amount equal to sixty dollars of
every filing fee received for instituting any civil action under
the rules of civil procedure, any statutory summary proceeding,
any extraordinary remedy, the docketing of civil appeals, or any
other action, cause, suit or proceeding in the circuit court:
Provided, That in actions for divorce, the clerk shall pay into
such fund an amount equal to ten dollars of the filing fee for
instituting such actions.
(b) The clerk of each circuit court shall, at the end of
each month, pay into the regional jail and prison development
fund in the state treasury an amount equal to forty dollars of
every fee for service received in any criminal case against any
defendant convicted in such court.
(c) In any civil action filed by the children's advocate,
the children's advocate shall pay into the regional jail and
prison development fund in the state treasury an amount equal to
sixty dollars for every filing fee required for instituting any
civil action under the rules of civil procedure.
NOTE: The purpose of this bill is to require the
children's advocate to conduct a search of real property records
before filing liens; to provide a system to require a judgment
debtor to disclose assets; to require the children's advocate to
accept information listed on the statement of assets provided by
the judgment debtor; and to prohibit the children's advocate from
filing wholesale writs of execution, suggestion or suggesteeexecution. The bill reduces certain filing fees paid by the
children's advocate and requires certain filing fees to be paid
by the children's advocate into the regional jail fund.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.