H. B. 2734


(By Delegate Huffman)
[Introduced March 26, 1993; referred to the
Committee on Health and Human Resources then the Judiciary.]




A BILL to amend and reenact section five, article five, chapter sixty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to authorizing and directing the division of human services and the director of the child advocate office to amend its legislative rules relating to the formula establishing child support obligations; child support awards; self support of an obligor; primary child support need; the definitions of income and indebtedness; and taxes withheld from income.

Be it enacted by the Legislature of West Virginia:
That section five, article five, chapter sixty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 5. AUTHORIZATION FOR DEPARTMENT OF HEALTH AND HUMAN RESOURCES TO PROMULGATE LEGISLATIVE RULES.

§64-5-5. Division of human services; director of the child
advocate office.
(a) The Legislature hereby authorizes and directs the director of the child advocate office of the department of human services to promulgate rules relating to guidelines for child support awards in exact conformity with the rules relating to guidelines for child support awards tendered to the secretary of state by the Senate committee on the judiciary on the twelfth day of March, one thousand nine hundred eighty-eight.
(b) The legislative rules filed in the state register on the twenty-seventh day of May, one thousand nine hundred eighty- eight, modified by the director of the child advocate office of the department of human services to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-third day of September, one thousand nine hundred eighty-eight, relating to the director of the child advocate office of the department of human services (interstate income withholding), are authorized.
(c) The legislative rules filed in the state register on the twenty-seventh day of May, one thousand nine hundred eighty- eight, modified by the director of the child advocate office of the department of human services to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-third day of September, one thousand nine hundred eighty-eight, relating to the director of the child advocate office of the department of human services (obtaining support from federal and state income tax refunds), areauthorized.
(d) The legislative rules filed in the state register on the twenty-seventh day of May, one thousand nine hundred eighty- eight, modified by the director of the child advocate office of the department of human services to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-third day of September, one thousand nine hundred eighty-eight, relating to the director of the child advocate office of the department of human services (termination of income withholding), are authorized.
(e) The legislative rules filed in the state register on the twenty-seventh day of May, one thousand nine hundred eighty- eight, modified by the director of the child advocate office of the department of human services to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-third day of September, one thousand nine hundred eighty-eight, relating to the director of the child advocate office of the department of human services (providing information to credit reporting agencies), are authorized.
(f) The Legislature hereby authorizes and directs the division of human services and the director of the child advocate office to amend its rules relating to the formula establishing child support obligations; child support awards; self support of an obligor; primary child support need; the definitions of income and indebtedness; and taxes withheld from income with the amendments set forth below:
"§78-16-2.3
Determination of the base income available for primary child support--The court shall determine for each support obligor (custodial & noncustodial obligations) the amount of "base pay income" available (excluding overtime, shift differentials, and bonuses which is not a consistent income) for "primary child support" by subtracting the self-support need of the obligor from the base pay income of such obligor. The self-support need is to be deducted automatically self-support need.
§78-16-2.4
Determination of the total support need--The court shall establish the primary support need for each child for whom the child support is sought and then total these amounts. The needs of all the children in question, the cost of extraordinary medical expenses, after proven to the court shall be divided equally between both parents. The cost of child care, if custodial parent is working this cost, shall be divided equally between both parents, unless such expenses or costs have been deducted from income. Other expenses incurred because of the special needs of a child may be allowed if both parents agree upon these needs and the court establishes this as so it shall be divided equally between both parents. The court shall deduct from primary support need of a child the unearned income of such child if this amount has been deducted on the federal and state income tax. The amount resulting from these calculations shall be the total primary support need of the child or children, whichis to be the responsibility of both parents.
§78-16-2.5
Determination of the primary support obligation of each obligor--The court shall divide equally to each support obligors (which the support obligation belongs to both parents) (noncustodial & custodial) base pay income-excluding overtime, shift differentials and bonuses, after deductions, from income required by law 78-16-8.1, after deductions from income required by an employer as a condition of employment 78-16-9.1, after deductions from income required by a union as a condition of employment 78-16-10.1 and after deductions of the self-support need of an obligor 78-16-15.1. 2.3. The resulting percentage establishes the privilege which each support obligor (noncustodial & custodial) should carry with respect to the primary child support needs of their children. This percentage should then be multiplied by the total primary child support need in order to arrive at the primary support obligation of each obligor (noncustodial & custodial).
§78-16-2.6
If the discretionary base pay income of support obligor is below the sum of $40,000 a year after deductions--The standard of living adjustment (SOLA) will not apply to the percentages in the support obligation. The SOLA amount is to be mandatory and to be put into an educational trust fund for the child or children, as the responsibility of the noncustodial parent, if both parents agree. At the age of 18, the child or children can decide andchoose how he or she will spend the educational trust fund, for their education, automobiles, or their own shelter, etc...
§78-16-2.7
Calculation of the SOLA support obligations--If discretionary income is available, a support obligor shall be required to pay as a "SOLA support obligation," amounts calculated as percentages of discretionary income as follows:
First child 10%
Second & third child 10% each
Fourth, fifth, sixth 10% each
§78-16-2.8
Calculation of the per-child share of SOLA support--Upon determining the base pay income (excluding overtime, shift differentials and bonuses) of the support obligor is below the sum of $40,000,00 a year, the standard of living adjustment will not apply. However, if SOLA support is applied, the court shall calculate 10% per-child share of such SOLA support. The SOLA amount if applied has to be verified and justified in the receiving of child support by the custodial parent upon proof of benefiting the child at end of each year.
§78-16-2.9.1
At no time, unless disabled, shall either noncustodial or custodial parent refrain from their obligation, both parents have to be responsible for his or her child support. The obligation shall be divided equally, unless disabled, then the child support payments should be made through an application through the socialsecurity administration.
§78-16-2.9.4
Payments to third parties in the form of home loan installments, land contract payments, rent, payments for utility services, property taxes, insurance coverage, or other expenses or charges reasonably necessary for maintenance of a residence for the support obligor's children, to the extent that such payments have been specifically denominated as child support by a court order or a valid separation agreement, shall, if actually paid, be credited against both support obligor's (noncustodial & custodial) total monthly child support obligation and divided for equal deductions:
Provided, That in no event shall the credits given under this subdivision reduce the support obligor's total monthly child support obligation to an amount less than such support obligor's primary support obligation.
§78-16-4.1.1.1
Both support obligors are providing care required by the children to whom 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 support obligor.
§78-16-4.1.1.2
Both support obligors are pursuing 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 oreducation.
§78-16-4.1.1.3
Both support obligors are for valid medical reasons, earning an income in an amount less than that previously earned.
§78-16-4.1.1.4
Both support obligors have made diligent efforts to find and accept available suitable work or to return to customary self- employment, to no avail.
§78-16-4.1.2
If a court or master determines that a limitation on income is not justified in that it is a result of a self-induced decline in income, a refusal to occupy time profitably, or an unwillingness to accept employment and earn an adequate sum, the court may consider evidence establishing both support obligor's earning capacity in the local job market, and may attribute income to such obligor, equally divided.
§78-16-4.1.3
As an alternative to the method of determining attributed income provided for in subdivision 4.1.2, where a support obligor is remarried and is unemployed, underemployed by quitting, or is otherwise working below full earning capacity, the court or master may attribute income to the support obligor in an amount not to exceed that which could be derived by the obligor from full-time employment at the current minimum wage.
§78-16-13.1
The term "payments for the benefit of children" shall meanan amount or amounts paid by (both parents) support obligors to third parties on a regular, recurring basis for the benefit of the support obligor's children, including, but not limited to, tuition, health care expenses, hospital insurance, medical, dental or optical insurance.
§78-16-13.2
Payments for the benefit of children which are, in fact, extraordinary medical expenses (proved by the court), cost of child care needed to allow a custodial parent to work (has to be justified and verified by the child care facility or babysitter and their signature), or other expenses incurred because of the special needs of a child, may, in the discretion of the court or master, be treated as payments for the benefits of children divided in one-half and subtracted from each (noncustodial & custodial) income. If such costs and expenses are subtracted from each (noncustodial & custodial) income under subsection 2.1, they shall not be added to primary support needs under 2.4. If such costs and expenses are not deducted from income, and are used in calculating the primary child support need, such payments shall be subtracted, as child support payments, from the total monthly child support obligation of the obligor as calculated under subsection 2.9.
§78-16-15.1
The term "self-support need of an obligor" or "primary self- support need of an obligor" shall mean the equal amount of income that both support obligor must retain to function at maximumproductivity.
§78-16-15.2
In determining self-support need of an obligor, it shall be a mandatory deduction from the child support formula by the court or master, the expenses for food, clothing, shelter, medical care and job-required transportation.
§78-16-15.3
If presented, the court shall consider evidence of probative facts as to the needs of a support obligor with regard to a consideration of matters described in 15.2, and if such evidence is convincing under a jury trial, may determine that a variance from the presumptive minimum need is supported by such evidence. If such evidence is not presented, or is not convincing under a jury trial, the self-support need of an obligor will be the presumptive minimum need of such obligor as calculated under the provisions of section seventeen.
§78-16-16.1
The term "primary child support need" shall mean the absolute minimum amount of a money that a child requires for food, clothing, shelter and medical care. If the custodial parent is remarried the shelter in the child support formula, to be mandated, is to be terminated. If the custodial parent is cohabitating the shelter in the child support formula is to be decreased.
§78-16-16.2
The primary support need of a child will be the presumptiveminimum need of such child as calculated under the provisions of section seventeen, presented in the bill unless the court or master determines that a variance from the presumptive minimum need is supported by convincing evidence. It is to be mandatory for the custodial parent to verify and justify at the end of each year that the primary child support obligation received by the custodial parent was for food, clothing, shelter and medical care for the child or children. This is in protection of the child or children to restrain the custodial parent from misusing child support on such as: Alcohol, drugs, automobiles or any luxuries that a custodial parent would benefit from.
§78-16-3.1.1
Commissions, earnings, salaries, wages and other income due, or to be due in the future, to support obligor from his or her employer and successor employers, excluding fringe benefits such as business expense accounts, excluding business credit accounts, and excluding tangible property such as automobiles and meals, to the extent that they provide a support obligor with property or services he or she would otherwise have to provide.
§78-16-17.1.3
Where a support obligor is remarried and both the support obligor and his or her present spouse are fully employed, they are to be treated as a unit. The minimum presumptive need of the couple would be $850 ($550 for the first adult + $250 for the second adult in the same household + $50 additional work-related expense for the employed spouse). The support obligor will beallowed 50% of this amount or $425, for biweekly amount, as his or her minimum presumptive need.
§78-16-17.1.4
In a case where a support obligor is remarried and unemployed, and the court or master has attributed income to the obligor, the obligor and his or her spouse are to be treated as a unit, and the minimum presumptive need of the couple would be $800($550 for the first adult + $250 for the second adult in the same household). The support obligor will be allowed 50% of this amount, or $400 for a biweekly amount, as his or her minimum presumptive need. No additional work-related expenses will be allowed, since the obligor is not employed outside of the home.
§78-16-7.1
The term "taxes withheld from income" shall mean the amount of income tax deducted and withheld by a "employer from income of a support obligor, computed in such a manner as to result, so far as is practicable, in withholding an amount substantially equivalent to the income tax estimated to be due. The amount of taxes withheld from income, to be valid as a factor in determining the amount of child support owed by a support obligor, shall be based upon the maximum number of withholding exemptions allowable under the applicable tax law, and in a case of remarriage the second family will be included in the benefits.
§78-16-3.1.2
Any payment due to a support obligor from a profit-sharing plan, a pension plan, an insurance contract, an annuity, socialsecurity, unemployment compensation, supplemental employment benefits and workers' compensation payable under a workers' compensation law as temporary total disability benefits shall be applied but at a rate not to exceed 50% of an existing court ordered obligation and at no time will arreage be applied during these situation. At no time shall the fact that a parent has remarried, or the fact that the spouse of a remarried parent is, or is not, gainfully employed, or that said spouse has income from whatever source, be considered in determining whether or not to increase or decrease child support payments by or to the remarried parent. In case of remarriage, additional family members shall benefit from its claims and equal share of income tax return.
§78-16-14.2
The court or master may disregard any debt which is incurred with the obvious intent of decreasing child support payments such as boats, extra automobiles, hunting cabins, jewelry and luxury items. Also, if a noncustodial or a custodial parent is trying to prove a hardship case, he or she may do so only in open court.
§78-16-17.1
The term "presumptive minimum need" shall mean the amount of money that a person is presumed to need for the necessities of life, based upon their rank in their particular household. The presumptive minimum needs of the several members of a given household are as follows:
First Adult- support obligor- $550 per month
Second Adult- present spouse- $250 per month
First Child $135 per month
Second Child $135 per month
Third Child $135 per month
Fourth Child, Fifth, Sixth, etc... $135 per month
Each child is equal and to be created equal."



NOTE: The purpose of this bill is to authorize and direct the division of human services and the director of the child advocate office to amend its rules relating to the formula establishing child support obligations; child support awards; self-support of an obligor; primary child support need; and the definitions of income and indebetedness; and taxes withheld from income.

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