Senate Bill No. 466

(By Senator Bailey)

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[Introduced February 21, 1994; referred to the Committee
on the Judiciary.]

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A BILL to amend and reenact section eight, article two, chapter forty-eight-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to enforcement of family obligations; West Virginia child advocate office; guidelines for child support awards; and providing that overtime wages are not to be considered in establishing child support obligations.

Be it enacted by the Legislature of West Virginia:
That section eight, article two, chapter forty-eight-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 2. WEST VIRGINIA CHILD ADVOCATE OFFICE.

§48A-2-8. Guidelines for child support awards.

(a) The director of the child advocate office shall, by legislative rule, establish guidelines for child support award amounts so as to ensure greater uniformity by those persons who make child support recommendations and enter child support ordersand to increase predictability for parents, children and other persons who are directly affected by child support orders. There shall be a rebuttable presumption, in any proceeding before a family law master or circuit court judge for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case. The guidelines shall not be followed:
(1) When the child support award proposed to be made pursuant to the guidelines has been disclosed to the parties and each party has made a knowing and intelligent waiver of said amount, and the support obligors have entered into an agreement which provides for the custody and support of the child or children of the parties; or
(2) When the child support award proposed to be made pursuant to the guidelines would be contrary to the best interests of the child or children, or contrary to the best interests of the parties.
(b) The Legislature, by the enactment of this article, recognizes that children have a right to share in their natural parents' level of living. Accordingly, guidelines promulgated under the provisions of this section shall not be based upon any schedule of minimum costs for rearing children based uponsubsistence level amounts set forth by various agencies of government. The Legislature recognizes that expenditures in families are not made in accordance with subsistence level standards, but are rather made in proportion to household income, and as parental incomes increase or decrease, the actual dollar expenditures for children also increase or decrease correspondingly. In order to ensure that children properly share in their parents' resources, regardless of family structure, the guidelines shall be structured so as to provide that after a consideration of respective parental incomes, that child support will be related, to the extent practicable, to the level of living which such children would enjoy if they were living in a household with both parents present.
(c) The guidelines promulgated under the provisions of this section shall take into consideration the financial contributions of both parents. The Legislature recognizes that expenditures in households are made in aggregate form and that total family income is pooled to determine the level at which the family can live. The guidelines shall provide for examining the financial contributions of both parents in relationship to total income, so as to establish and equitably apportion the child support obligation. Under the guidelines, the child support obligation of each parent will vary proportionately according to their individual incomes.
(d) The guidelines shall be structured so as to take into consideration any preexisting support orders which imposeadditional duties of support upon an obligor outside of the instant case and shall provide direction in cases involving split or shared custody.
(e) The guidelines shall have application to cases of divorce, paternity, actions for support and modifications thereof.
(f) In promulgating the legislative rule provided for under the provisions of this section, the director shall be directed by the following legislative findings:
(1) That amounts to be fixed as child support should not include awards for alimony, notwithstanding the fact that any amount fixed as child support will impact upon the living conditions of custodial parents;
(2) That parental expenditures on children represent a relatively constant percentage of family consumption as family consumption increases, so that as family income increases, the family's level of consumption increases, and the children should share in and benefit from this increase;
(3) That parental expenditures on children represent a declining proportion of family income as the gross income of the family increases, so that while total dollar outlays for children have a positive relationship to the family's gross income, the proportion of gross family income allotted for the children has a negative relationship to gross income;
(4) That expenditures on children vary according to the number of children in the family, and as the number of childrenin the family increases, the expenditures for the children as a group increase and the expenditures on each individual child decrease; so that due to increasing economies of scale and the increased sharing of resources among family members, spending will not increase in direct proportion to the number of children;
(5) That as children grow older, expenditures on children increase, particularly during the teenage years.
(g) The director of the child advocate office shall review the guidelines at least once every four years to ensure that their application results in the determination of appropriate child support awards. Such four-year period shall begin on the first day of July, one thousand nine hundred eighty-nine. Upon completion of the four-year review period ending on the thirtieth day of June, one thousand nine hundred ninety-three, after consulting with the supreme court of appeals, circuit judges and family law masters, the director shall propose for promulgation a legislative rule in accordance with the provisions of article three, chapter twenty-nine-a of this code which amends and updates the guidelines required by this section. Such proposed amended rule, shall include, but not be limited to, provisions regarding the following subject matters:
(1) In determining the child support obligation of a parent whose employment income consists, in part, of compensation for overtime hours worked, the guidelines shall provide for a child support order which includes a consideration of such overtime compensation, balancing the interest of children to share in theresources of such parent with the interest of the parent in not being penalized for accepting overtime work. Any formula which is used to compute anticipated overtime compensation shall allow for the irregular nature of such compensation.
(2) (1) In determining the child support obligation of a parent whose employment income consists of compensation for seasonal employment, the guidelines shall provide for discretionary use of alternative payment schedules which may vary the periodic amounts required to be paid.
(3) (2) In determining the child support obligation of a parent whose support obligation extends to the children of more than one family, the guidelines shall be structured so as to equitably provide for all children to whom the obligor owes a duty of support.



NOTE: The purpose of this bill is to remove the requirement that overtime wages are to be considered in establishing child support obligations.

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