H. B. 4528
(By Delegates McGraw and Pulliam)
[Introduced February 23, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections thirteen and fifteen,
article two, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to domestic relations; divorce, annulment and
separate maintenance; and requiring the custodial parent to
account for expenditures of child support.
Be it enacted by the Legislature of West Virginia:
That sections thirteen and fifteen, article two, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-13. Temporary relief during pendency of action for
divorce, annulment or separate maintenance.
(a) At the time of the filing of the complaint or at any time after the commencement of an action for divorce, annulment
or separate maintenance under the provisions of this article and
upon motion for temporary relief, notice of hearing and hearing,
the court may order all or any portion of the following temporary
relief, which order shall govern the marital rights and
obligations of the parties during the pendency of the action:
(1) The court may require either party to pay temporary
alimony in the form of periodic installments, or a lump sum, or
both, for the maintenance of the other party.
(2) The court may provide for the custody of minor children
of the parties subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances.
(3) In every action where visitation is awarded, the court
shall specify a schedule for visitation by the noncustodial
parent: Provided, That with respect to any existing order of
temporary relief which provides for visitation but which does not
provide a schedule for visitation by the noncustodial parent,
upon motion of any party, notice of hearing and hearing, the
court shall issue an order which provides a specific schedule for
visitation by the noncustodial parent.
(4) When the action involves a minor child or children, the
court shall require either party to pay temporary child support in the form of periodic installments for the maintenance of the
minor children of the parties in accordance with section fifteen,
article one-b, chapter forty-eight-a of this code.
(5) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article.
(6) (A) The court may compel either party to pay attorney's
fees and court costs reasonably necessary to enable the other
party to prosecute or defend the action in the trial court. The
question of whether or not a party is entitled to temporary
alimony is not decisive of that party's right to a reasonable
allowance of attorney's fees and court costs. An order for
temporary relief awarding attorney fees and court costs may be
modified at any time during the pendency of the action, as the
exigencies of the case or equity and justice may require,
including, but not limited to, a modification which would require
full or partial repayment of fees and costs by a party to the
action to whom or on whose behalf payment of such fees and costs
was previously ordered. If an appeal be taken or an intention to
appeal be stated, the court may further order either party to pay
attorney fees and costs on appeal.
(B) When it appears to the court that a party has incurred
attorney fees and costs unnecessarily because the opposing party
has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention
from valid claims or defenses asserted in good faith, the court
may order the offending party, or his or her attorney, or both,
to pay reasonable attorney fees and costs to the other party.
(7) As an incident to requiring the payment of temporary
alimony, the court may order either party to continue in effect
existing policies of insurance covering the costs of health care
and hospitalization of the other party. If there is no such
existing policy or policies, the court may order that such health
care insurance coverage be paid for by a party if the court
determines that such health care coverage is available to that
party at a reasonable cost. Payments made to an insurer pursuant
to this subdivision, either directly or by a deduction from
wages, may be deemed to be temporary alimony.
(8) The court may grant the exclusive use and occupancy of
the marital home to one of the parties during the pendency of the
action, together with all or a portion of the household goods,
furniture and furnishings, reasonably necessary for such use and
occupancy. The court may require payments to third parties in
the form of home loan installments, land contract payments, rent,
payments for utility services, property taxes and insurance
coverage. When such third party payments are ordered, the court
shall specify whether such payments or portions of payments are
temporary alimony, temporary child support, a partial distribution of marital property or an allocation of marital
debt: Provided, That if the court does not set forth in the
order that a portion of such payments is to be deemed temporary
child support, then all such payments made pursuant to this
subdivision shall be deemed to be temporary alimony: Provided,
however, That the court may order such payments to be made
without denominating them either as temporary alimony or
temporary child support, reserving such decision until such time
as the court determines the interests of the parties in marital
property and equitably divides the same: Provided further, That
at the time the court determines the interests of the parties in
marital property and equitably divides the same, the court may
consider the extent to which payments made to third parties under
the provisions of this subdivision have affected the rights of
the parties in marital property and may treat such payments as a
partial distribution of marital property notwithstanding the fact
that such payments have been denominated temporary alimony or
temporary child support or not so denominated under the
provisions of this subdivision. If the payments are not
designated in an order and the parties have waived any right to
receive alimony, the court may designate the payments upon motion
by any party. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and
a third party, or affect the rights and liabilities of either party or a third party under the terms of such contract.
(9) As an incident to requiring the payments of temporary
alimony, the court may grant the exclusive use and possession of
one or more motor vehicles to either of the parties during the
pendency of the action. The court may require payments to third
parties in the form of automobile loan installments or insurance
coverage, and any such payments made pursuant to this subdivision
shall be deemed to be temporary alimony: Provided, That the
court may order such payments to be made without denominating
them as temporary alimony, reserving such decision until such
time as the court determines the interests of the parties in
marital property and equitably divides the same: Provided,
however, That at the time the court determines the interests of
the parties in marital property and equitably divides the same,
the court may consider the extent to which payments made to third
parties under the provisions of this subdivision have affected
the rights of the parties in marital property and may treat such
payments as a partial distribution of marital property
notwithstanding the fact that such payments have been denominated
temporary alimony or not so denominated under the provisions of
this subdivision. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and
a third party or affect the rights and liabilities of either
party or a third party under the terms of such contract.
(10) When the pleadings include a specific request for
specific property or raise issues concerning the equitable
division of marital property, the court may enter such order as
is reasonably necessary to preserve the estate of either or both
of the parties, including the imposition of a constructive trust,
so that such property be forthcoming to meet any order which may
be made in the action, and may compel either party to give
security to abide such order, or may require the property in
question to be delivered into the temporary custody of a third
party. The court may further order either or both of the parties
to pay the costs and expenses of maintaining and preserving the
property of the parties during the pendency of the action:
Provided, That at the time the court determines the interests of
the parties in marital property and equitably divides the same,
the court may consider the extent to which payments made for the
maintenance and preservation of property under the provisions of
this subdivision have affected the rights of the parties in
marital property and may treat such payments as a partial
distribution of marital property. The court may release all or
any part of such protected property for sale and substitute all
or a portion of the proceeds of the sale for such property.
(11) Unless a contrary disposition is ordered pursuant to
other provisions of this section, then upon the motion of a
party, the court may compel a party to deliver to the moving party any of his or her separate estate which may be in the
possession or control of the respondent party and may make any
further order that is necessary to prevent either party from
interfering with the separate estate of the other party.
(12) The court may enjoin the offending party from molesting
or interfering with the other, or otherwise imposing any
restraint on the personal liberty of the other, or interfering
with the custodial or visitation rights of the other. This order
may permanently enjoin the offending party from entering the
school, business or place of employment of the other for the
purpose of molesting or harassing the other; or from contacting
the other, in person or by telephone, for the purpose of
harassment or threats; or from harassing or verbally abusing the
other in a public place. Any order entered by the court to
protect a party from abuse may grant the relief provided in
article two-a of this chapter.
(b) In ordering temporary relief under the provisions of
this section, the court shall consider the financial needs of the
parties, the present income of each party from any source, their
income-earning abilities and the respective legal obligations of
each party to support himself or herself and to support any other
persons. Except in extraordinary cases supported by specific
findings set forth in the order granting relief, payments of
temporary alimony and temporary child support are to be made from a party's income and not from the corpus of a party's separate
estate, and an award of such relief shall not be disproportionate
to a party's ability to pay as disclosed by the evidence before
the court: Provided, That child support shall be established in
accordance with support guidelines promulgated pursuant to
section eight, article thirteen, chapter forty-eight-a of this
code.
(c) At any time after a party is abandoned or deserted or
after the parties to a marriage have lived separate and apart in
separate places of abode without any cohabitation, the party
abandoned or either party living separate and apart may apply for
relief pursuant to this section by instituting an action for
divorce as provided in section ten of this article, alleging that
the plaintiff reasonably believes that the period of abandonment
or of living separate and apart will continue for the period
prescribed by the applicable provisions of section four of this
article. If the period of abandonment or living separate and
apart continues for the period prescribed by the applicable
provisions of section four of this article, the divorce action
may proceed to a hearing as provided in sections twenty-four and
twenty-five of this article without a new complaint being filed:
Provided, That the party desiring to proceed to a hearing shall
give the opposing party at least twenty days' notice of the time,
place and purpose of the hearing, unless the opposing party files a waiver of notice of further proceedings, signed by the opposing
party. If such notice is required to be served, it shall be
served in the same manner as a complaint, regardless of whether
the opposing party has appeared or answered.
(d) To facilitate the resolution of issues arising at a
hearing for temporary relief, the court may, or upon the motion
of either party shall, order the parties to comply with the
disclosure requirements set forth in section thirty-three of this
article prior to the hearing for temporary relief. The form for
this disclosure shall substantially comply with the form
promulgated by the supreme court of appeals, pursuant to said
section. If either party fails to timely file a complete
disclosure as required by this section or as ordered by the
court, the court may accept the statement of the other party as
accurate.
(e) An ex parte order granting all or part of the relief
provided for in this section may be granted without written or
oral notice to the adverse party if:
(1) It appears from specific facts shown by affidavit or by
the verified complaint that immediate and irreparable injury,
loss or damage will result to the applicant before the adverse
party or such party's attorney can be heard in opposition. The
potential injury, loss or damage may be anticipated when the
following conditions exist: Provided, That the following list of conditions is not exclusive:
(A) There is a real and present threat of physical injury to
the applicant at the hands or direction of the adverse party;
(B) The adverse party is preparing to quit the state with a
minor child or children of the parties, thus depriving the court
of jurisdiction in the matter of child custody;
(C) The adverse party is preparing to remove property from
the state or is preparing to transfer, convey, alienate, encumber
or otherwise deal with property which could otherwise be subject
to the jurisdiction of the court and subject to judicial order
under the provisions of this section or section fifteen of this
article; and
(2) The moving party or his or her attorney certifies in
writing any effort that has been made to give the notice and the
reasons supporting his or her claim that notice should not be
required.
(f) Every ex parte order granted without notice shall be
endorsed with the date and hour of issuance; shall be filed
forthwith in the circuit clerk's office and entered of record;
and shall set forth the finding of the court that unless the
order is granted without notice there is probable cause to
believe that existing conditions will result in immediate and
irreparable injury, loss or damage to the moving party before the
adverse party or his or her attorney can be heard in opposition. The order granting ex parte relief shall fix a time for a hearing
for temporary relief to be held within a reasonable time, not to
exceed twenty days, unless before the time so fixed for hearing,
such hearing is continued for good cause shown or with the
consent of the party against whom the ex parte order is directed.
The reasons for the continuance shall be entered of record.
Within the time limits described herein, when an ex parte order
is made, a motion for temporary relief shall be set down for
hearing at the earliest possible time and shall take precedence
of all matters except older matters of the same character. If
the party who obtained the ex parte order fails to proceed with
a motion for temporary relief, the court shall set aside the ex
parte order. At any time after ex parte relief is granted, and
on two days' notice to the party who obtained such relief or on
such shorter notice as the court may direct, the adverse party
may appear and move the court to set aside or modify the ex parte
order on the grounds that the effects of such order are onerous
or otherwise improper. In such event, the court shall proceed to
hear and determine such motion as expeditiously as the ends of
justice require.
(g) No order granting temporary relief may be the subject of
an appeal or a petition for review.
(h) (1) Unless the best interests of the child require
otherwise, every temporary order which provides for the custody of a minor child of the parties shall also provide for the
following:
(A) The custodial parent shall be required to authorize
school authorities in the school in which the child is enrolled
to release to the noncustodial parent copies of any and all
information concerning the child which would otherwise be
properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after
receipt, to transmit to the noncustodial parent a copy of the
child's grades or report card and copies of any other reports
reflecting the status or progress of the child;
(C) The custodial parent shall be required, when
practicable, to arrange appointments for parent-teacher
conferences at a time when the noncustodial parent can be
present;
(D) The custodial parent shall be required to authorize
medical providers to release to the noncustodial parent copies of
any and all information concerning medical care provided to the
child which would otherwise be properly released to the custodial
parent;
(E) The custodial parent shall be required to promptly
inform the noncustodial parent of any illness of the child which
requires medical attention; or, if the child is in the actual
physical custody of the noncustodial parent during a period of visitation, the noncustodial parent shall be required to promptly
inform the custodial parent of any illness of the child which
requires medical attention;
(F) The custodial parent shall be required to consult with
the noncustodial parent prior to any elective surgery being
performed on the child; and in the event emergency medical
procedures are undertaken for the child which requires the
parental consent of either parent, if time permits, the other
parent shall be consulted, or if time does not permit such
consultation, the other parent shall be promptly informed of such
emergency medical procedures: Provided, That the same duty to
inform the custodial parent applies to the noncustodial parent
in the event that the emergency medical procedures are required
while the child is in the physical custody of the noncustodial
parent during a period of visitation: Provided, however, That
nothing contained herein shall be deemed to alter or amend the
law of this state as it otherwise pertains to physicians or
health care facilities obtaining parental consent prior to
providing medical care or performing medical procedures; and
(G) The custodial parent, resident parent, legal guardian or
caretaker relative having custody of or responsibility for the
child or children who receives payment under the provisions of
this section, shall provide a written report on a monthly basis
to the obligor describing in detail a list of disbursements for the payment received for the previous month: Provided, That this
written report is not required if the obligor is in arrears on
support obligations. Any custodial parent, resident parent,
legal guardian or caretaker relative having custody of or
responsibility for the child or children who receives payment
under this section and refuses to file or files incomplete
reports for more than two consecutive months, is subject to
modification of his or her support pursuant to the provisions of
section fifteen, article two, chapter forty-eight of the code of
West Virginia.
(2) In the event a custodial parent shall fail or refuse to
authorize the release of school or medical records as provided
for by subdivision (1) of this subsection, then upon the ex parte
application of the noncustodial parent, the family law master
shall prepare an order for entry by the circuit court which
appoints the family law master as a special commissioner
authorized to execute a consent for the release of such records,
and direct it to the appropriate school authorities or medical
providers.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, for the maintenance of the other party. Payments of alimony are to
be ordinarily made from a party's income, but when the income is
not sufficient to adequately provide for those payments, the
court may, upon specific findings set forth in the order, order
the party required to make those payments to make them from the
corpus of his or her separate estate. An award of alimony shall
not be disproportionate to a party's ability to pay as disclosed
by the evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce
or granting of decree of separate maintenance, the court may
further order all or any part of the following relief:
(1) The court may provide for the custody of minor children
of the parties, subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances. In every action where visitation is awarded, the
court shall specify a schedule for visitation by the noncustodial
parent: Provided, That with respect to any existing order which
provided for visitation but which does not provide a specific
schedule for visitation by the noncustodial parent, upon motion
of any party, notice of hearing and hearing, the court shall
issue an order which provides a specific schedule of visitation
by the noncustodial parent;
(2) When the action involves a minor child or children, the court shall require either party to pay child support in the form
of periodic installments for the maintenance of the minor
children of the parties in accordance with support guidelines
promulgated pursuant to section one, article one-b, chapter
forty-eight-a of this code. Payments of child support are to be
ordinarily made from a party's income, but in cases when the
income is not sufficient to adequately provide for those
payments, the court may, upon specific findings set forth in the
order, order the party required to make those payments to make
them from the corpus of his or her separate estate;
(3) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or
child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of
health care and hospitalization of the other party: Provided,
That if the other party is no longer eligible to be covered by
such insurance because of the granting of an annulment or
divorce, the court may require a party to substitute such
insurance with a new policy to cover the other party or may
consider the prospective cost of such insurance in awarding
alimony to be paid in periodic installments. Payments made to an
insurer pursuant to this subdivision, either directly or by a deduction from wages, shall be deemed to be alimony or
installment payments for the distribution of marital property, in
such proportion as the court shall direct: Provided, however,
That if the court does not set forth in the order that a portion
of such payments is to be deemed installment payments for the
distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony:
Provided further, That the designation of insurance coverage as
alimony under the provisions of this subdivision shall not, in
and of itself, give rise to a subsequent modification of the
order to provide for alimony other than insurance for covering
the costs of health care and hospitalization;
(5) The court may grant the exclusive use and occupancy of
the marital home to one of the parties, together with all or a
portion of the household goods, furniture and furnishings
reasonably necessary for such use and occupancy. Such use and
occupancy shall be for a definite period, ending at a specific
time set forth in the order, subject to modification upon the
petition of either party. Except in extraordinary cases
supported by specific findings set forth in the order granting
relief, a grant of the exclusive use and occupancy of the marital
home shall be limited to those situations when such use and
occupancy is reasonably necessary to accommodate the rearing of
minor children of the parties. The court may require payments to third parties in the form of home loan installments, land
contract payments, rent, property taxes and insurance coverage if
the amount of such coverage is reduced to a fixed monetary amount
set forth in the court's order. When such third party payments
are ordered, the court shall specify whether such payments or
portions of payments are alimony, child support, a partial
distribution of marital property or an allocation of marital
debt: Provided, That if the court does not set forth in the
order that a portion of such payments is to be deemed child
support or installment payments for the distribution of marital
property, then all such payments made pursuant to this
subdivision shall be deemed to be alimony. When such third party
payments are ordered, the court shall specify whether such
payments or portions of payments are alimony, child support, a
partial distribution of marital property or an allocation of
marital debt. If the payments are not designated in an order and
the parties have waived any right to receive alimony, the court
may designate the payments upon motion by any party. Nothing
contained in this subdivision shall abrogate an existing contract
between either of the parties and a third party or affect the
rights and liabilities of either party or a third party under the
terms of such contract;
(6) As an incident to requiring the payment of alimony, the
court may grant the exclusive use and possession of one or more motor vehicles to either of the parties. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable
rates, and any such payments made pursuant to this subdivision
for the benefit of the other party shall be deemed to be alimony
or installment payments for the distribution of marital property,
as the court may direct. Nothing contained in this subdivision
shall abrogate an existing contract between either of the parties
and a third party or affect the rights and liabilities of either
party or a third party under the terms of such contract;
(7) When the pleadings include a specific request for
specific property or raise issues concerning the equitable
division of marital property as defined in section one of this
article, the court shall order such relief as may be required to
effect a just and equitable distribution of the property and to
protect the equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to
other provisions of this section, then upon the motion of either
party, the court may compel the other party to deliver to the
moving party any of his or her separate estate which may be in
the possession or control of the respondent party and may make
such further order as is necessary to prevent either party from
interfering with the separate estate of the other;
(9) When allegations of abuse have been proven, the court shall enjoin the offending party from molesting or interfering
with the other, or otherwise imposing any restraint on the
personal liberty of the other or interfering with the custodial
or visitation rights of the other. Such order may permanently
enjoin the offending party from entering the school, business or
place of employment of the other for the purpose of molesting or
harassing the other; or from contacting the other, in person or
by telephone, for the purpose of harassment or threats; or from
harassing or verbally abusing the other in a public place;
(10) The court may order either party to take necessary
steps to transfer utility accounts and other accounts for
recurring expenses from the name of one party into the name of
the other party or from the joint names of the parties into the
name of one party. Nothing contained in this subdivision shall
affect the liability of the parties for indebtedness on any such
account incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the court shall
retain jurisdiction of the case and may order all or any portion
of the relief provided for in subsections (a) and (b) of this
section which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state
upon constructive service of process and personal jurisdiction is
thereafter obtained of the defendant in such case, the court may
order all or any portion of the relief provided for in subsections (a) and (b) of this section which has been demanded
or prayed for in the pleadings.
(e) After the entry of an order pursuant to the provisions
of this section, the court may revise the order concerning the
maintenance of the parties and enter a new order concerning the
same, as the circumstances of the parties may require.
The court may also from time to time afterward, upon motion
of either of the parties and upon proper service, revise such
order to grant relief pursuant to subdivision (9), subsection (b)
of this section, and enter a new order concerning the same, as
the circumstances of the parties and the benefit of children may
require. The court may also from time to time afterward, upon
the motion of either of the parties or other proper person having
actual or legal custody of the minor child or children of the
parties, revise or alter the order concerning the custody and
support of the children, and make a new order concerning the
same, issuing it forthwith, as the circumstances of the parents
or other proper person or persons and the benefit of the children
may require: Provided, That all orders modifying child support
shall be in conformance with the requirements of support
guidelines promulgated pursuant to article one-b, chapter
forty-eight-a of this code: Provided, however, That an order
providing for child support payments may be revised or altered
for the reason, inter alia, that the existing order provides for child support payments in an amount that is less than eighty-five
percent or more than one hundred fifteen percent of the amount
that would be required to be paid under the child support
guidelines promulgated pursuant to the provisions of said
section.
In granting relief under this subsection, the court may,
when other means are not conveniently available, alter any prior
order of the court with respect to the distribution of marital
property, if such property is still held by the parties, and if
necessary to give effect to a modification of alimony, child
support or child custody or necessary to avoid an inequitable or
unjust result which would be caused by the manner in which the
modification will affect the prior distribution of marital
property.
(f) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the death of the payor party or to cease in such
event. When alimony is to be paid pursuant to the terms of a
separation agreement which does not state whether the payment of
alimony is to continue beyond the death of the payor party or is
to cease, or when the parties have not entered into a separation
agreement and alimony is to be awarded, the court shall
specifically state as a part of its order whether such payments of alimony are to be continued beyond the death of the payor
party or cease.
(g) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the remarriage of the payee party or to cease in
such event. When alimony is to be paid pursuant to the terms of
a separation agreement which does not state whether the payment
of alimony is to continue beyond the remarriage of the payee
party or is to cease, or when the parties have not entered into
a separation agreement and alimony is to be awarded, the court
shall specifically state as a part of its order whether such
payments of alimony are to be continued beyond the remarriage of
the payee party or cease.
(h) In addition to the disclosure requirements set forth in
section thirty-three of this article, the court may order
accounts to be taken as to all or any part of marital property or
the separate estates of the parties and may direct that the
accounts be taken as of the date of the marriage, the date upon
which the parties separated or any other time in assisting the
court in the determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in
determining the amount of alimony, if any, to be awarded under
the provisions of this section, the court shall consider and compare the fault or misconduct of either or both of the parties
and the effect of such fault or misconduct as a contributing
factor to the deterioration of the marital relationship.
However, alimony shall not be awarded when both parties prove
grounds for divorce and are denied a divorce, nor shall an award
of alimony under the provisions of this section be ordered which
directs the payment of alimony to a party determined to be at
fault, when, as a grounds granting the divorce, such party is
determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime
which is a felony, subsequent to the marriage if such conviction
has become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the
payment of alimony or child support, if the court anticipates the
payment of such alimony or child support or any portion thereof
to be paid out of "disposable retired or retainer pay" as that
term is defined in 10 U.S.C. §1408, relating to members or former
members of the uniformed services of the United States, the court
shall specifically provide for the payment of an amount,
expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of the
payor party to the payee party.
(k) Any order which provides for the custody or support of
a minor child shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the
support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support; and
(9) When child support guidelines are not followed, a
specific written finding pursuant to section fourteen, article
one-b, chapter forty-eight-a of this code.
(l) (1) Unless the best interests of the child require
otherwise, every final order and every modification order which
provides for the custody of a minor child of the parties shall
also provide for the following:
(A) The custodial parent shall be required to authorize
school authorities in the school in which the child is enrolled
to release to the noncustodial parent copies of any and all
information concerning the child which would otherwise be properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after
receipt, to transmit to the noncustodial parent a copy of the
child's grades or report card and copies of any other reports
reflecting the status or progress of the child;
(C) The custodial parent shall be required, when
practicable, to arrange appointments for parent-teacher
conferences at a time when the noncustodial parent can be
present;
(D) The custodial parent shall be required to authorize
medical providers to release to the noncustodial parent copies of
any and all information concerning medical care provided to the
child which would otherwise be properly released to the custodial
parent;
(E) The custodial parent shall be required to promptly
inform the noncustodial parent of any illness of the child which
requires medical attention; or, if the child is in the actual
physical custody of the noncustodial parent during a period of
visitation, the noncustodial parent shall be required to promptly
inform the custodial parent of any illness of the child which
requires medical attention;
(F) The custodial parent shall be required to consult with
the noncustodial parent prior to any elective surgery being
performed on the child; and in the event emergency medical procedures are undertaken for the child which require the
parental consent of either parent, if time permits, the other
parent shall be consulted, or if time does not permit such
consultation, the other parent shall be promptly informed of such
emergency medical procedures: Provided, That the same duty to
inform the custodial parent applies to the noncustodial parent in
the event that the emergency medical procedures are required
while the child is in the physical custody of the noncustodial
parent during a period of visitation: Provided, however, That
nothing contained herein shall be deemed to alter or amend the
law of this state as it otherwise pertains to physicians or
health care facilities obtaining parental consent prior to
providing medical care or performing medical procedures; and
(G) The custodial parent, resident parent, legal guardian or
caretaker relative having custody of or responsibility for the
child or children who receives payment under the provisions of
this section, shall provide a written report on a monthly basis
to the obligor describing in detail a list of disbursements for
the payment received for the previous month: Provided, That this
written report is not required if the obligor is in arrears on
support obligations. Any custodial parent, resident parent,
legal guardian or caretaker relative having custody of or
responsibility for the child or children who receives payment
under this section and refuses to file or files incomplete reports for more than two consecutive months, is subject to
modification of his or her support pursuant to the provisions of
section fifteen, article two, chapter forty-eight of the code of
West Virginia.
(2) In the event a custodial parent shall fail or refuse to
authorize the release of school or medical records as provided
for by subdivision (1) of this subsection, then upon the ex parte
application of the noncustodial parent, the family law master
shall prepare an order for entry by the circuit court which
appoints the family law master as a special commissioner
authorized to execute a consent for the release of such records
and direct it to the appropriate school authorities or medical
providers.
NOTE: The purpose of this bill is to require the custodial
parent in a domestic relations case to account for the
expenditure of child support received.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.