COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 652
(By Senator Wooton)
____________
[Originating in the Committee on Judiciary;
reported April 4, 2001.]
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A BILL to amend and reenact section one hundred four, article
eight, chapter forty-eight of the code of West Virginia,
nineteen hundred thirty-one, as amended; to amend article nine
of said chapter, by adding thereto a new section, designated
section six hundred five; to amend and reenact section one
hundred five, article twelve, of said chapter, and to further
amend said article by adding thereto a new section, designated
section fifteen; to amend and reenact section four hundred
eight, article fourteen of said chapter; to amend and reenact
section one hundred one, article twenty-four of said chapter;
to amend and reenact section seventeen, article one, chapter
fifty-two of said code; and to amend and reenact sections
eleven and twenty-eight-a, article one, chapter fifty-nine of
said code; all relating to domestic relations proceedings and
child support.
Be it enacted by the Legislature of West Virginia:
That section one hundred four, article eight, chapter forty-
eight of the code of West Virginia, nineteen hundred thirty-one, as
amended, be amended and reenacted; that article nine of said
chapter be amended by adding thereto a new section, designated six
hundred five; that section one hundred five, article twelve, of
said chapter be amended and reenacted; and that said article be
further amended and reenacted by adding thereto a new section,
designated section fifteen; that section four hundred eight,
article fourteen of said chapter be amended and reenacted; that
section one hundred one, article twenty-four of said chapter be
amended and reenacted; that section seventeen, article one, chapter
fifty-two of said code be amended and reenacted; and that sections
eleven and twenty-eight-a of said article be amended and
reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 8. SPOUSAL SUPPORT.
§48-8-104. Effect of fault or misconduct on award of spousal
support.
(a)In determining whether spousal support is to be awarded, or
in determining the amount of spousal support, if any, to be
awarded, 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, spousal support shall not be
awarded when both parties prove grounds for divorce and are denied
a divorce, nor shall an award of spousal support under the
provisions of this section be ordered which directs the payment of spousal support 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.
(b) At any time after the entry of an order pursuant to the
provisions of this section, the court may, upon motion of either
party, revise or alter the order concerning the maintenance of the
parties, or either of them, and make a new order concerning the
same, issuing it forthwith, as the altered circumstances or needs
of the parties may render necessary to meet the ends of justice.
ARTI
CLE 9. CUSTODY OF CHILDREN.
§48-9-605. Parent education and mediation fund.
There is hereby created in the state treasury a special
revenue account, designated the "parent education and mediation
fund". The moneys of the fund shall be expended by the
administrator of the supreme court of appeals for parent education
and mediation programs.
ARTICLE 12. MEDICAL SUPPORT.
§48-12-15. Enforcement of medical support.
(a) "National Medical Support Notice: means that written
notice which is described in 29 U.S.C. §1169(a)(5)(C) and 42 U.S.C.
§666(a)(19).
(b) All child support orders which include a provision for health care coverage of a child shall be enforced through the use
of the National Medical Support Notice, as set forth in 43 U.S.C.
§666(a)(19) and 29 U.S.C. §1169(a)(5)(Cd) et seq.
(c) Unless alternative coverage is allowed for in any order of
the court in any case in which a parent is required under a child
support order to provide such health care coverage and the employer
of the parent is known to the IV-D agency, the IV-D agency shall
use the National Medical Support Notice to transfer notice of the
provision for the health care coverage of the child to the
employer.
(d) Within twenty business days after the date of the National
Medical Support Notice, the employer shall transfer the Notice,
excluding the severable employer withholding notice described in
section 401(b)(2)(C) of the Child Support Performance and Incentive
Act of 1998, to the appropriate plan providing any such health care
coverage for which the child is eligible.
(e) In a case in which the parent is a newly hired employee
entered in the State Directory of New Hires pursuant to chapter
forty-eight-a, article two, section thirty-four of this code, and
the case is open with the child support enforcement division, the
agency shall provide, where appropriate, the National Medical
Support Notice, together with an income withholding notice issued
pursuant to chapter forty-eight-a, article five, section three of
this code, within two days after the date of the entry of the
employee in the directory.
(f) In any case in which the employment of the parent with any
employer who has received a National Medical Support Notice is
terminated, the employer is required to notify the IV-D agency of the termination.
§48-12-105. Notice to insurer or employer.
The custodian for the child or the IV-D agency in appropriate
cases shall send the insurer or the obligated parent's employer the
children's address and notice that the custodian will be submitting
claims on behalf of the children National Medical Support Notice.
Upon receipt of such notice, or an order for insurance coverage
under this section, the obligated parent's employer, multiemployer
trust or union shall, upon the request of the custodian for the
child, release information on the coverage for the children,
including the name of the insurer.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-408. Determination of amounts to be withheld.
Notwithstanding any other provision of this code to the
contrary 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 may 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 arrearage is 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) Prior to the first day of January, two thousand one, when
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) Prior to the first day of January, two thousand one, when
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 or
dependent 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) Beginning the first day of January, two thousand one,
when 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 forty 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 fifty percent of the obligor's
disposable earnings for that week.
(5) Beginning the first day of January, two thousand one,
when a part 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 forty-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 fifty-five percent of the
obligor's disposable earnings for that week.
(6) Where the obligor is having amounts withheld for the
current month's obligation for any child, then in addition to the
percentage limitations set forth in subdivisions (2) and (3) of
this subsection, it shall be a further limitation that when the
current month's obligation plus arrearages are being withheld from
salaries or wages in no case shall the total amounts withheld for
the current month's obligation plus arrearage exceed the amounts
withheld for the current obligation by an amount greater than
twenty-five percent of the current monthly support obligation.
(7) Where the obligor is not having amounts withheld for the current month's obligation for any child, then in addition to the
percentage limitations set forth in subdivisions (2) and (3) of
this subsection, it shall be a further limitation that the
arrearages being withheld from salaries or wages in no case shall
exceed the total amount that the obligor would be required to pay
as a current monthly obligation pursuant to the child support
guidelines and other provisions article thirteen of this chapter
for the total number of children for whom the obligor is in
arrears.
(7) (8) 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.
(8) (9) The bureau for child support enforcement has the
authority to prorate the current support obligation in accordance
with the pay cycle of the source of income. This prorated current
support obligation shall be known as the "adjusted support
obligation." The current support obligation or the adjusted
support obligation is the amount, if unpaid, on which interest will
be charged.
(9) (10) When an obligor acts so as to purposefully minimize
his or her income and to thereby circumvent the provisions of this
part 4 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 which limit the amount to
be withheld from disposable earnings.
ARTICLE 24. ESTABLISHMENT OF PATERNITY.
§48-24-101. Paternity proceedings.
(a) A civil action to establish the paternity of a child and
to obtain an order of support for the child may be instituted, by
verified complaint, in the circuit court of the county where the
child resides: Provided, That if such venue creates a hardship for
the parties, or either of them, or if judicial economy requires,
the court may transfer the action to the county where either of the
parties resides.
(b) A "paternity proceeding" is a summary proceeding,
equitable in nature and within the domestic relations jurisdiction
of the courts, wherein a circuit court upon the petition of the
state or another proper party may intervene to determine and
protect the respective personal rights of a child for whom
paternity has not been lawfully established, of the mother of the
child and of the putative father of the child. The parties to a
paternity proceeding are not entitled to a trial by jury.
(c) The sufficiency of the statement of the material
allegations in the complaint set forth as grounds for relief and
the grant or denial of the relief prayed for in a particular case
shall rest in the sound discretion of the court, to be exercised by
the court according to the circumstances and exigencies of the
case, having due regard for precedent and the provisions of the
statutory law of this state.
(d) A decree or order made and entered by a court in a
paternity proceeding shall include a determination of the filial
relationship, if any, which exists between a child and his or her putative father, and, if such relationship is established, shall
resolve dependent claims arising from family rights and obligations
attendant to such filial relationship.
(e) A paternity proceeding may be brought by any of the
following persons:
(1) An unmarried woman with physical or legal custody of a
child to whom she gave birth;
(2) A married woman with physical or legal custody of a child
to whom she gave birth, if the complaint alleges that:
(A) The married woman lived separate and apart from her
husband preceding the birth of the child;
(B) The married woman did not cohabit with her husband at any
time during such separation and that such separation has continued
without interruption; and
(C) The respondent, rather than her husband, is the father of
the child;
(3) The state of West Virginia, including the bureau for child
support enforcement;
(4) Any person who is not the mother of the child, but who has
physical or legal custody of the child;
(5) The guardian or committee of the child;
(6) The next friend of the child when the child is a minor;
(7) By the child in his or her own right at any time after the
child's eighteenth birthday but prior to the child's twenty-first
birthday; or
(8) A man who believes he is the father of a child born out of
wedlock, when there has been no prior judicial determination of
paternity.
(F) A married woman who brings a paternity proceeding pursuant
to subdivision (2), subsection (e) of this section shall cause a
copy of the verified complaint to be served on her husband in
accordance with rule 4 of the rules of civil procedure.
(f) (g) Blood or tissue samples taken pursuant to the
provisions of this article may be ordered to be taken in such
locations as may be convenient for the parties so long as the
integrity of the chain of custody of the samples can be preserved.
(g) (h) A person who has sexual intercourse in this state
submits to the jurisdiction of the courts of this state for a
proceeding brought under this article with respect to a child who
may have been conceived by that act of intercourse. Service of
process may be perfected according to the rules of civil procedure.
(h) (i) When the person against whom the proceeding is brought
has failed to plead or otherwise defend the action after proper
service has been obtained, judgment by default shall be issued by
the court as provided by the rules of civil procedure.
CHAPTER 52. JURIES.
ARTICLE 1. PETIT JURIES.
§52-1-17. Reimbursement of jurors.
(a) A juror shall be paid mileage, at the rate set by the
commissioner of finance and administration for state employees, for
travel expenses from the juror's residence to the place of holding
court and return and shall be reimbursed for other expenses
incurred as a result of required attendance at sessions of the
court at a rate of between fifteen and forty dollars, set at the
discretion of the circuit court or the chief judge thereof, for
each day of required attendance. Such reimbursement shall be based on vouchers submitted to the sheriff. Such mileage and
reimbursement shall be paid out of the state treasury.
(b) When a jury in any case is placed in the custody of the
sheriff, he or she shall provide for and furnish the jury necessary
meals and lodging while they are in the sheriff's custody at a
reasonable cost to be determined by an order of the court; and the
meals and lodging shall be paid for out of the state treasury.
(c) Anytime a panel of prospective jurors has been required to
report to court for the selection of a petit jury in any scheduled
matter, the court shall, by specific provision in a court order,
assess a jury cost. In circuit court cases the jury cost shall be
the actual cost of the jurors' service, and in magistrate court
cases, the jury cost assessed shall be two hundred dollars. Such
costs shall be assessed against the parties as follows:
(1) In every criminal case, against the defendant upon
conviction, whether by plea, by bench trial or by jury verdict;
(2) In every civil case, against either party or prorated
against both parties, at the court's discretion, if the parties
settle the case or trial is to the bench; and
(3) In the discretion of the court, and only when fairness and
justice so require, a circuit court or magistrate court may forego
assessment of the jury fee, but shall set out the reasons therefor
in a written order: Provided, That a waiver of the assessment of
a jury fee in a case tried before a jury in magistrate court may
only be permitted after the circuit court, or the chief judge
thereof, has reviewed the reasons set forth in the order by the
magistrate and has approved such waiver.
(d)(1) The circuit or magistrate court clerk shall by the
tenth day of the month following the month of collection remit to
the sheriff state treasurer for deposit as described in subdivision
(2) of this subsection all jury costs collected, and the clerk and
the clerk's surety are liable therefor on the clerk's official bond
as for other money coming into the clerk's hands by virtue of the
clerk's office.
(2) The jury costs described in subdivision (1) of this
subsection shall upon receipt by the state treasurer be deposited
as follows: (A) One-half shall be deposited into the parent
education and mediation fund created in section six hundred five,
article eleven, chapter forty-eight of this code; and (B) one-half
shall be deposited into the domestic violence legal services fund
created in section four-c, article two-c, chapter forty-eight of
this code.
(e) The sheriff shall pay into the state treasury all jury
costs received from the court clerks, and the sheriff shall be held
to account in the sheriff's annual settlement for all such moneys.
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.
(a) 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:
(1) 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-five dollars: Provided, That the fee
for instituting an action for divorce shall be one hundred five
dollars;
(2) Beginning on and after the first day of July, one thousand
nine hundred ninety-nine, for instituting an action for divorce,
separate maintenance or annulment, one hundred twenty-five dollars;
and
(3) For petitioning for the modification of an order involving
child custody, child visitation, child support or spousal support,
seventy-five dollars; and
(4) For petitioning for an expedited modification of a child
support order, eighty-five dollars.
(b) In addition to the foregoing fees, the following fees
shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) 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, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) 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;
(6) For vacation or modification of a suggestee execution, one
dollar;
(7) For docketing and issuing an execution on a transcript of
judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of
error, appeal or removal to any other court, five dollars;
(9) 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;
(10) For each subpoena, on the part of either plaintiff or
defendant, to be paid by the party requesting the same, fifty
cents; and
(11) For additional service (plaintiff or appellant) where any
case remains on the docket longer than three years, for each
additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in any
criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five dollars; and
(2) In the case of any felony, sixty-five dollars.
(d) No such clerk shall be required to handle or accept for
disbursement any fees, cost or amounts, 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 divorce and other civil
actions and fees for services in criminal cases.
(a) Except for those payments to be made from amounts equaling
filing fees received for the institution of divorce actions as
prescribed in subsection (b) of this section, and except for those
payments to be made from amounts equaling filing fees received for the institution of actions for divorce, separate maintenance and
annulment as prescribed in subsection (c) of this section, for each
civil action instituted 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, the clerk of the court shall, at
the end of each month, pay into the funds or accounts described in
this subsection an amount equal to the amount set forth in this
subsection of every filing fee received for instituting such action
as follows:
(1) Into the regional jail and correctional facility
development fund in the state treasury established pursuant to the
provisions of section ten, article twenty, chapter thirty-one of
this code, the amount of sixty dollars; and
(2) Into the court security fund in the state treasury
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(b) For each divorce action instituted in the circuit court,
the clerk of the court shall, at the end of each month, report to
the supreme court of appeals, the number of actions filed by
persons unable to pay, and pay into the funds or accounts in this
subsection an amount equal to the amount set forth in this
subsection of every filing fee received for instituting such
divorce action as follows:
(1) Into the regional jail and correctional facility
development fund in the state treasury established pursuant to the
provisions of section ten, article twenty, chapter thirty-one of
this code, the amount of ten dollars;
(2) Into the special revenue account of the state treasury,
established pursuant to section twenty-four, article one, chapter
forty-eight of this code, an amount of thirty dollars;
(3) Into the family court fund established under section
twenty-three, article four, chapter forty-eight-a of this code, an
amount of fifty dollars; and
(4) Into the court security fund in the state treasury,
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(c) This subsection applies to filing fees paid after the
thirtieth day of June, one thousand nine hundred ninety-nine. For
each action for divorce, separate maintenance or annulment
instituted in the circuit court, the clerk of the court shall, at
the end of each month, pay into the funds or accounts in this
subsection an amount equal to the amount set forth in this
subsection of every filing fee received for instituting such
divorce action as follows:
(1) Into the regional jail and correctional facility
development fund in the state treasury established pursuant to the
provisions of section ten, article twenty, chapter thirty-one of
this code, the amount of ten dollars;
(2) Into the special revenue account of the state treasury,
established pursuant to section twenty-four, article one, chapter
forty-eight of this code, an amount of thirty dollars;
(3) Into the family court fund established under section
twenty-three, article four, chapter forty-eight-a of this code, an
amount of seventy dollars; and
(4) Into the court security fund in the state treasury, established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(d) Notwithstanding any provision of subsection (a) or (b) of
this section to the contrary, the clerk of the court shall, at the
end of each month, pay into the family court fund established under
section twenty-three, article four, chapter forty-eight-a of this
code an amount equal to the amount of every fee received for
petitioning for the modification of an order involving child
custody, child visitation, child support or spousal support as
determined by subdivision (3), subsection (a), section eleven of
this article and for petitioning for an expedited modification of
a child support order as determined by subdivision (3), subsection
(a), section eleven of this article.
(e) The clerk of the court from which a protective order is
issued shall, at the end of each month, pay into the family court
fund established under section twenty-three, article four, chapter
forty-eight-a of this code an amount equal to every fee received
pursuant to the provisions of subsection (k), section six, article
two-a, chapter forty-eight of this code.
(f) 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 and shall pay an amount equal to five
dollars of every such fee into the court security fund in the state
treasury established pursuant to the provisions of section
fourteen, article three, chapter fifty-one of this code.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§48-9-605 and §48-12-115 are new; therefore, strike-throughs
and underscoring have been omitted.