H. B. 4489


(By Delegates DeLong, Amores, Varner,

Caputo, Stemple, Perry and Trump)

[Introduced February 16, 2004 ; referred to the

Committee on the Judiciary.]
A BILL to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §48-11-108, relating to child support; lien upon proceeds of child support debtor's proceeds from a civil judgment, arbitration or workers' compensation case; determination of whether the prevailing party in the judgment, arbitration or workers' compensation case is a child support debtor; and the method of proceeds disbursement.

Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §48-11-108, to read as follows:
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-108. Lien on child support judgment debtor's net proceeds a settlement, judgment or award.

 (a) A judgment for child support entered and docketed with the clerk of the pertinent court of record shall be a lien against the net proceeds of any settlement negotiated prior or subsequent to the filing of a lawsuit, civil judgment, civil arbitration award or workers' compensation award and shall have priority over all other civil judgments unless otherwise provided by law. The lien shall stay the distribution of the net proceeds to the prevailing party until the child support judgment is satisfied. As used in this article "net proceeds" means any amount of money, in excess of two thousand dollars, payable to the prevailing party after attorney fees, witness fees, court costs, fees for health care providers and other costs related to the lawsuit or settlement are deducted from the award and "prevailing party" shall not include a partnership, corporation, government entity or minor child.
(b) Before distributing any net proceeds of a settlement, judgment or award to the prevailing party: (1) The prevailing party shall provide the attorney or insurance company responsible for the final distribution of the funds with a certification that includes the prevailing party's full name, mailing address, date of birth and social security number; and (2) the attorney representing the prevailing party shall initiate a search of child support judgments, through bureau for child support or a private judgment search company that maintains information on child support judgments, to determine if the prevailing party is a child support judgment debtor. If the prevailing party is not represented by an attorney, the judgment search shall be initiated by the opposing attorney or an insurance company before the proceeds are distributed to the prevailing party. In a workers' compensation action, the workers' compensation commission or insurance company shall initiate the judgment search. The bureau for child support or judgment search company shall provide a certification to the attorney, insurance company or party initiating the lawsuit identifying whether or not the prevailing party is a child support judgment debtor.
If there are no attorneys representing either party in a civil lawsuit, the party bringing the lawsuit shall initiate the judgment search and shall be required to file the certification with the court at least ten working days prior to the trial or with the stipulation that the certification shall be filed at the time of the settlement or dismissal of the lawsuit.
For moneys deposited with the court, no distribution of funds shall be made until the attorney or prevailing party provides the clerk of the pertinent court with a copy of the certification showing that the prevailing party is not a child support judgment debtor.
The fee for a judgment search is chargeable against the net proceeds as a cost of the settlement, judgment or award.
(c) If the certification shows that the prevailing party is not a child support judgment debtor, the net proceeds may be paid to the prevailing party immediately. If the certification shows that the prevailing party is a child support judgment debtor, the attorney or insurance company that initiated the search shall contact the bureau for child support to arrange for the satisfaction of the child support judgment. The attorney or insurance company shall notify the prevailing party of the intent to satisfy the child support judgment prior to the disbursement of any funds to the prevailing party. Upon receipt of a warrant of satisfaction for the child support judgment, the attorney or insurance company shall pay the balance of the settlement, judgment or award to the prevailing party. If the net proceeds are less than the amount of the child support judgment, the entire amount of the net proceeds shall be paid to the bureau for child support as partial satisfaction of the judgment.
If there are no attorneys representing either party in a civil lawsuit and the certification filed with the court shows that the prevailing party is a child support judgment debtor, the court shall order that the opposing party pay the amount of the child support judgment to the probation division before any funds are paid to the prevailing party. The opposing party shall also insure that any judgment related to the lawsuit docketed with the clerk of the pertinent court reflects the bureau for child support's superior claim to the funds.
(d) An attorney or insurance company shall not be liable for distributing net proceeds to the prevailing party based on the results of a judgment certification showing the prevailing party is not the debtor of a child support judgment, if it is later shown that the prevailing party provided inaccurate personal information on the initial certification to the attorney or the insurer.
(e) An attorney who, in accordance with this article, satisfies a child support judgment from the net proceeds of a settlement, judgment or award, shall not be liable for payments which otherwise would have been made pursuant to subsection (a) of this section which were not so identified to the attorney at the time of satisfaction.
(f) An attorney who, or insurance company that, in accordance with this article, satisfies a child support judgment from the net proceeds of a settlement, judgment or award, shall not be liable to the prevailing party or to the prevailing party's creditors.
(g) An attorney shall not be required to challenge a child support judgment unless retained by the prevailing party to do so.
(h) A private judgment search company is prohibited from using any information provided by an attorney or insurance company in accordance with this article for any purpose other than: (1) Determining if the prevailing party is the debtor of a child support judgment; and (2) preparing a certification as required pursuant to section (b) of this section.