H. B. 2971
(By Delegate Eldridge)
[Introduced January 13, 2010; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §48-1-202, §48-1-204, §48-1-205,
§48-1-210, §48-1-228, §48-1-230, §48-1-237, §48-1-244,
§48-1-302, §48-1-303 and §48-1-305 of the Code of West
Virginia, 1931, as amended, all relating to domestic relations
definitions.
Be it enacted by the Legislature of West Virginia:
That §48-1-202, §48-1-204, §48-1-205, §48-1-210, §48-1-228,
§48-1-230, §48-1-237, §48-1-244, §48-1-302, §48-1-303 and §48-1-305
of the Code of West Virginia, 1931, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
PART 2. DEFINITIONS.
§48-1-202. Adjusted gross income defined.
(a) "Adjusted gross income" means gross income less the
payment of previously ordered child support, spousal support or separate maintenance.
(b) A further deduction from gross income for additional
dependents
may be is allowed by the court if the parent has legal
dependents other than those for whom support is being determined.
An adjustment
may be is used in the establishment of a child
support order or in a review of a child support order.
However, in
cases where a modification is sought, the adjustment should not be
used to the extent that it results in a support amount lower than
the previously existing order for the children who are the subject
of the modification. The court may elect to use the following
adjustment because it allots equitable shares of support to all of
the support obligor's legal dependents. Using the income of the
support obligor only, determine the basic child support obligation
(from the table of basic child support obligations in section
13-301 of this chapter) for the number of additional legal
dependents living with the support obligor. Multiply this figure
by 0.75 and subtract this amount from the support obligor's gross
income. The court shall consider all of the obligor's dependents
whether living with the obligor or others when calculating the
child support obligation and shall calculate the support obligation
as if all legal dependents were in the same family. Further, no
child is considered less than any other and the obligation to one
is the same as to any other.
(c) As used in this section, the term "legal dependents" means:
(1) Minor natural or adopted children who live with the parent
or may be the subject of any other child support calculations
whether living with the parent or others; and
(2) Natural or adopted adult children who are totally
incapacitated because of physical or emotional disabilities and for
whom the parent owes a duty of support.
§48-1-204. Arrearages or past due support defined.
"Arrearages" or "past due support" means the total of any
matured, unpaid installments of child support required to be paid
by an order entered or modified by a court of competent
jurisdiction, or by the order of a magistrate court of this state,
and shall stand, by operation of law, as a decretal judgment
against the obligor owing such support. The amount of unpaid
support shall bear interest from the date it accrued, at a rate of
$10 upon $100 per annum, and proportionately for a greater or
lesser sum, or for a longer or shorter time.
Interest is not added
on any support obligation where the obligor can show good cause or
has mitigating circumstances. Except as provided in rule
twenty-three of rules of practice and procedure for family law and
as provided in section three hundred two
of this article, a child
support order may not be retroactively modified so as to cancel or
alter accrued installments of support.
§48-1-205. Attributed income defined.
(a) "Attributed income" means income not actually earned by a
parent but which may be attributed to the parent because he or she
is unemployed, is not working full time or is working below full
earning capacity or has nonperforming or underperforming assets.
Income may be attributed to a parent if the court evaluates the
parent's earning capacity in the local economy (giving
consideration to relevant evidence that pertains to the parent's
work history, qualifications, education and physical or mental
condition) and determines that the parent is unemployed, is not
working full time or is working below full earning capacity
intentionally with the purpose of reducing child support
obligations. The court may not attribute additional income in
cases where an obligor is underemployed or unemployed due to
circumstances beyond their control. Income may also be attributed
to a parent if the court finds that the obligor has nonperforming
or underperforming assets
that are a direct result of the obligor
intentionally trying to reduce the amount of a child support
obligation.
(b) If an obligor: (1) Voluntarily leaves employment or
voluntarily alters his or her pattern of employment so as to be
unemployed, underemployed or employed below full earning capacity;
(2) is able to work and is available for full-time work for which
he or she is fitted by prior training or experience; and (3) is not
seeking employment in the manner that a reasonably prudent person in his or her circumstances would do, then an alternative method
for the court to determine gross income is to attribute to the
person an earning capacity based on his or her previous income. If
the obligor's work history, qualifications, education or physical
or mental condition cannot be determined, or if there is an
inadequate record of the obligor's previous income, the court may,
as a minimum, base attributed income on full-time employment (at
forty hours per week) at the federal minimum wage in effect at the
time the support obligation is established. In order for the court
to consider attribution of income, it is not necessary for the
court to find that the obligor's termination or alteration of
employment was for the purpose of evading a support obligation.
(c) Income shall not be attributed to an obligor who is
unemployed or underemployed or is otherwise working below full
earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to
whom both of the parties owe a legal responsibility for support and
such children are of preschool age or are handicapped or otherwise
in a situation requiring particular care by the parent;
(2) The parent is pursing 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 or education
: Provided, That
if the parent is involved in an educational program, the court shall ascertain that the person is making substantial progress
toward completion of the program;
(3) The parent is, for valid medical reasons, earning an
income in an amount less than previously earned; or
(4) The court makes a written finding that other circumstances
exist which would make the attribution of income inequitable
:
Provided, That in such case the court may decrease the amount of
attributed income to an extent required to remove such inequity.
(d) The court may attribute income to a parent's nonperforming
or underperforming assets, other than the parent's primary
residence. Assets may be considered to be nonperforming or
underperforming to the extent that they do not produce income at a
rate equivalent to the current six-month certificate of deposit
rate or such other rate that the court determines is reasonable,
unless the obligor made a good faith effort to utilize the assets
in such a way as to expect them to perform at or above the
equivalent rate but due to no fault of their own, the assets
underperformed.
§48-1-210. Caretaker and caretaking functions defined.
(a) "Caretaker" means a person who performs one or more
caretaking functions for a child. The term "caretaking functions"
means activities that involve interaction with a child and the care
of a child,
including employment outside or inside of the home to
provide for financial needs of the child and other family members. Caretaking functions also include the supervision and direction of
interaction and care provided by other persons.
(b) Caretaking functions include the following:
(1) Performing functions that meet the daily physical
and
financial needs of the child. These functions include, but are not
limited to, the following:
(A) Feeding;
(B) Dressing;
(C) Bedtime and wake-up routines;
(D) Caring for the child when sick or hurt;
(E) Bathing and grooming;
(F) Recreation and play;
(G) Physical safety;
and
(H) Transportation;
and
(I) Employment, inside or outside of the home to provide for
the financial needs of the child and other family members.
(2) Direction of the child's various developmental needs,
including the acquisition of motor and language skills, toilet
training, self-confidence and maturation;
(3) Discipline, instruction in manners, assignment and
supervision of chores and other tasks that attend to the child's
needs for behavioral control and self-restraint;
(4) Arrangements for the child's education, including remedial
or special services appropriate to the child's needs and interests, communication with teachers and counselors and supervision of
homework;
(5) The development and maintenance of appropriate
interpersonal relationships with peers, siblings and adults;
(6) Arrangements for health care, which includes making
medical appointments, communicating with health care providers and
providing medical follow-up and home health care;
(7) Moral guidance; and
(8) Arrangement of alternative care by a family member,
baby-sitter or other child care provider or facility, including
investigation of alternatives, communication with providers and
supervision.
§48-1-228. Gross income defined.
(a) "Gross income" means all earned and unearned income. The
word "income" means gross income unless the word is otherwise
qualified or unless a different meaning clearly appears from the
context. When determining whether an income source should be
included in the child support calculation, the court shall consider
the income source if it would have been available to pay
child-rearing expenses had the family remained intact or, in cases
involving a nonmarital birth, if a household had been formed.
(b) "Gross income" includes, but is not limited to, the
following:
(1) Earnings in the form of salaries, wages, commissions, fees, bonuses, profit sharing, tips and other income;
(2) Any payment from a pension plan, an insurance contract, an
annuity, social security benefits, unemployment compensation,
supplemental employment benefits, workers' compensation benefits
and state lottery winnings and prizes.
These payments must be
qualified as actual income for the purposes of state or federal
income taxes and not payments received based on depletion of the
current principal balance in those accounts;
(3) Interest, dividends or royalties;
(4) In kind payments
in excess of those allowed by the IRS for
income tax filing purposes such as business expense accounts,
business credit accounts and tangible property such as automobiles
and meals, to the extent that they provide the parent with property
or services he or she would otherwise have to provide:
Provided,
That reimbursement of actual expenses incurred and documented shall
not be included as gross income;
(5) Attributed income of the parent, calculated in accordance
with the provisions of
section article one,
section two hundred
five;
(6) An amount equal to fifty percent of the average
compensation paid for personal services as overtime compensation
during the preceding thirty-six months:
Provided, That overtime
compensation may be excluded from gross income if the parent with
the overtime income demonstrates to the court that the overtime work is voluntarily performed and that he or she did not have a
previous pattern of working overtime hours prior to separation or
the birth of a nonmarital child,
or if there has been a change of
employment in that period of time which no longer requires or lends
itself to overtime work;
(7) Income from self-employment or the operation of a
business, minus ordinary and necessary expenses which are not
reimbursable, and which are lawfully deductible in computing
taxable income under applicable income tax laws, and minus FICA and
Medicare contributions made in excess of the amount that would be
paid on an equal amount of income if the parent was not
self-employed:
Provided, That the amount of monthly income to be
included in gross income shall be determined by averaging the
income from such employment during the previous thirty-six-month
period or during a period beginning with the month in which the
parent first received such income, whichever period is shorter,
the
court shall take into account any adverse conditions in the
employment that may have adversely affected the most recent income
of the self employed which are beyond their control and shall
adjust the income accordingly;
(8) Income from seasonal employment or other sporadic sources:
Provided, That the amount of monthly income to be included in gross
income shall be determined by averaging the income from seasonal
employment or other sporadic sources received during the previous thirty-six-month period or during a period beginning with the month
in which the parent first received such compensation, whichever
period is shorter:
Provided, however, That the seasonal employment
is still available and the health of the individual will not be
adversely affected by the additional overtime; and
(9) Spousal support and separate maintenance receipts.
(c) Depending on the circumstances of the particular case, the
court may also include severance pay, capital gains and net
gambling, gifts or prizes as gross income.
(d) (c) "Gross income" does not include:
(1) Income received by other household members such as a new
spouse;
and
(2) Child support received for the children of another
relationship.
(3) Means-tested assistance such as temporary assistance for
needy families, supplemental security income and food stamps; and
(4) A child's income unless the court determines that the
child's income substantially reduces the family's living expenses
§48-1-230. Income defined.
"Income" includes, but is not limited to, the following:
(1) Commissions, earnings, salaries, wages and other income
due or to be due in the future to an individual from his or her
employer and successor employers;
(2) Any payment due or to be due in the future to an individual from a profit-sharing plan, a pension plan, an insurance
contract, an annuity, Social Security, unemployment compensation,
supplemental employment benefits, workers' compensation benefits,
state lottery winnings and prizes and overtime pay.
These payments
must be qualified as actual income for the purposes of state or
federal income taxes and not payments received based on depletion
of the current principal balance in those accounts;
(3) Any amount of money which is owing to an individual as a
debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency, this
state or any political subdivision of this state, any other state
or a political subdivision of another state or any other legal
entity which is indebted to the obligor,
subject to those moneys
being readily collectible;
(4) Any amount of money which is held by the Regional Jail
Authority for an inmate in an inmate's concession account.
§48-1-237. Separate property defined.
"Separate property" means:
(1) Property acquired by a person before marriage;
(2) Property acquired by a person during marriage in exchange
for separate property which was acquired before the marriage;
(3) Property acquired by a person during marriage, but
excluded from treatment as marital property by a valid agreement of
the parties entered into before or during the marriage;
(4) Property acquired by a party during marriage by gift,
bequest, devise, descent or distribution;
(5) Property acquired by a party during a marriage but after
the separation of the parties and before ordering an annulment,
divorce or separate maintenance; or
(6) Any increase
or decrease in the value of separate property
as defined in subdivision (1), (2), (3), (4) or (5) of this section
which is due to inflation or to a change in market value resulting
from conditions outside the control of the parties.
§48-1-244. Support defined.
"Support" means the payment of money, including interest:
(1) For a child or spouse, ordered by a court of competent
jurisdiction, whether the payment is ordered in an emergency,
temporary, permanent or modified order, the amount of unpaid
support shall bear simple interest from the date it accrued, at a
rate of
ten $4 upon $100 per annum, and proportionately for a
greater or lesser sum, or for a longer or shorter time.
Interest
is not added on any support obligation where the obligor can show
good cause or has mitigating circumstances;
(2) To third parties on behalf of a child or spouse,
including, but not limited to, payments to medical, dental or
educational providers, payments to insurers for health and
hospitalization insurance, payments of residential rent or mortgage
payments, payments on an automobile or payments for day care; or
(3) For a mother, ordered by a court of competent
jurisdiction, for the necessary expenses incurred by or for the
mother in connection with her confinement or of other expenses in
connection with the pregnancy of the mother.
PART 3. MISCELLANEOUS PROVISIONS RELATING TO DOMESTIC RELATIONS.
§48-1-302. Calculation of interest.
(a) Notwithstanding any other provisions of the code, if an
obligation to pay interest arises under this chapter, the rate of
interest is five four percent per annum and proportionate thereto
for a greater or lesser sum, or for a longer or shorter time.
Interest awarded shall only be simple interest and nothing in this
section may be construed to permit awarding of compound interest.
Interest accrues only upon the outstanding principal of such
obligation.
(b) Notwithstanding any other provision of law, no court may
award or approve prejudgment interest in a domestic relations
action against a party unless the court finds, in writing, that the
party engaged in conduct that would violate subsection (b), Rule 11
of the West Virginia Rules of Civil Procedure. If prejudgment
interest is awarded, the court shall calculate prejudgment interest
from the date the offending representation was presented to the
court pursuant to subsection (a) of this section.
(c) Upon written agreement by both parties, an obligor may
petition the court to enter an order conditionally suspending the collection of all or part of the interest that has accrued on
past-due child support prior to the date of the agreement.
Provided, That said agreement shall also establish a reasonable
payment plan which is calculated to fully discharge all arrearages
within twenty-four months. Upon successful completion of the
payment plan, the court shall enter an order which permanently
relieves the obligor of the obligation to pay the accrued interest.
If the obligor fails to comply with the terms of the written
agreement, then the court shall enter an order which reinstates the
accrued interest
(d) Amendments to this section enacted by the Legislature
during the two thousand six 2009 regular session shall become
effective January 1, two thousand seven 2010.
§48-1-303. Confidentiality of domestic relations court files.
(a) All orders in domestic relations actions entered in the
civil order books by circuit clerks are public records.
(b) Upon the filing of a domestic relations action, all
pleadings, exhibits or other documents, other than including
orders, that are contained in the court file are confidential and
not open for public inspection either during the pendency of the
case or after the case is closed.
(c) When sensitive information has been disclosed during a
hearing or in pleadings, evidence or documents filed in the record,
the court may, sua sponte or upon motion of a party, order such information sealed in the court file. Sealed documents or court
files can only be opened by order of a circuit or family court
judge.
Court records shall only be ordered sealed in the most
compelling of situations where serious harm or injury may result
from the disclosure of such information.
(d) The parties, their designees, their attorneys, a duly
appointed guardian ad litem or any other person who has standing to
seek modification or enforcement of a support order has the right
to examine and copy any document in a confidential court file that
has not been sealed by court order. Upon motion and for good cause
shown, the court may permit a person who is not a party to the
action to examine and copy any documents that are necessary to
further the interests of justice.
(e) The clerk of the circuit court shall keep a written log of
all persons who examine confidential documents as provided for in
this section. Every person who examines confidential documents
shall first sign the clerk's written log, except for a circuit
judge or family court judge before whom the case is pending, or
court personnel acting within the scope of their duties. The clerk
shall record the time and date of every examination of confidential
documents. The log must be retained by the clerk and must be
available upon request for inspection by the circuit judge or the
family court judge.
§48-1-305. Suit money, counsel fees and costs.
(a) Costs may be awarded to either party as justice requires
and in all cases the court, in its discretion, may require payment
of costs at any time and may suspend or withhold any order until
the costs are paid. Costs of attorney fees are borne by each of the
respective parties. If the costs are associated with regards to
equitable distribution in dissolution of marriage cases then the
fees are allocated to the individual party's share of the
distribution. In no case shall one party be responsible for the
other party's attorneys fees in cases of dissolution of marriage.
(b) 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. An order for temporary relief
awarding attorney's 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 is taken or an intention to appeal is stated, the court may
further order either party to pay attorney's fees and costs on
appeal. Costs associated with subsequent hearings on matters
related to child custody or other issues related to children shall
also be borne by the individual parties except as outlined in
subsection (c) below.
(c) 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.
NOTE: The purpose of this bill is to clarify domestic
relations definitions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
