Modifies provisions relating to child support orders

SECOND REGULAR SESSION
SENATE BILL NO. 1323
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR HUDSON.
5123S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal section 452.350, RSMo, and to enact in lieu thereof one new section relating to child
support orders, with penalty provisions.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Section 452.350, RSMo, is repealed and one new 1
section enacted in lieu thereof, to be known as section 452.350, 2
to read as follows:3
452.350. 1. Until January 1, 1994, except for orders 1
entered or modified in IV-D cases, each order for child 2
support or maintenance entered or modified by the court 3
pursuant to the authority of this chapter, or otherwise, 4
shall include a provision notifying the person obligated to 5
pay such support or maintenance that, upon application by 6
the obligee or the Missouri family support division of the 7
department of social services, the obligor's wages or other 8
income shall be subject to withholding without further 9
notice if the obligor becomes delinquent in maintenance or 10
child support payments in an amount equal to one month's 11
total support obligation. The order shall also contain 12
provisions notifying the obligor that: 13
(1) The withholding shall be for the current month's 14
maintenance and support; and 15
(2) The withholding shall include an additional amount 16
equal to fifty percent of one month's child support and 17
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maintenance to defray delinquent child support and 18
maintenance, which additional withholding shall continue 19
until the delinquency is paid in full. 20
2. For all orders entered or modified in IV-D cases, 21
and effective January 1, 1994, for every order for child 22
support or maintenance entered or modified by the court 23
pursuant to the authority of this chapter, or otherwise, 24
income withholding pursuant to this section shall be 25
initiated on the effective date of the order, except that 26
such withholding shall not commence with the effective date 27
of the order in any case where: 28
(1) One of the parties demonstrates, and the court 29
finds, that there is good cause not to require immediate 30
income withholding. For purposes of this subdivision, any 31
finding that there is good cause not to require immediate 32
withholding must be based on, at least, a written 33
determination and an explanation by the court that 34
implementing immediate wage withholding would not be in the 35
best interests of the child and proof of timely payments of 36
previously ordered support in cases involving the 37
modification of support orders; or 38
(2) A written agreement is reached between the parties 39
that provides for an alternative arrangement. 40
If the income of an obligor is not withheld as of the 41
effective date of the support order, pursuant to subdivision 42
(1) or (2) of this subsection, or otherwise, such obligor's 43
income shall become subject to withholding pursuant to this 44
section without further exception on the date on which the 45
obligor becomes delinquent in maintenance or child support 46
payments in an amount equal to one month's total support 47
obligation or after ninety days of partial child support 48
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payments, whichever is earlier. Such withholding shall be 49
initiated in the manner provided in subsection 4 of this 50
section. All IV-D orders entered or modified by the court 51
shall contain a provision notifying the obligor that he or 52
she shall notify the family support division regarding the 53
availability of medical insurance coverage through an 54
employer or a group plan, provide the name of the insurance 55
provider when coverage is available, and inform the division 56
of any change in access to such insurance coverage. Any 57
income withheld pursuant to this section for a support order 58
initially entered on or after October 1, 1999, shall be paid 59
to the payment center pursuant to section 454.530. Any 60
order of the court entered on or after October 1, 1999, 61
establishing the withholding for a support order as defined 62
in section 454.460, or notice from the clerk issued on or 63
after October 1, 1999, pursuant to this section for a 64
support order shall require payment to the payment center 65
pursuant to section 454.530. 66
3. The provisions of section 432.030 to the contrary 67
notwithstanding, if income withholding has not been 68
initiated on the effective date of the initial or modified 69
order, the obligated party may execute a voluntary income 70
assignment at any time, which assignment shall be filed with 71
the court and shall take effect after service on the 72
employer or other payer. 73
4. The circuit clerk, upon application of the obligee 74
or the family support division, shall send, by certified 75
mail, return receipt requested, a written notice to the 76
employer or other payer listed on the application when the 77
obligated party is subject to withholding pursuant to the 78
child support order or subsection 2 of this section. For 79
orders entered or modified in cases known by the circuit 80
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clerk to be IV-D cases in which income withholding is to be 81
initiated on the effective date of the order, and effective 82
January 1, 1994, for all orders entered or modified by the 83
court in which income withholding is to be initiated on the 84
effective date of the order, the circuit clerk shall send 85
such notice to the employer or other payer in the manner 86
provided by this section at the time the order is entered 87
without application of any party when an employer or other 88
payer is identified to the circuit clerk by inclusion in the 89
pleadings pursuant to section 452.312, or otherwise. The 90
notice of income withholding shall be prepared by the person 91
entitled to support pursuant to the order, or the legal 92
representative of that person, on a form prescribed by the 93
court, and shall be presented to the clerk of the court at 94
the time the order of support is entered. The notice shall 95
direct the employer or other payer to withhold each month an 96
amount equal to one month's child support and maintenance 97
until further notice from the court. In the event of a 98
delinquency in child support or maintenance payments in an 99
amount equal to one month's total support obligation, the 100
notice further shall direct the employer or other payer to 101
withhold each month an additional amount equal to fifty 102
percent of one month's child support and maintenance until 103
the support delinquency is paid in full. The notice shall 104
also include a statement of exemptions which may apply to 105
limit the portion of the obligated party's disposable 106
earnings which are subject to the withholding pursuant to 107
federal or state law and notify the obligor that the obligor 108
may request a hearing and related information pursuant to 109
this section. The notice shall contain the Social Security 110
number of the obligor if available. The circuit clerk shall 111
send a copy of this notice by regular mail to the last known 112
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address of the obligated party. A notice issued pursuant to 113
this section shall be binding on the employer or other 114
payer, and successor employers and payers, two weeks after 115
mailing, and shall continue until further order of the court 116
or the family support division. If the notice does not 117
contain the Social Security number of the obligor, the 118
employer or other payer shall not be liable for withholding 119
from the incorrect obligor. The obligated party may, within 120
that two-week period, request a hearing on the issue of 121
whether the withholding should take effect. The withholding 122
shall not be held in abeyance pending the outcome of the 123
hearing. The obligor may not obtain relief from the 124
withholding by paying overdue support, if any. The only 125
basis for contesting the withholding is a mistake of fact. 126
For the purpose of this section, "mistake of fact" shall 127
mean an error in the amount of arrearages, if applicable, or 128
an error as to the identity of the obligor. The court shall 129
hold its hearing, enter its order disposing of all issues 130
disputed by the obligated party, and notify the obligated 131
party and the employer or other payer, within forty-five 132
days of the date on which the withholding notice was sent to 133
the employer. 134
5. For each payment the employer may charge a fee not 135
to exceed six dollars per month, which shall be deducted 136
from each obligor's moneys, income or periodic earnings, in 137
addition to the amount deducted to meet the support or 138
maintenance obligation subject to the limitations contained 139
in the federal Consumer Credit Protection Act (15 U.S.C. 140
Section 1673). 141
6. Upon termination of the obligor's employment with 142
an employer upon whom a withholding notice has been served, 143
the employer shall so notify the court in writing. The 144
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employer shall also inform the court, in writing, as to the 145
last known address of the obligor and the name and address 146
of the obligor's new employer, if known. 147
7. Amounts withheld by the employer or other payer 148
shall be transmitted, in accordance with the notice, within 149
seven business days of the date that such amounts were 150
payable to the obligated party. For purposes of this 151
section, "business day" means a day that state offices are 152
open for regular business. The employer or other payer 153
shall, along with the amounts transmitted, provide the date 154
each amount was withheld from each obligor. If the employer 155
or other payer is withholding amounts for more than one 156
order, the employer or other payer may combine all such 157
withholdings that are payable to the same circuit clerk or 158
the family support payment center and transmit them as one 159
payment, together with a separate list identifying the cases 160
to which they apply. The cases shall be identified by court 161
case number, name of obligor, the obligor's Social Security 162
number, the IV-D case number, if any, the amount withheld 163
for each obligor, and the withholding date or dates for each 164
obligor, to the extent that such information is known to the 165
employer or other payer. An employer or other payer who 166
fails to honor a withholding notice pursuant to this section 167
may be held in contempt of court and is liable to the 168
obligee for the amount that should have been withheld. 169
Compliance by an employer or other payer with the 170
withholding notice operates as a discharge of liability to 171
the obligor as to that portion of the obligor's periodic 172
earnings or other income so affected. 173
8. As used in this section, the term "employer" 174
includes the state and its political subdivisions. 175
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9. An employer shall not discharge or otherwise 176
discipline, or refuse to hire, an employee as a result of a 177
withholding notice issued pursuant to this section. Any 178
obligor who is aggrieved as a result of a violation of this 179
subsection may bring a civil contempt proceeding against the 180
employer by filing an appropriate motion in the cause of 181
action from which the withholding notice issued. If the 182
court finds that the employer discharged, disciplined, or 183
refused to hire the obligor as a result of the withholding 184
notice, the court may order the employer to reinstate or 185
hire the obligor, or rescind any wrongful disciplinary 186
action. If, after the entry of such an order, the employer 187
refuses without good cause to comply with the court's order, 188
or if the employer fails to comply with the withholding 189
notice, the court may, after notice to the employer and a 190
hearing, impose a fine against the employer, not to exceed 191
five hundred dollars. Proceeds of any such fine shall be 192
distributed by the court to the county general revenue fund. 193
10. A withholding entered pursuant to this section 194
may, upon motion of a party and for good cause shown, be 195
amended by the court. The clerk shall notify the employer 196
of the amendment in the manner provided for in subsection 4 197
of this section. 198
11. The court, upon the motion of obligor and for good 199
cause shown, may terminate the withholding, except that the 200
withholding shall not be terminated for the sole reason that 201
the obligor has fully paid past due child support and 202
maintenance. 203
12. A withholding effected pursuant to this section 204
shall have priority over any other legal process pursuant to 205
state law against the same wages, except that where the 206
other legal process is an order issued pursuant to this 207
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section or section 454.505, the processes shall run 208
concurrently, up to applicable wage withholding 209
limitations. If concurrently running wage withholding 210
processes for the collection of support obligations would 211
cause the amounts withheld from the wages of the obligor to 212
exceed applicable wage withholding limitations and includes 213
a wage withholding from another state pursuant to section 214
454.932, the employer shall first satisfy current support 215
obligations by dividing the amount available to be withheld 216
among the orders on a pro rata basis using the percentages 217
derived from the relationship each current support order 218
amount has to the sum of all current child support 219
obligations. Thereafter, delinquencies shall be satisfied 220
using the same pro rata distribution procedure used for 221
distributing current support, up to the applicable 222
limitation. If concurrently running wage withholding 223
processes for the collection of support obligations would 224
cause the amounts withheld from the wages of the obligor to 225
exceed applicable wage withholding limitations and does not 226
include a wage withholding from another state pursuant to 227
section 454.932, the employer shall withhold and pay to the 228
payment center an amount equal to the wage withholding 229
limitations. The payment center shall first satisfy current 230
support obligations by dividing the amount available to be 231
withheld among the orders on a pro rata basis using the 232
percentages derived from the relationship each current 233
support order amount has to the sum of all current child 234
support obligations. Thereafter, arrearages shall be 235
satisfied using the same pro rata distribution procedure 236
used for distributing current support, up to the applicable 237
limitation. 238
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13. The remedy provided by this section applies to 239
child support and maintenance orders entered prior to August 240
13, 1986, notwithstanding the absence of the notice to the 241
obligor provided for in subsection 1 of this section, 242
provided that prior notice from the circuit clerk to the 243
obligor in the manner prescribed in subsection 5 of section 244
452.345 is given. 245
14. Notwithstanding any provisions of this section to 246
the contrary, in a case in which support rights have been 247
assigned to the state or in which the family support 248
division is providing support enforcement services pursuant 249
to section 454.425, the director of the family support 250
division may amend or terminate a withholding order issued 251
pursuant to this section, as provided in this subsection 252
without further action of the court. The director may amend 253
or terminate a withholding order and issue an administrative 254
withholding order pursuant to section 454.505 when the 255
director determines that children for whom the support order 256
applies are no longer entitled to support pursuant to 257
section 452.340, when the support obligation otherwise ends 258
and all arrearages are paid, when the support obligation is 259
modified pursuant to section 454.500, or when the director 260
enters an order that is approved by the court pursuant to 261
section 454.496. The director shall notify the employer and 262
the circuit clerk of such amendment or termination. The 263
director's administrative withholding order or withholding 264
termination order shall preempt and supersede any previous 265
judicial withholding order issued pursuant to this or any 266
other section. 267
15. For the purpose of this section, "income" means 268
any periodic form of payment due to an individual, 269
regardless of source, including wages, salaries, 270
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commissions, bonuses, workers' compensation benefits, 271
disability benefits, payments pursuant to a pension or a 272
retirement program and interest. 273
16. If the secretary of the Department of Health and 274
Human Services promulgates a final standard format for an 275
employer income withholding notice, the court shall use or 276
require the use of such notice. 277
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