MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
March 24, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 9:30 a.m., on Monday, March 24, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dina Titus
Senator Terry Care
COMMITTEE MEMBERS ABSENT:
Senator Dennis Nolan
Senator Valerie Wiener (Excused)
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Frank W. Daykin, Commissioner, National Conference of Commissioners on Uniform State Laws (NCCUSL)
John Sande III, Lobbyist, Nevada Bankers Association
Leland Sullivan, Chief, Child Support Enforcement, Welfare Division, Department of Human Resources
Myra A. Sheehan, Lobbyist, Nevada Trial Lawyers Association (NTLA)
Chairman Amodei:
I will open the hearing on Senate Bill (S.B.) 285.
SENATE BILL 285: Makes various changes to provisions pertaining to Uniform Commercial Code. (BDR 8-360)
Senator Care:
I present S.B. 285 in my role as a uniform law commissioner. A half an hour ago I spoke with John McCabe, Legislative Director, National Conference of Commissioners on Uniform State Laws (NCCUSL), who was in Chicago. Mr. McCabe informed me of recent developments between the American Banking Association and the NCCUSL. I, therefore, withdraw S.B. 285 until 2005.
Frank W. Daykin, Commissioner, National Conference of Commissioners on Uniform State Laws (NCCUSL):
I concur with Senator Care. I point out, however, they may be jumping a little early because at the time the opposition was drawn, the final language in articles 3 and 4 had not been settled within the conference. There is no particular reason to rush it.
John Sande III, Lobbyist, Nevada Bankers Association:
I discussed S.B. 285 with Senator Care and provided a statement of opposition (Exhibit C) to the NCCUSL’s amendments to the Uniform Commercial Code (UCC) articles 3 and 4, dated January 24, 2003. Thirty-two state associations joined the opposition because some amendments made sense, but apparently the NCCUSL agreed to undertake a more careful analysis to ensure a need for this type of legislation. As noted in the statement of opposition (Exhibit C), should S.B. 285 be passed but not adopted by other states, which they apparently have not done at this time, the Legislature may be forced to undo what was enacted.
Chairman Amodei:
The hearing is closed on S.B. 285 and opened on Senate Bill 269.
SENATE BILL 269: Provides that reduction of 25 percent or more in gross monthly income of person who is ordered to pay alimony or who is subject to order for support of child shall be deemed to constitute changed circumstances requiring modification of payments of alimony or order for support of child. (BDR 11-1068)
Leland Sullivan, Chief, Child Support Enforcement, Welfare Division, Department of Human Resources:
We are neutral on S.B. 269. I will read my prepared testimony (Exhibit D).
Myra A. Sheehan, Lobbyist, Nevada Trial Lawyers Association (NTLA):
As a family law practitioner I have grave concerns regarding S.B. 269. I agree with Mr. Sullivan that the bill needs amending to be an increase or a decrease consistent with federal guidelines, which is 20 percent rather than 25 percent. I am concerned with the purpose of the bill which requires a review for modification, not modification of payment of child support or alimony.
There is a clear statutory formula. In regard to the $550 cap changed in the 2001 Legislative Session, the top amount of income a person can earn is $6251 in order to be at the $550 cap. Reducing that amount by 25 percent is $4689 which keeps it within the $500 cap.
Page 4, line 19, section 1, subsection 10 of S.B. 269 says:
For the purposes of this section, a reduction of 25 percent or more in the gross monthly income of a spouse who is ordered to pay alimony shall be deemed to constitute changed circumstances requiring the modification of the payments of alimony.
Then, page 5, line 12, section 2, subsection 4 of S.B. 269 says, “…requiring the modification of the order…” I think the purpose of the bill is to require a review for modification wherein the court would be required to not reduce the child support beneath statutory guidelines, other than what it already has the ability to do under changed circumstances.
I propose S.B. 269 be modified under those two sections to say “Constitute changed circumstances requiring a review for modification of the payment of alimony if it changes the statutory required amount under Nevada Revised Statutes (NRS) 125.070(1).”
That is the intent of S.B. 269. The bill does not attempt to change statutory guidelines, it is an effort to ensure people get into court to review child support or alimony should their income decrease 25 percent. Senate Bill 269 says child support or alimony must be modified if it drops 25 percent even though it still falls within the statutory guideline cap. I do not think that is the intent of S.B. 269.
Chairman Amodei:
Would you support S.B. 269 with the proposed wording changes?
Ms. Sheehan:
Absolutely. Federal guidelines mandate the court will not review the child support obligation unless the gross monthly income falls within 20 percent. However, it should not keep a person from being able to come to court, hire an attorney, and request modification.
The changes will clarify the intent of S.B. 269, accomplish the intent of the author, and create a good law.
Chairman Amodei:
Mr. Sullivan, would your entity support the legislation with the proposed wording changes?
Mr. Sullivan:
That is correct.
Senator Care:
What would happen if a former husband, not wanting to pay child support or alimony, quit his job at Microsoft to flip burgers at McDonalds? It would be a self-imposed reduction of monthly income.
Ms. Sheehan:
I wish that was an extreme example but, unfortunately, it happens in family law. The law states if a person is willfully underemployed the court can assess income it believes the person is capable of earning. Therefore, should a former husband move from Microsoft to McDonalds with no purpose, under current statute the court can say, “You can flip burgers at McDonalds but you will still pay the percentage of what you would have earned at Microsoft.”
Senate Bill 269 defines “changed circumstance.” In the program, and federal guidelines, should there be a 20 percent reduction or increase, the person can return to court and the court must entertain the motion. It may not change the child support unless it changes the statutory required amount under current law. Then the court, under the statutes, must change the child support unless there are specific circumstances that must be articulated in an order. With the changes, S.B. 269 would be a very good bill and would not affect Senator Care’s scenario.
Senator Washington:
What would happen should the father remarry and have a new family and, based on the formula, be unable to support the new family and the previous family as well? Would S.B. 269 allow him an opportunity to petition the court to review the circumstances and modify the order to enable him to support both families?
Ms. Sheehan:
That scenario is not affected by the statutory change. There are two sections: alimony and child support. Regarding alimony, page 3, section 1, subsection 7 of S.B. 269 indicates the court can modify upon showing of changed circumstances. It also says:
…the court shall consider whether the income of the spouse who is ordered to pay alimony, as indicated on the spouse’s federal income tax return for the preceding calendar year, has been reduced to such a level….
This section, coupled with recent case law, would allow a person to review his or her alimony in the event of living together with another person.
Regarding child support, page 5, section 2, subsection 4 of S.B. 269 does not take out the basis of changed circumstances. Therefore, I believe a person is still able to come to court on any kind of changed circumstances. The court is required to review the circumstances should the income drop below 25 percent, or 20 percent to be in line with federal guidelines. Any time there are changed circumstances a person should be able to come before the court to modify the amount, however, the court may or may not entertain it.
There is also a statute that deals specifically with modification of child support and the factors. One of the factors is the obligation of the obligor, the paying parent, the father, for the responsibility of others. It was clarified in the 2001 Legislative Session to be a legal responsibility in order to eliminate people supporting unadopted, nonbiological children. This section does not affect that.
Would you like me to submit drafts of my modifications to S.B. 269?
Chairman Amodei:
Please do that and submit it to Bradley Wilkinson, Committee Counsel.
The hearing is closed on S.B. 269. There are seven bill draft requests (BDRs) to be introduced.
BILL DRAFT REQUEST 7-982: Makes various changes to provisions pertaining to business. (Later introduced as Senate Bill 436.)
BILL DRAFT REQUEST 14-1222: Revises provisions concerning restoration of certain rights of ex-felons. (Later introduced as Senate Bill 430.)
BILL DRAFT REQUEST 41-1174: Enacts provisions governing live game broadcasts. (Later introduced as Senate Bill 431.)
BILL DRAFT REQUEST 41-490: Makes various changes pertaining to regulation of gaming. (Later introduced as Senate Bill 432.)
BILL DRAFT REQUEST 3-434: Requires leave of district court to be obtained before filing of certain subsequent postconviction petitions for writ of habeas corpus. (Later introduced as Senate Bill 435.)
BILL DRAFT REQUEST 4-427: Revises provisions governing admissibility of certain evidence. (Later introduced as Senate Bill 433.)
BILL DRAFT REQUEST 2-303: Exempts from execution by creditors certain money held in trust forming part of qualified tuition program. (Later introduced as Senate Bill 434.)
SENATOR MCGINNESS MOVED TO INTRODUCE BDR 7-982, BDR 14‑1222, BDR 41-1174, BDR 41-490, BDR 3-434, BDR 4-427, AND BDR 2-303.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NOLAN AND WIENER WERE ABSENT FOR THE VOTE.)
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Chairman Amodei:
There being no further business to come before the committee, the meeting is adjourned at 9:57 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: