Assembly Bill No. 117–Committee on Judiciary

 

February 13, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes to provisions governing withholding of income which is ordered to enforce payment of child support. (BDR 3‑901)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to child support; making various changes to provisions governing the withholding of income which is ordered to enforce the payment of child support; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1.  NRS 31A.025 is hereby amended to read as

1-2  follows:

1-3  31A.025  1.  Except as otherwise provided in subsection [2,] 4,

1-4  whenever a court order requiring an obligor to make payments for

1-5  the support of a child includes an order directing the withholding of

1-6  income for the payment of the support, the procedure provided by

1-7  this chapter for the withholding of income must be carried out

1-8  immediately unless:

1-9  (a) All parties agree in writing that there should be no

1-10  immediate withholding; or

1-11      (b) The court finds good cause for the postponement of

1-12  withholding.

1-13      2.  Except as otherwise provided in [this paragraph,] subsection

1-14  3, a finding of good cause pursuant to paragraph (b) of subsection

1-15  1 must be based on a written finding by the court that the immediate

1-16  withholding of income would not be in the best interests of the

1-17  child. A finding that the immediate withholding of income would

2-1  not be in the best interests of the child may be based on evidence

2-2  that:

2-3  (a) The obligor has not been found to be in arrears for the

2-4  payment of child support and is willing and able to pay the amount

2-5  ordered by the court;

2-6  (b) The obligor was unaware that he was the parent of the

2-7  child for whom he owes an obligation of support during any time

2-8  in which an arrearage for the payment of child support accrued

2-9  and is willing and able to pay the amount ordered by the court; or

2-10      (c) The obligor has provided full payment of his obligation for

2-11  support for each of the immediately preceding 12 months.

2-12      3.  In an action for modification or adjustment of a previous

2-13  order for the support of a child, a finding of good cause may be

2-14  based on evidence of payment in a timely manner by the obligor

2-15  under the previous order for support.

2-16      [2.] 4. In the case of any court order requiring an obligor to

2-17  make payments for the support of a child:

2-18      (a) That does not include an order directing the withholding of

2-19  income for the payment of the support; or

2-20      (b) In connection with which:

2-21          (1) Good cause has been found by the court for the

2-22  postponement of withholding; or

2-23          (2) All parties have agreed in writing that there should be no

2-24  immediate withholding,

2-25  the procedure for the withholding of income must be carried out

2-26  when the obligor becomes delinquent in paying the support of a

2-27  child. The person entitled to the payment of support or his legal

2-28  representative shall notify the enforcing authority when the

2-29  procedure for the withholding of income must be carried out

2-30  pursuant to this subsection.

2-31      Sec. 2.  NRS 31A.040 is hereby amended to read as follows:

2-32      31A.040  1.  The enforcing authority shall notify an obligor

2-33  who is subject to the withholding of income by first-class mail to his

2-34  last known address:

2-35      (a) That his income is being withheld;

2-36      (b) Of the amount of any arrearages;

2-37      (c) Of the amount being withheld from his incometo pay

2-38  current support and the amount being withheld to pay any

2-39  arrearages;

2-40      (d) That a notice to withhold income applies to any current or

2-41  subsequent employer;

2-42      (e) That a notice to withhold income of the obligor has been

2-43  mailed to his employer;

2-44      (f) Of the information provided to his employer pursuant to

2-45  NRS 31A.070;

3-1  (g) That he may contest the withholding; and

3-2  (h) Of the grounds and procedures for contesting the

3-3  withholding.

3-4  2.  The provisions of this section are applicable only to an

3-5  obligor against whom there is entered an order of a kind described

3-6  in subsection [2] 4 of NRS 31A.025.

3-7  Sec. 3.  NRS 31A.050 is hereby amended to read as follows:

3-8  31A.050  1.  Except as otherwise provided in subsection 2:

3-9  (a) If an obligor, within 15 days after a notice of withholding is

3-10  mailed to him pursuant to NRS 31A.040, requests a hearing to

3-11  contest the withholding, the enforcing authority shall apply for a

3-12  hearing before the court.

3-13      (b) The obligor may contest the withholding on the following

3-14  grounds:

3-15          (1) The court which issued the order for support lacked

3-16  personal jurisdiction over him;

3-17          (2) There is a mistake of fact as to:

3-18             (I) Whether the obligor has been delinquent in the

3-19  payment of support;

3-20             (II) The amount of the arrearages or support; or

3-21             (III) The custody of the child; or

3-22          (3) The order of support was obtained by fraud.

3-23  No other issues or defenses may be presented to or determined by

3-24  the court.

3-25      2.  The provisions of subsection 1:

3-26      (a) Are applicable only to an obligor against whom there is

3-27  entered an order of a kind described in subsection [2] 4 of

3-28  NRS 31A.025.

3-29      (b) Do not apply to an obligor who requests a hearing pursuant

3-30  to NRS 130.606 to contest the enforcement, through the withholding

3-31  of income, of an order for support that is registered pursuant to

3-32  chapter 130 of NRS.

3-33      Sec. 4.  NRS 31A.060 is hereby amended to read as follows:

3-34      31A.060  1.  If the court, after conducting a hearing requested

3-35  pursuant to NRS 31A.050, determines that:

3-36      (a) The court that issued the order of support lacked jurisdiction

3-37  or the order was obtained by fraud or a mistake of fact, it shall issue

3-38  an order to stay the withholding.

3-39      (b) The order of support is valid and there is no fraud or mistake

3-40  of fact, it shall issue an order confirming the withholding without

3-41  modification.

3-42      2.  The court shall make its decision within 45 days after the

3-43  notice of the withholding is mailed to the obligor pursuant to

3-44  NRS 31A.040.

4-1  3.  If the court issues an order confirming the withholding, it

4-2  may assess costs and attorney’s fees against the obligor.

4-3  4.  The enforcing authority shall give written notice to the

4-4  obligor of the decision of the court.

4-5  5.  The provisions of this section are applicable only to an

4-6  obligor against whom there is entered an order of a kind described

4-7  in subsection [2] 4 of NRS 31A.025.

4-8  Sec. 5.  NRS 31A.070 is hereby amended to read as follows:

4-9  31A.070  1.  The enforcing authority shall mail, by first-class

4-10  mail, a notice to withhold income to an obligor’s employer:

4-11      (a) If the provisions of subsection [2] 4 of NRS 31A.025 apply,

4-12  immediately upon determining that the obligor is delinquent in the

4-13  payment of support; or

4-14      (b) If the provisions of subsection [2] 4 of NRS 31A.025 do not

4-15  apply, immediately upon the entry of the order of support[.] , unless

4-16  an exception set forth in paragraph (a) or (b) of subsection 1 of

4-17  NRS 31A.025 applies.

4-18      2.  If an employer of an obligor does not begin to withhold

4-19  income from the obligor after receiving the notice to withhold

4-20  income that was mailed pursuant to subsection 1, the enforcing

4-21  authority shall mail, by certified mail, return receipt requested,

4-22  another notice to withhold income to the employer.

4-23      3.  A notice to withhold income may be issued electronically

4-24  andmust:

4-25      (a) Contain the social security number of the obligor;

4-26      (b) Specify the amount to be withheld from the income of the

4-27  obligor;

4-28      (c) Specify the amount of the fee authorized in NRS 31A.090

4-29  for the employer;

4-30      (d) Describe the limitation for withholding income prescribed in

4-31  NRS 31.295;

4-32      (e) Describe the prohibition against terminating the employment

4-33  of an obligor because of withholding and the penalties for

4-34  wrongfully refusing to withhold pursuant to the notice to withhold

4-35  income;

4-36      (f) Specify that, pursuant to NRS 31A.160, the withholding of

4-37  income to enforce an order of a court for child support has priority

4-38  over other proceedings against the same money; and

4-39      (g) Explain the duties of an employer upon the receipt of the

4-40  notice to withhold income.

 

4-41  H