GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

H	1 

HOUSE BILL 538

Short Title:  Non-IV-D Income Withholding.	(Public)
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Sponsors: Representative Barnes.
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Referred to:  Judiciary III.
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March 25, 1993

A BILL TO BE ENTITLED
AN ACT TO PROVIDE FOR IMMEDIATE INCOME WITHHOLDING IN NON-IV-D CHILD SUPPORT CASES, AS REQUIRED BY THE FAMILY SUPPORT ACT.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 110-136.3 reads as rewritten:
"§ 110-136.3. Income withholding procedures; applicability.
(a)	Required Contents of Support Orders. All child support orders, civil or criminal, entered or modified in the State in IV-D cases beginning October 1, 1989, and all child support orders, civil or criminal, entered or modified in the State in non-IV-D cases beginning January 1, 1994, shall:
(1)	Require the obligor to keep the clerk of court or IV-D agency informed of the obligor's current residence and mailing address;
		(2a)	Include a provision ordering income withholding to take effect immediately;
(3)	Require the obligor to cooperate fully with the initiating party in the verification of the amount of the obligor's disposable income;
(4)	Require the custodial party to keep the obligor informed of the current residence and mailing address of the child, unless the court has determined that notice to the obligor is inappropriate because the obligor has made verbal or physical threats that constitute domestic violence under Chapter 50B of the General Statutes; and
(5)	Require the obligor to keep the initiating party informed of the name and address of any payor of the obligor's disposable income and of the amount and effective date of any substantial change in this disposable income.
(b)	When obligor subject to withholding.
(1)	In IV-D cases in which a new or modified child support order is entered on or after October 1, 1989, an obligor is subject to income withholding immediately upon entry of the order. In IV-D cases in which the child support order was entered prior to October 1, 1989, an obligor shall become subject to income withholding on the earliest of:
a.	The date on which the obligor fails to make legally obligated child support payments in an amount equal to the support payable for one month; or
b.	The date on which the obligor or obligee requests withholding.
(2)	In non-IV-D cases in which the child support order was entered prior to January 1, 1994, an obligor shall be subject to income withholding on the earliest of:
a.	The date on which the obligor fails to make legally obligated child support payments in an amount equal to the support payable for one month; or
b.	The date on which the obligor requests withholding; or
c.	The date on which the court determines, pursuant to a motion or independent action filed by the obligee under G.S. 110-136.5(a), that the obligor is or has been delinquent in making child support payments or has been erratic in making child support payments.
(2a)	In non-IV-D cases in which a new or modified child support order is entered on or after January 1, 1994, an obligor is subject to income withholding immediately upon entry of the order, unless:
a.	One of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding; or
b.	A written agreement is reached between the parties that provides for an alternative arrangement.
(c)	Applicability. Notwithstanding any other provision of law, the income withholding provisions of this Article shall apply to any IV-D civil or criminal child support order, entered or modified before, on, or after October 1, 1986 and to any non-IV-D civil or criminal child support order, entered or modified before, on, or after January 1, 1993.
(d)	Interstate cases. An interstate case is one in which a child support order of one state is to be enforced in another state.
(1)	In interstate cases withholding provisions shall apply to a child support order of this or any other state. A petition addressed to this State to enforce a child support order of another state or a petition from an initiating party in this State addressed to another state to enforce a child support order entered in this State shall include:
a.	A certified copy of the support order with all modifications, including any income withholding notice or order still in effect;
b.	A copy of the income withholding law of the jurisdiction which issued the support order, provided that this jurisdiction has a withholding law;
c.	A sworn statement of arrearages;
d.	The name, address, and social security number of the obligor, if known;
e.	The name and address of the obligor's employer or of any other source of income of the obligor derived in the state in which withholding is sought; and
f.	The name and address of the agency or person to whom support payments collected by income withholding shall be transmitted.
		(2)	The law of the state in which the support order was entered shall apply in determining when withholding shall be implemented and interpreting the child support order. The law and procedures of the state where the obligor is employed shall apply in all other respects.
(3)	Except as otherwise provided by subdivision (2), income withholding initiated under this subsection is subject to all of the notice, hearing and other provisions of Chapter 110.
(4)	In all interstate cases notices and orders to withhold shall be served upon the payor by a North Carolina agency or judicial officer. In all interstate non-IV-D cases, the advance notice to the obligor shall be served pursuant to G.S. 1A-1, Rule 4, Rules of Civil Procedure.
(5)	For purposes of enforcing a petition under this subsection, jurisdiction is limited to the purposes of income withholding and Chapter 52A of the General Statutes shall not apply.  Nothing in this subsection precludes any remedy otherwise available in a proceeding under Chapter 52A of the General Statutes.
(e)	Procedures and regulations. Procedures, rules, regulations, forms, and instructions necessary to effect the income withholding provisions of this Article shall be established by the Secretary of the Department of Human Resources or the Secretary's designee and the Administrative Office of the Courts. Forms and instructions shall be sent with each order or notice of withholding."
Sec. 2.  G.S. 110-136.5 reads as rewritten:
"§ 110-136.5. Implementation of withholding in non-IV-D cases.
(a)	Withholding Based on Delinquent or Erratic Payments. Notwithstanding any other provision of law, when an obligor is delinquent in making child support payments or has been erratic in making child support payments, the obligee may apply to the court, by motion or in an independent action, for an order for income withholding.
(1)	The motion or complaint shall be verified and state, to the extent known:
a.	Whether the obligor is under a court order to provide child support and, if so, information sufficient to identify the order;
b.	Either:
1.	That the obligor is currently delinquent in making child support payments; or
2.	That the obligor has been erratic in making child support payments;
c.	The amount of overdue support and the total amount sought to be withheld;
d.	The name of each child for whose benefit support is payable; and
e.	The name, location, and mailing address of the payor or payors from whom withholding is sought and the amount of the obligor's monthly disposable income from each payor.
(2)	The motion or complaint shall include or be accompanied by a notice to the obligor, stating:
a.	That withholding, if implemented, will apply to the obligor's current payors and all subsequent payors; and
b.	That withholding, if implemented, will be continued until terminated pursuant to G.S. 110-136.10.
	At any time the parties may agree to income withholding by consent order.
(b)	Withholding Based on Obligor's Request.  The obligor may request at any time that income withholding be implemented.  The request may be made either verbally in open court or by written request.
(1)	A written request for withholding shall state:
a.	That the obligor is under a court order to provide child support, and information sufficient to identify the order;
b.	Whether the obligor is delinquent and the amount of any overdue support;
c.	The name of each child for whose benefit support is payable;
d.	The name, location, and mailing address of the payor or payors from whom the obligor receives disposable income and the amount of the obligor's monthly disposable income from each payor;
e.	That the obligor understands that withholding, if implemented, will apply to the obligor's current payors and all subsequent payors and will be continued until terminated pursuant to G.S. 110-136.10; and
f.	That the obligor understands that the amount withheld will include an amount sufficient to pay current child support, an additional amount toward liquidation of any arrearages, and a two dollar ($2.00) processing fee to be retained by the employer for each withholding, but that the total amount withheld may not exceed the following percent of disposable income:
	Forty percent (40%) if there is only one order for withholding;
	Forty-five percent (45%) if there is more than one order for withholding and the obligor is supporting other dependent children or a spouse; or
	Fifty percent (50%) if there is more than one order for withholding and the obligor is not supporting other dependent children or a spouse.
(2)	A written request for withholding shall be filed in the office of the clerk of superior court to which the obligor is directed to make child support payments.  If the request states and the clerk verifies that the obligor is not delinquent, the court may enter an order for withholding without further notice or hearing.  If the request states or the clerk finds that the obligor is delinquent, the matter shall be scheduled for hearing unless the obligor in writing waives the right to a hearing and consents to the entry of an order for withholding of an amount the court determines to be appropriate.  The court may require a hearing in any case.  Notice of any hearing under this subdivision shall be sent to the obligee.
(c)	Order for withholding.  If the district court judge finds after hearing evidence that the obligor, at the time of the filing of the motion or complaint was, or at the time of the hearing is, delinquent in child support payments or that the obligor has been erratic in making child support payments in accordance with G.S. 110-136.5(a), or that the obligor has requested that income withholding begin in accordance with G.S. 110-136.5(b), the court shall enter an order for income withholding, unless:
(1)	The obligor proves a mistake of fact, except that G.S. 110-129(10)(a) is not applicable if withholding is based on the obligee's motion or independent action alleging that the obligor is delinquent or has been erratic in making child support payments; or
(2)	The court finds that the child support obligation can be enforced and the child's right to receive support can be ensured without entry of an order for income withholding; or
(3)	The court finds that the obligor has no disposable income subject to withholding or that withholding is not feasible for any other reason.
If the obligor fails to respond or appear, the court shall hear evidence and enter an order as provided herein.
(c1)	Immediate income withholding.  When a new or modified child support order is entered, the district court judge shall, after hearing evidence regarding the obligor's disposable income, place the obligor under an order for immediate income withholding, unless:
(1)	One of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding; or
(2)	A written agreement is reached between the parties that provides for an alternative arrangement.
When ordered, immediate income withholding shall not apply if information is unavailable regarding an obligor's disposable income or if the obligor is unemployed.
When immediate income withholding is not ordered or does not apply, the obligor shall be subject to income withholding pursuant to G.S. 110-136.4(a)	and (b).
(d)	Notice to payor and obligor. If an order for income withholding is entered, a notice of obligation to withhold shall be served on the payor as required by G.S. 1A-1, Rule 4, Rules of Civil Procedure.  Copies of this notice shall be filed with the clerk of court and served upon the obligor by first-class mail.
(d1)	Subsequent payors.  If the obligor changes employment or source of disposable income, notice to subsequent payors of their obligation to withhold shall be served as required by G.S. 1A-1, Rule 4, Rules of Civil Procedure.  Copies of this notice shall be filed with the clerk of court and served upon the obligor by first-class mail.
(d2)	Multiple withholdings.  The obligor shall notify the initiating party if the obligor is subject to another withholding for child support.  In the case of two or more withholdings against one obligor, the obligee or obligees shall attempt to resolve any conflict between the orders in a manner that is fair and equitable to all parties and within the limits specified by G.S. 110-136.6.  If the conflict cannot be so resolved, an injured party, on request, shall be granted a hearing in accordance with the procedure specified in G.S. 110-136.5(a).  The conflict between the withholding orders shall be resolved in accordance with G.S. 110-136.7.
(e)	Modification of withholding. When an order for withholding has been entered under this section, any party may file a motion seeking modification of the withholding based on changed circumstances. The clerk or the court on its own motion may initiate a hearing for modification when it appears that modification of the withholding is required or appropriate. The party shall proceed as provided in this section."
Sec. 3.  This act becomes effective January 1, 1994, and applies to all orders entered on and after that date.