HOUSE OF REPRESENTATIVES

H.B. NO.

2332

TWENTY-SIXTH LEGISLATURE, 2012

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to child support.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  Section 571-52, Hawaii Revised Statutes, is amended to read as follows:

     "§571-52  Assignment by court order of future income for payments of support.  (a)  Whenever any person has been ordered to pay an allowance for the support of a child or for the support and maintenance of a spouse or former spouse, and fails or refuses to obey or perform the order and has been adjudged guilty of contempt of court for such failure or refusal, the court may make an order that shall operate as an assignment by the person for the benefit of the child or spouse, of such amounts at such times as may be specified in the order, from any income due or to become due in the future to such person from the person's employer or successor employers, until further order of the court.

     The assignment of the amounts shall be to the clerk of the court where the order is entered if for the support or maintenance of a spouse or former spouse, or to the child support enforcement agency if for the support of a child or if child support and spouse support are contained in the same order.  The order of assignment to the child support enforcement agency shall be in the standard format prescribed by Title IV-D of the Social Security Act, as amended by the child support enforcement agency.  The order of assignment shall be effective immediately after service upon an employer of a true copy of the order, which service may be effected by regular mail, by personal delivery, or by transmission through electronic means.

     Thereafter, the employer [shall], for each pay period, shall withhold from any income due to the person from the employer, and not required to be withheld by any other provision of federal or state law, and transmit to the clerk of the court or child support enforcement agency as set forth in the order, as much as may remain payable to the person for [such] the pay period up to the amount specified in the order of assignment as being payable during the same period.  The person ordered to pay shall inform the court immediately of any change that would affect the order of assignment or the disbursement thereof.

     Compliance by an employer with the order of assignment shall operate as a discharge of the employer's liability to the employee for that portion of the employee's income withheld and transmitted to the clerk of court or child support enforcement agency, as the case may be, whether or not the employer has withheld the correct amount.

     (b)  Notwithstanding the provisions of subsection (a) to the contrary, whenever a court has ordered any person (hereinafter "obligor") to make periodic payments toward the support of a child, upon petition of the person to whom [such] the payments are ordered to be made or that person's assignee, and the court finds the obligor to be delinquent in payments in an amount equal to or greater than the sum of payments that would become due over a one-month period under the order, judgment, or decree providing for child support, the court shall order an assignment of future income, or a portion thereof, of the obligor in an amount adequate to insure that past due payments and payments that will become due in the future under the terms of the support order will be paid.  Such an order shall operate as an assignment by the obligor to the child support enforcement agency and shall be binding upon any person who is or shall become obligated to the obligor for payment of income and who has been served with a copy of the assignment order.

     For each payment made pursuant to an assignment order, the person making [such] the payment may deduct and retain as an administrative fee the additional amount of $2 from the income owed to the obligor.  Any assignment made pursuant to an assignment order shall have priority as against any garnishment, attachment, execution, or other assignment order, or any other order unless otherwise ordered by the court and the same shall not be subject to any of the exemptions or restrictions contained in part III of chapter 651, and chapters 652 and 653.

     For purposes of this subsection, delinquencies in payments shall be computed on the basis of the moneys owed and unpaid on the date that the obligor under the support order has been given notice pursuant to law of the application for the order of assignment.  The fact that the obligor may have subsequently paid such delinquencies shall not relieve the court of its duty under this subsection to order the assignment.

     (c)  An employer withholding income for payment to the child support enforcement agency shall terminate withholding upon receipt of a notice from the child support enforcement agency to terminate income withholding.

     (d)  In addition to any other remedies authorized by law, upon a finding by the court that an employer has failed to comply with an order of assignment to the child support enforcement agency pursuant to this section, the court shall issue to the employer an order directing compliance and may direct the payment of a civil penalty not to exceed $500 for the first occurrence of employer noncompliance and $1,000 for each occurrence thereafter.  The penalty shall be paid to the child support enforcement agency and may be enforced in the same manner as a civil judgment or in any other manner permitted by law.

     [(d)] (e)  It shall be unlawful for any employer to refuse to hire a prospective employee, to discharge an employee, or to take any other disciplinary action against an employee, based in whole or part upon an assignment authorized by this section.  Any employer violating this section shall be guilty of a misdemeanor under section 710-1077(1)(g).

     [(e)] (f)  As used in this section:

     "Employer" includes the United States government, the State, any political subdivision thereof, and any person who is or shall become obligated to the obligor for payment of income.

     "Income" includes salaries, wages, earnings, workers' compensation, disability benefits, commissions, independent contractor income, and any other entitlement to money including moneys payable as a pension, annuity, retirement, disability, death, or other benefit, or as a return of contributions and interest from the United States government, the State, or other political subdivision thereof, or from any retirement, disability, or annuity system established by any of them pursuant to statute."

     SECTION 2.  Section 571-52.2, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsection (g) to read:

     "(g)  It shall be unlawful for any employer to fail to comply with the requirements of this section.  In addition, an employer who fails to comply with an order of assignment of future income, as provided for under this section[, shall]:

     (1)  Shall be liable to the obligee or the obligee's assignee for whom support was required to be paid, for the full amount of all sums ordered to be withheld and transmitted and not otherwise done so[.]; and

     (2)  May be ordered by the court to pay a civil penalty not to exceed $500 for the first occurrence of employer noncompliance and $1,000 for each occurrence thereafter.  The penalty shall be paid to the child support enforcement agency and may be enforced in the same manner as a civil judgment or in any other manner permitted by law."

     2.  By amending subsection (m) to read:

     "(m)  The provisions of section [571-52(d)] 571-52(e) and [(e)] (f) shall apply to all orders for automatic assignments issued under this section."

     SECTION 3.  Section 576E-16, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  Compliance by an employer with the income withholding order issued pursuant to subsection (a) or with the income withholding order or the notice to withhold child support issued pursuant to section 576D-14 shall operate as a discharge of the employer's liability to the responsible parent for that portion of the responsible parent's earnings withheld and transmitted to the agency, whether or not the employer has withheld the correct amount.  For each payment made pursuant to an income withholding order or a notice to withhold child support, the employer may deduct and retain as an administrative fee an additional amount of $2 from the income owed to the responsible parent.  The total amount withheld from the obligor's income, including the administrative fee, may not be in excess of the maximum amounts permitted under section 303(b) of the Consumer Credit Protection Act (15 U.S.C. §1673(b)).  Any income withholding order or notice to withhold child support shall have priority as against any garnishment, attachment, execution, or other income withholding order, or any other order, and shall not be subject to the exemptions or restrictions contained in part III of chapter 651 and in chapters 652 and 653.  An employer who fails to comply with an income withholding order under this section or with an income withholding order or notice to withhold child support issued pursuant to section 576D-14 shall be liable to the obligee or the agency for the full amount of all sums ordered to be withheld and transmitted[.]; provided that in the case of an employer's failure to withhold income for child support, the employer may be ordered by the court to pay a civil penalty not to exceed $500 for the first occurrence of employer noncompliance and $1,000 for each occurrence thereafter; and provided further that the penalty shall be paid to the agency and may be enforced in the same manner as a civil judgment or in any other manner permitted by law.  An employer receiving an income withholding order or a notice to withhold child support shall transmit amounts withheld to the agency within five working days after the responsible parent is paid.  The employer shall begin withholding no later than the first pay period commencing within seven business days following the date a copy of the order or the notice to withhold child support is mailed to the employer.

     As used in this subsection, the term "business day" means a day on which the employer's office is open for regular business. The employer shall withhold funds as directed in the order or the notice to withhold child support, except that when an employer receives an income withholding order issued by another state, the employer shall apply the income withholding law of the state of the obligor's principal place of employment in determining:

     (1)  The employer's fee for processing an income withholding order;

     (2)  The maximum amount permitted to be withheld from the obligor's income under section 303(b) of the Consumer Credit Protection Act (15 U.S.C. §1673(b));

     (3)  The time periods within which the employer must implement the income withholding order and forward the child support payment;

     (4)  The priorities for withholding and allocating income withheld for multiple child support obligees; and

     (5)  Any withholding terms or conditions not specified in the order.

     An employer who complies with an income withholding order or a notice to withhold child support that is regular on its face shall not be subject to civil liability to any person or agency for conduct in compliance with the order.

     An employer who is required to withhold amounts from the income of more than one employee may remit to the agency a sum total of all such amounts in one check with a listing of the amounts applicable to each employee.

     Within two working days after receipt of the amounts withheld by the employer, the agency shall disburse the amounts to the obligee for the benefit of the child, except that the agency may delay the distribution of collections toward arrearages until resolution of any timely requested hearing with respect to such arrearages."

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Child Support; Income Withholding; Penalties for Noncompliance

 

Description:

Establishes civil fines for an employer's failure to comply with an income withholding order for child support.

 

 

 

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