H*2561 Session 106 (1985-1986)
H*2561(Rat #0295, Act #0195 of 1985) General Bill, By P. Evatt, D.M. Beasley,
McKay, T.F. Rogers, C.L. Sturkie, J.M. White and Wilkins
Similar(S 338)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
20-7-1315, so as to authorize and provide the procedures for the withholding
of various types of income to secure the payment of child support or spousal
support obligations, to authorize civil fines for certain violations, and to
provide certain exceptions by adding Section 20-7-1316 so as to authorize the
recording under certain conditions of an arrearage in support obligations in
office of the clerk of court or register of mesne conveyances to have the same
force and effect as a judgment, and to provide that any federal funds earned
by the clerks of court under contract with the Department of Social Services
pursuant to Title IV-D of the Social Security Act must first be used to
provide adequate staff and equipment to implement and operate the provisions
of Section 20-7-1315.-amended title
03/12/85 House Introduced and read first time HJ-1221
03/12/85 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-1222
03/19/85 House Committee report: Favorable with amendment
Medical, Military, Public and Municipal Affairs
HJ-1386
03/21/85 House Debate adjourned until Tuesday, March 26, 1985 HJ-155
03/26/85 House Objection by Rep. L. Martin HJ-1624
03/26/85 House Amended HJ-1626
03/26/85 House Objection by Rep. Marchant, Lewis & Archibald HJ-1628
03/28/85 House Objection withdrawn by Rep. Archibald, Marchant &
L. Martin
03/28/85 House Amended HJ-1934
03/28/85 House Objection by Rep. Sheheen, Gregory, McEachin, J.
Rogers, Ferguson, HJ-1935
03/28/85 House Objection by Rep. Marchant HJ-1935
04/23/85 House Special order, set for following consideration of
H 2029 (Under H 2881) HJ-2637
05/09/85 House Amended HJ-3122
05/09/85 House Debate interrupted HJ-3125
05/15/85 House Amended HJ-3229
05/15/85 House Debate interrupted HJ-3236
05/16/85 House Amended HJ-3277
05/16/85 House Debate interrupted HJ-3285
05/21/85 House Amended HJ-3323
05/21/85 House Read second time HJ-3344
05/30/85 House Objection withdrawn by Rep. Lewis HJ-3673
06/04/85 House Read third time and sent to Senate HJ-3889
06/05/85 Senate Introduced, read first time, placed on calendar
without reference SJ-2823
06/05/85 Senate Unanimous consent for second reading on next
legislative day SJ-2824
06/05/85 Senate Unanimous consent for third reading on next
legislative day SJ-2824
06/06/85 Senate Read second time SJ-2882
06/11/85 Senate Read third time and enrolled SJ-2930
06/18/85 Ratified R 295
06/24/85 Signed By Governor
06/24/85 Effective date 06/24/85
06/24/85 Act No. 195
07/10/85 Copies available
(A195, R295, H2561)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION
20-7-1315, SO AS TO AUTHORIZE AND PROVIDE THE PROCEDURES FOR THE WITHHOLDING OF
VARIOUS TYPES OF INCOME TO SECURE THE PAYMENT OF CHILD SUPPORT OR SPOUSAL SUPPORT
OBLIGATIONS, TO AUTHORIZE CIVIL FINES FOR CERTAIN VIOLATIONS, AND TO PROVIDE
CERTAIN EXCEPTIONS BY ADDING SECTION 20-7-1316 SO AS TO AUTHORIZE THE RECORDING
UNDER CERTAIN CONDITIONS OF AN ARREARAGE IN SUPPORT OBLIGATIONS IN OFFICE OF THE
CLERK OF COURT OR REGISTER OF MESNE CONVEYANCES TO HAVE THE SAME FORCE AND EFFECT
AS A JUDGMENT, AND TO PROVIDE THAT ANY FEDERAL FUNDS EARNED BY THE CLERKS OF
COURT UNDER CONTRACT WITH THE DEPARTMENT OF SOCIAL SERVICES PURSUANT TO TITLE
IV-D OF THE SOCIAL SECURITY ACT MUST FIRST BE USED TO PROVIDE ADEQUATE STAFF AND
EQUIPMENT TO IMPLEMENT AND OPERATE THE PROVISIONS OF SECTION 20-7-1315.
Be it enacted by the General Assembly of the State of South Carolina:
Definitions
SECTION 1. The 1976 Code is amended by adding:
"Section 20-7-1315. (A) As used in this section:
(1) 'Order for support' means any order of a court which provides for periodic
payments of funds for the support of a child or maintenance of a spouse or former
spouse and support of a child, whether temporary or final, and includes any order
which provides for:
(a) Modification or resumption of support,
(b) Payment of arrearage accrued under a previously existing order, or
(c) Reimbursement of support.
(2) 'Delinquency' means when a support payment owed by an obligor pursuant to
an order of support is overdue in an amount equal to at least one month's support
obligation.
(3) 'Arrearage' means the total amount of unpaid support obligations.
(4) 'Court' as used in this act means Family Court.
(5) 'Income' means any form of payment to an individual regardless of source
including, but not limited to, wages, salary, commission, compensation as an
independent contractor, workers' compensation, disability, annuity and retirement
benefits, and any other payments made by a person, or an agency or department of
the federal, state, or local government provided the income excludes:
(a) Any amounts required by law to be withheld, other than creditor claims,
including but not limited to, federal, state, and local taxes, and social
security and other retirement deductions, and disability contributions.
(b) Any amounts exempted by federal law.
(c) Public assistance payments.
Any other state or local laws which limit or exempt income or the amount or
percentage of income that can be withheld do not apply.
(6) 'Obligor' means an individual who is required to make payments pursuant
to order for support.
(7) 'Obligee' means an individual or the individual's assignee who is entitled
to receive payments pursuant to an order of support.
(8) 'Payor' means any payor of income to an obligor. For purposes of this
section, the South Carolina Employment Security Commission is construed to be an
employer of the obligor for any period of time in which unemployment compensation
is payable to the obligor.
(B)(1) All orders for support entered or modified on or after October 1, 1985,
must contain the obligor's social security number and a provision for income
withholding procedures to take effect in the event a delinquency occurs. These
orders must be construed to contain this withholding provision even if the
provision has been omitted from the written order; provided, the court may order
withholding to begin immediately for good cause shown. The court is required to
make specified written findings to support immediate withholding.
(2) In the case of each obligor against whom an order for support has been
issued or modified prior to October 1, 1985, the order is presumed to contain a
provision for income withholding procedures to take effect in the event a
delinquency occurs without further amendment to the order or further action by
the court.
(3) An obligor may petition the court at any time prior to the occurrence
of a delinquency seeking an order for income withholding procedures to begin
immediately.
(4) Where the obligor makes payments directly to the obligee pursuant to an
order for support and where income withholding procedures take effect, the
provisions to pay directly are superseded by the withholding process and the
obligor and the payor on behalf of the obligor must during the period of
withholding pay this support through the court.
(C)(1) When a delinquency occurs, the clerk of court shall prepare, file, and
serve on the obligor a verified notice of delinquency. In cases where the
obligor makes payments pursuant to an order for support directly to the obligee
and the obligee seeks income withholding, the notice of delinquency must be
verified by the obligee and then served on the obligor by the clerk of court as
with any other notice of delinquency.
(2) The verified notice of delinquency must be served on the obligor by
regular mail addressed to his last known address or place of employment. Upon
mailing the notice the clerk
of court shall file a certificate of mailing stating the name and address to
which the notice was mailed and the date on which it was mailed. In the event
that service cannot be effected as set forth herein, the obligor may be served
as prescribed for service in civil actions.
(3) The notice of delinquency shall inform the obligor that a delinquency
has occurred and shall recite the monthly support obligations of the obligor
pursuant to the order of support, the total amount of the arrearage as of the
date of the notice, and the amount of income to be withheld. The notice must
clearly state that a notice to withhold will be sent to the obligor's current or
subsequent payor, income withholding will begin, and that a judgment lien may be
imposed against the obligor's personal or real property in the amount of the
arrearage pursuant to Section 20-7-1316, unless the obligor files a petition to
stay service in accordance with subsection (D).
(D)(1) The obligor may prevent a notice to withhold from being served on his
payor and prevent the recording of the arrearage pursuant to Section 20-7-1316
by filing a petition to stay service with the clerk of court with jurisdiction
of the matter within ten days of the date that the notice of delinquency is
postmarked; provided, the grounds for granting the petition to stay service are
limited to a dispute concerning the identity of the obligor or the existence or
amount of the arrearage.
(2) Filing of a petition to stay service within the ten days required under
this subsection prohibits the clerk of court from serving the notice to withhold
on any payor of the obligor and prohibits the recordation of the arrearage.
(3) Where a petition to stay service has been filed a hearing on the
petition must be held within thirty days of its filing. The obligor, obligee,
and Department of Social Services, where appropriate, must be notified by the
clerk of court of the date, time, and place of the hearing and the court must
decide the
matter, notify the obligor, and enter an order granting or denying relief or
amending the notice of delinquency within forty-five days of the date the notice
of delinquency was mailed to the obligor. If the court finds that a delinquency
existed when the notice of delinquency was mailed, the court shall order
immediate service of the notice to withhold and the arrearage may be recorded
immediately pursuant to Section 20-7-1316. The court shall inform the obligor
of the time frame within which withholding is to begin and shall provide the
obligor in writing with the information contained in the notice to withhold to
be served on the payor with respect to the withholding.
(4) Upon filing an affidavit with the court stating that a petition to stay
service was not timely filed because the notice of delinquency was not received
and that grounds exist for a petition to stay service as stated in item (1) of
this subsection, the obligor is permitted to file a petition to withdraw the
notice to withhold, to terminate the withholding procedures, and remove the
judgment created by the recording of the arrearage. Income withholding may not,
however, be interrupted unless the court enters an order granting the relief
sought by the obligor based on the limited grounds for a petition to stay
service.
(E) (1) Twenty days following the mailing of the notice of the delinquency
to the obligor and where no petition to stay service has been filed, the clerk
of court shall serve a notice to withhold on the payor or its agent by regular
mail and may record the arrearage pursuant to Section 20-7-1316.
(2) The notice to withhold shall:
(a) Direct any payor to withhold at the obligor's regularly scheduled pay
periods, an amount which, over the period of one month, would constitute one
month's support obligation plus applicable fees pursuant to this section and
costs as provided by Section 20-7-1440;
(b) Direct any payor to withhold an additional amount toward any arrearage
until the arrearage is paid in full; provided, that amounts to be withheld under
(a) and (b) shall not exceed the limits set forth by the Federal Consumer Credit
Protection Act (15 U.S.C. 1673(b));
(c) State the rights, responsibilities, and liabilities of the payor under
this section;
(3) The payor shall then deduct the designated amount pursuant to the notice
to withhold beginning no later than the next regularly scheduled pay period
following the pay period during which the payor was served. Payors need not
change their regular payroll pattern and may combine all withheld amounts into
one check for a particular clerk of court with an itemized statement showing
accounts attributable to each obligor for each obligee. For each instance of
withholding of income, the payor is entitled to receive a fee of up to three
dollars to be deducted from the income of the obligor in addition to the amounts
withheld pursuant to the notice to withhold unless the fee is waived by the
payor.
(4) In cases where there is more than one notice to withhold on a single
obligor, the payor must comply with the notices by withholding the amounts
designated in the notices to the extent possible pursuant to the Federal Consumer
Credit Protection Act (15 U.S.C. 1673 (b)). If the payor cannot fully comply
with the notices because the amounts to be withheld would exceed the limits under
the Federal Consumer Credit Protection Act, the payor shall notify the court in
writing as to its reasons for failing to fully comply.
(5) The payor shall promptly pay the amount withheld to the clerk of court,
in accordance with the notice to withhold and in accordance with any subsequent
notification received from the clerk of court concerning withholding.
(6) Upon the records of the clerk of court reflecting the satisfaction of
an arrearage, the clerk of court shall serve upon the payor by regular mail a
notice of reduction of withholding. This notice shall inform the payor that the
arrearage has been satisfied and to discontinue withholding the additional amount
as prescribed in item 2(b) of this subsection. This reduction shall not,
however, affect the continued withholding of the amount prescribed in item 2(c)
of this subsection.
(7) Within twenty days after the obligor is no longer employed by the payor,
the payor shall return a copy of the notice to withhold to the clerk of court,
and shall notify the clerk of court in writing of the date the obligor's
employment terminated, the date of the obligor's final paycheck, the obligor's
home address, and obligor's new employer and address, if known.
(8) Withholding of income from an obligor under this section has priority
over any other legal process under state law against the same wages. Payment
pursuant to a notice to withhold is a complete defense by the payor against any
claims of the obligor or his creditors as to the sum so paid.
(9) No payor may discharge, refuse to hire, or otherwise penalize any
obligor because of the duty to withhold income.
(10) The responsibility of a payor who employs an obligor to withhold
support from the pay of the obligor ends when the obligor leaves the employ of
the payor. If this termination of employment occurs during the middle of a pay
period, the final amount required to be withheld must be proportionately reduced
in the same percentage that the time worked has to the time of the full pay
period.
(F) (1) The clerk of court may suspend income withholding because of
inability to deliver the income withheld to the obligee due to the obligee's
failure to provide a mailing address or other means of delivery. Upon relocating
the obligee and upon meeting the requirements of notice and service pursuant to
this section, income withholding must be reinstated.
(2) An obligor may petition the court at any time to terminate income
withholding when payments pursuant to a notice to withhold have been made for at
least one year, all arrearages have been paid in full, and the court finds that
the obligor has demonstrated a continuing ability to pay. For any petition
brought under this item the court may order the withdrawal of the notice to
withhold and terminate the withholding procedures unless it finds good cause for
denying the petition. If the termination is granted and subsequently a
delinquency occurs, the clerk of court shall reinstate withholding procedures by
complying with all requirements for notice and service pursuant to this section.
(3) The clerk of court shall serve on the payor, by regular mail, a copy of
any order entered pursuant to this subsection or subsection (D)(4) that affects
the duties of the payor. In the event that service cannot be effected as set
forth herein, the payor may be served as prescribed for service in civil actions.
(4) The notice to withhold shall continue to be binding upon the payor until
service of any order of the court entered under this subsection or subsection
(D)(4) or until notice is served on the payor by the clerk of court that the
underlying order is, for other reasons such as expiration of the support
obligation, no longer in effect.
(G) (1) An obligee who is receiving income withholding payments under this
section shall notify the clerk of court of any change of address within seven
days of the change.
(2) An obligee who is a recipient of public aid must send a copy of any
notice of delinquency filed pursuant to subsection (C) to the Division of Child
Support of the South Carolina Department of Social Services.
(3) An obligor whose income is being withheld or who has been served with
a notice of delinquency pursuant to this section shall notify the clerk of court
of any new payor within seven days after his employment commences.
(4) Upon receiving any other support payment including, but not limited to,
a tax offset under federal or state law or any payment toward an arrearage, the
Department of Social Services, within the time permitted by Title IV-D of the
Social Security Act, shall provide notice of the payment to the clerk of court.
(5) Any clerk of court which collects, receives, or disburses payment
pursuant to an order for support or a notice to withhold shall maintain complete,
accurate, and clear records of all payments and their disbursements. Certified
copies of payment records maintained by the clerk of court must, without further
proof, be admitted into evidence in any legal proceedings under this section.
(6) The Department of Social Services and Office of the Court Administration
shall design suggested legal forms for proceeding under this section and Section
20-7-1316 and shall make these forms available to the courts and also
informational materials which describe the procedures and remedies set forth
herein for distribution to all parties in support actions.
(H) (1) Where a payor wilfully fails to withhold or pay over income pursuant
to a notice to withhold, the court upon notice and hearing may enter judgment and
direct the issuance of an execution against the payor for the total amount that
the payor wilfully failed to withhold; provided, that notwithstanding any other
provision of Section 20-7-1315, any payor employing an obligor who receives a
notice to withhold concerning that obligor may elect, if he has less than
twenty-five employees, to perform this withholding or may elect not to perform
this withholding. If this payor/employer elects not to perform this withholding,
he is not subject to any court or other sanction, penalty or liability. A payor
who wilfully refuses to hire, discharge, or otherwise penalize an obligor as
prohibited by subsection (E)(9) is subject to a civil fine not to exceed $500
which may be imposed by the court in its discretion.
(2) If an obligor, obligee, or the Department of Social Services wilfully
initiates a false proceeding under this section or wilfully fails to comply with
the requirements of this section, punishment for contempt may be imposed.
(I) The rights, remedies, duties, and penalties created by this section are
in addition to any other rights, remedies, duties, and penalties otherwise
provided by law.
(J) The Office of Court Administration after consultation with the Department
of Social Services is authorized to promulgate those regulations necessary to
implement the provisions of this section."
Funds must be used
SECTION 2. Notwithstanding existing county funds allocated to the clerks of
court, any federal funds earned by the clerks of court under a contract with the
Department of Social Services pursuant to Title IV-D of the Social Security Act
must first be used by the family court section of the respective offices of the
clerks of court to provide adequate staff and equipment to implement and operate
the provisions of Section 20-7-1315. Thereafter, excess funds shall revert to
the general fund of the county.
Notice must be given
SECTION 3. The 1976 Code is amended by adding:
"Section 20-7-1316. When a delinquency occurs as defined in Section
20-7-1315, the obligor must be given notice pursuant to Section 20-7-1315(C) of
the proposed lien. Where no petition to stay service is timely filed or where
no relief is granted to the obligor pursuant to Section 20-7-1315(D), the
arrearage may be recorded or provided for in Section 20-7-1315(E) in the
appropriate index in the office of the Clerk of Court or Register of Mesne
Conveyances. Upon recordation the arrearage has the same force and effect as a
judgment and it is cumulative to the extent of any and all past due support,
until the arrearage is paid in full. The judgment may be recorded in any county
in which the obligor resides or in which he owns real property by the filing of
a transcript of judgment in that county. A lien imposed pursuant to this section
is not dischargeable in bankruptcy."
Time effective
SECTION 4. This act shall take effect upon approval by the Governor. |