§571-52.2 - Automatic assignment by court or administrative order of future income for payment of child support.

§571-52.2  Automatic assignment by court or
administrative order of future income for payment of child support.  (a) 
Notwithstanding section 571-52, the court shall order an assignment of future
income when:

(1)  The court has ordered any person (hereinafter the
"obligor") to make periodic payments toward the support of a child
pursuant to a court or administrative order, judgment, or decree;

(2)  The court or administrative order, judgment, or
decree provides for an automatic assignment of the obligor's income upon the
obligor's failure to timely pay any child support that the obligor is required
to pay through the child support enforcement agency or directly to the obligee;
and

(3)  The court finds the obligor to be delinquent in
payments in an amount equal to or greater than the sum of payments which would
become due over a one-month period under the order, judgment, or decree
providing for child support.

The order shall take effect without necessity
of further action of the court, except when a hearing is requested under
subsection (c).

(b)  The court or the child support enforcement
agency, on its own motion, may 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 which will become due in the future under the terms of
the support order will be paid.

(c)  The court or the clerk of the court shall
provide the obligor written notice at least fourteen days in advance of
entering an automatic income assignment and inform the obligor the automatic
income assignment will issue on a certain date unless the obligor files with
the court or the clerk of the court a written objection to the automatic
assignment and a written request for a hearing.  If the obligor files the written
objection and the written request, the court or the clerk of the court shall
not issue the automatic assignment of future income until a hearing is held and
the matter resolved.  The court shall establish and implement other notice
procedures as may be necessary to adequately protect the obligor's right to
procedural due process.

(d)  The order for automatic assignment 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.  The order 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 assignment shall continue after the
obligor's requirement to pay future child support has ended if the obligor owes
past due support, and any amount received pursuant to the assignment shall be
applied to satisfy all past due support owed.  The assignment shall be
terminated when appropriate by the court, the clerk of the court, or the child
support enforcement agency; provided that payment of all overdue support shall
not be the sole basis for terminating the assignment.  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.  In the event that the obligee retains private
counsel or proceeds pro se, the obligee shall have primary responsibility for
terminating the assignment.

If the obligee fails to terminate the
assignment when appropriate, the obligee shall reimburse the obligor to the
extent of any overpayment.  If the assignment is not terminated when
appropriate, the obligor may seek reimbursement for any overpayment from the
obligee or from the child support enforcement agency, to the extent the
overpayment was disbursed to the department of human services.

The child support enforcement agency shall
establish procedures by rule in accordance with chapter 91 for the prompt
reimbursement for any overpayment to the obligor.

(e)  An employer receiving an assignment order
shall send the amounts withheld to this State's child support enforcement
agency within five working days after the obligor is paid.  The employer shall
begin withholding no later than the first pay period occurring within seven
business days following the date a copy of the order 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, except that when an
employer receives an income withholding order issued by another state, the
employer shall send the amounts withheld to that state's agency administering
a program under Title IV-D of the Social Security Act and 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
assignment 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
assignment order 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 obligor may remit a sum total of the amounts
in one check, with a listing of the amounts applicable to each obligor.

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

(f)  For each payment made pursuant to an
assignment order, the person making such payment may deduct and retain as an
administrative fee the additional amount of $2 from the income owed to the
obligor.  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
assignment made pursuant to an assignment order shall have priority as against
any garnishment, attachment, execution, or other assignment order, or any other
order 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 section, 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, and the fact that the
obligor may have subsequently paid such delinquencies shall not relieve the
court or the child support enforcement agency of its duty under this subsection
to order the assignment.

(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 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.

(h)  The only basis for contesting a
withholding under this section is a mistake of fact, which, for purposes of
this section, means an error in the amount of current or overdue support or in
the identity of the alleged absent parent.

(i)  In contested cases, the State shall notify
the obligor, within forty-five days, as to whether the withholding of the
obligor's income will occur.

(j)  Obligors may request withholding of their
income prior to the entry of an order for the repayment of a delinquency.

(k)  Notice of automatic income assignment
after a one-month delinquency shall be included in every child support order
entered hereafter in the State.

(l)  If there is more than one obligee, the
amounts withheld from the income of an obligor shall be allocated among the
obligees.  The allocation may be based on each obligee's proportionate share of
the amount of the withholding orders that were served on the employer of the
obligor.  In no case shall the allocation result in a withholding for one of
the support obligations not being implemented.

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

(n)  Notwithstanding any other provision of
law, for purposes of this section, the term "income" shall include
without limitation, salaries, wages, earnings, workers' compensation,
unemployment compensation, disability benefits, commissions, independent
contractor income, and any other entitlement to money including moneys payable
as a pension or as an annuity or retirement or disability or death or other
benefit, or as a return of contributions and interest thereon from the United
States government, or from the State or other political subdivision thereof, or
from any retirement, disability, or annuity system established by any of them
pursuant to statute.

The term "employer", as used in this
section 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. [L 1984, c 207, §3; am L 1985, c 176, §2; am L
1986, c 332, §13; am L 1987, c 161, §2; am L 1990, c 152, §1 and c 176, §2; am
L 1992, c 212, §1; am L 1995, c 125, §§1 to 3; am L 1996, c 25, §1; am L 1997,
c 293, §§22, 23; am L 2000, c 194, §2; am L 2001, c 55, §27; am L 2006, c 34,
§1; am L 2009, c 115, §1]

Rules of Court

  Enforcement of order for payment of support, see HFCR rule
69.

Case Notes

  Neither plaintiff nor members of plaintiff's class had
cognizable state constitutional property interest based on subsection (e) on
any interest accrued on late-paid child support payments; §§576D-10, 661-8, 662-2,
and 662-8 cited by the trial court in its ruling confirmed that these statutes
are silent as to whether plaintiffs possessed a property right in the accrued
interest for payments disbursed outside of the two-day period.  111 H. 367, 141
P.3d 1014.