MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary A

By: Representative Blackmon

AN ACT TO AMEND SECTION 93-11-103, MISSISSIPPI CODE OF 1972, TO REVISE THE ENTRY OF AN ORDER FOR WITHHOLDING; TO REPEAL SECTIONS 93-11-105, 93-11-107 AND 93-11-109, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR NOTICE OF DELINQUENCY, PETITION TO STAY SERVICE AND SERVICE OF ORDERS FOR WITHHOLDING; AND FOR RELATED PURPOSES. 

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

SECTION 1. Section 93-11-103, Mississippi Code of 1972, is amended as follows:

93-11-103. (1) Upon entry of any order for support by a court of this state issued on or after October 1, 1996, the court entering such order shall enter a separate order for withholding which shall take effect immediately without any requirement that the obligor be delinquent in payment. All orders for support issued prior to October 1, 1996, shall, by operation of law, be amended to conform with the provisions contained herein. The clerk of the court shall submit copies of such orders to the obligor's payor, any additional or subsequent payor, and to the Mississippi Department of Human Services State Registry. The clerk of the court, the obligee's attorney, or the department's attorney may serve such immediate order for withholding by first class mail or personal delivery on the obligor's payor, superintendent, manager, agent or subsequent payor, as the case may be. In a case where the obligee's attorney or the department's attorney serves such immediate order, the attorney shall notify the clerk of the court in writing, which notice shall be placed in the court file. There shall be no need for further notice, hearing, order, process or procedure prior to service of said order on the payor or any additional or subsequent payor. The obligor may contest, if grounds exist, service of the order of withholding on additional or subsequent payors, by filing an action with the issuing court. Such filing shall not stay the obligor's duty to support pending judicial determination of the obligor's claim. If the custodial parent is not a recipient of services under Title IV-D of the Social Security Act, and if one of the parties should demonstrate, and the court shall specifically find that there is good cause not to require immediate withholding or a written agreement is reached between the parties which provides for an alternative arrangement, then the noncustodial parent's wages may be exempted from immediate withholding.

(2) All orders for support issued shall:

(a) Contain, or shall be presumed to contain, a provision for monthly income withholding procedures to take effect in the event the obligor becomes delinquent in paying the order for support without further amendment to the order or further action by the court; and

(b) Require that the payor withhold the additional amount for delinquency specified in any order if accompanied by an affidavit of accounting, a certified record of payments, or judgment for delinquency.

(3) The order for withholding shall:

(a) Direct any payor to withhold an amount equal to the order for support;

(b) Direct any payor to withhold an additional amount, not less than ten percent (10%) of the order for support, until payment in full of any delinquency; and

(c) Direct the payor not to withhold in excess of the amounts allowed under Section 303(b) of the Consumer Credit Protection Act, being 15 USCA 1673, as amended.

(4) In cases initiated or enforced by the Department of Human Services pursuant to Title IV-D of the Social Security Act, all such orders for withholding shall permit the Department of Human Services to withhold through said withholding order additional amounts to recover costs incurred through its efforts to secure the support order, including but not limited to all filing fees, court costs, service of process fees, mailing costs, genetic testing fees, the department's attorney's fees; and, in cases where the state or any of its entities or divisions have provided medical services to the child or the child's mother, all medical costs of prenatal care, birthing, postnatal care and any other medical expenses incurred by the child or by the mother as a consequence of her pregnancy or delivery.

(5) At the time the order for withholding is entered, the clerk of the court shall provide a copy of the order for withholding and the order for support to:

(a) The obligor, which shall be accompanied by a statement of the rights, remedies and duties of the obligor under Sections 93-11-101 through 93-11-119; and

(b) The Department of Human Services Central Registry. The clerk of the court shall make copies available to the obligee and the department or its local attorney.

(6) The order for withholding shall remain in effect for as long as the order for support upon which it is based.

(7) The failure of an order for withholding to state an arrearage is not conclusive of the issue of whether an arrearage is owing.

(8) Any order for withholding entered pursuant to this section shall not be considered a garnishment.

(9) All existing orders for support shall become subject to additional withholding if arrearages occur, without the need for judicial or administrative hearing. The Department of Human Services or the obligee or his agent or attorney must send to each delinquent obligor notice that:

(a) The withholding on the arrearage has commenced;

(b) The information has been sent to the employer; and

(c) The obligor may file an action with the issuing court on the grounds of mistake of fact. Such filing must be made within thirty (30) days of receipt of the notice and shall not stay the obligor's duty to support pending judicial determination of the obligor's claim.

(10) An employer who complies with an income withholding notice that is regular on its face shall not be subject to civil liability to any individual or agency for conduct in compliance with the notice.

SECTION 2. Section 93-11-105, Mississippi Code of 1972, which provides for notice of delinquency in support obligations, is repealed.

SECTION 3. Section 93-11-107, Mississippi Code of 1972, which provides for a petition to stay service of a notice of delinquency, is repealed.

SECTION 4. Section 93-11-109, Mississippi Code of 1972, which provides for the service of an order for withholding that is effective upon delinquency, is repealed.

SECTION 5. This act shall take effect and be in force from and after its passage.