2007 Regular Session
To: Public Health and Human Services
By: Representative Holland
AN ACT TO AMEND SECTION 43-19-34, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT AN ARREARAGE IN CHILD SUPPORT PAYMENTS BY A NONCUSTODIAL PARENT SHALL NOT BE A BAR TO A REVIEW OF THE SUPPORT ORDER BY THE DEPARTMENT OF HUMAN SERVICES AND A DOWNWARD MODIFICATION OF SUPPORT PAYMENTS; TO PROVIDE THAT EITHER PARENT OF A CHILD FOR WHOM SUPPORT HAS BEEN ORDERED MAY SEEK AN ADJUSTMENT TO THE SUPPORT ORDER; TO AMEND SECTION 93-11-71, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT IF A COURT FINDS BY CLEAR AND CONVINCING EVIDENCE THAT A PERSON PREVIOUSLY ORDERED TO MAKE CHILD SUPPORT PAYMENTS IS NOT THE BIOLOGICAL FATHER OF THE CHILD OR CHILDREN FOR WHOM SUPPORT HAS BEEN ORDERED, THE COURT SHALL DISESTABLISH PATERNITY AND MAY FORGIVE ANY CHILD SUPPORT ARREARS OF THE PERSON FOR THE RELEVANT CHILD OR CHILDREN IF THE COURT FINDS THAT THE FORGIVENESS OF THE ARREARS IS EQUITABLE UNDER THE CIRCUMSTANCES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-19-34, Mississippi Code of 1972, is amended as follows:
43-19-34. (1) In lieu of legal proceedings instituted to obtain a modification for an order for support, a written stipulated agreement for modification executed by the responsible parent when acknowledged before a clerk of the court having jurisdiction over those matters or a notary public and filed with and approved by the judge of that court shall have the same force and effect, retroactively and prospectively, in accordance with the terms of the agreement as an order for modification of support entered by the court, and shall be enforceable and subject to later modification in the same manner as is provided by law for orders of the court in those cases.
(2) With respect to a child support order in cases initiated or enforced by the Department of Human Services under Title IV-D of the Social Security Act, in which the department has determined that a modification is appropriate, the department shall send a motion and notice of intent to modify the order, together with the proposed modification of the order under this section to the last known mailing address of the defendant. The notice shall specify the date and time certain of the hearing and shall be sent by certified mail, restricted delivery, return receipt requested; notice shall be deemed complete as of the date of delivery as evidenced by the return receipt. The required notice may also be delivered by personal service in accordance with Rule 4 of the Mississippi Rules of Civil Procedure insofar as it may be applied to service of an administrative order or notice. The defendant may accept the proposed modification by signing and returning it to the department before the date of hearing for presentation to the court for approval. If the defendant does not sign and return the proposed modification, the court shall on the date and time previously set for hearing review the proposal and make a determination as to whether it should be approved in whole or in part.
(3) Every three (3) years, upon the request of either parent, or if there is an assignment under Section 43-19-35, upon the request of the Department of Human Services or of either parent, the department, after a review and determination of appropriateness, or either parent may seek an adjustment to a support order being enforced under Section 43-19-31 in accordance with the guidelines established under Section 43-19-101, if the amount of the child support award under the order differs from the amount that would be awarded in accordance with the guidelines, taking into account the best interests of the child involved. No proof of a material change in circumstances is necessary in the three-year review for adjustment under this subsection (3). A preexisting arrearage in support payments shall not serve as a bar to the department's review and adjustment procedure. Proof of a material change in circumstances is necessary for modification outside the three-year cycle.
(4) Any order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification. An upward retroactive modification may be ordered back to the date of the event justifying the upward modification.
(5) If a downward modification is determined to be warranted under the guidelines contained in subsection (3), the noncustodial parent's arrearage, if any, shall not be a basis for contesting the downward modification in any later legal proceedings.
(6) This section shall stand repealed on July 1, 2010.
SECTION 2. Section 93-11-71, Mississippi Code of 1972, is amended as follows:
93-11-71. (1) Whenever a court orders any person to make periodic payments of a sum certain for the maintenance or support of a child, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, a judgment by operation of law shall arise against the obligor in an amount equal to all payments that are then due and owing.
(a) A judgment arising under this section shall have the same effect and be fully enforceable as any other judgment entered in this state. A judicial or administrative action to enforce the judgment may be begun at any time; and
(b) Such judgments arising in other states by operation of law shall be given full faith and credit in this state.
(2) Any judgment arising under the provisions of this section shall operate as a lien upon all the property of the judgment debtor, both real and personal, which lien shall be perfected as to third parties without actual notice thereof only upon enrollment on the judgment roll. The department or attorney representing the party to whom support is owed shall furnish an abstract of the judgment for periodic payments for the maintenance and support of a child, along with sworn documentation of the delinquent child support, to the circuit clerk of the county where the judgment is rendered, and it shall be the duty of the circuit clerk to enroll the judgment on the judgment roll. Liens arising under the provisions of this section may be executed upon and enforced in the same manner and to the same extent as any other judgment.
(3) Notwithstanding the provisions in subsection (2) of this section, any judgment arising under the provisions of this section shall subject the following assets to interception or seizure without regard to the entry of the judgment on the judgment roll of the situs district or jurisdiction:
(a) Periodic or lump-sum payments from a federal, state or local agency, including unemployment compensation, workers' compensation and other benefits;
(b) Winnings from lotteries and gaming winnings that are received in periodic payments made over a period in excess of thirty (30) days;
(c) Assets held in financial institutions;
(d) Settlements and awards resulting from civil actions; and
(e) Public and private retirement funds, only to the extent that the obligor is qualified to receive and receives a lump sum or periodic distribution from the funds.
(4) Notwithstanding the provisions of subsections (1) and (2) of this section, upon a motion filed by the obligor and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness of the arrears is equitable under the circumstances.
(5) In any case in which a child receives assistance from block grants for Temporary Assistance for Needy Families (TANF), and the obligor owes past-due child support, the obligor, if not incapacitated, may be required by the court to participate in any work programs offered by any state agency.
(6) This section shall stand repealed on July 1, 2010.
SECTION 3. This act shall take effect and be in force from and after July 1, 2007.